Govt hailed for repealing criminal law on wilful transmission of HIV

The Zimbabwe government has been hailed for moving to repeal criminal laws enacted to try to prevent the spread of the human immunodeficiency virus (HIV), with officials conceding the regulations have failed to slow transmission of the deadly virus.

The laws impose criminal penalties on people who know they have HIV and engage in behaviours such as sexual activity or needle sharing that might transmit the virus to others, without disclosing their infection status.

The Zimbabwe Civil Liberties and Drug Network (ZCLDN) welcomed the announcement by Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi that the proposed amendments would be incorporated in the Marriages Amendment Bill, which is at drafting stage, adding this was in line with global trends and standards.

Section 79 (1) of the Criminal Codification and Reform Act on deliberate transmission of HIV reads: “Any person who knowingly that he or she is infected with HIV, or realising that there is a real risk or possibility that he or she is infected with HIV, intentionally does anything or permits the doing of anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person and shall be liable to imprisonment for a period not exceeding twenty years.
“It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned knew that the accused as infected with HIV and consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.”

Ziyambi told the National Assembly last week criminalisation is not a particularly useful tool in addressing HIV transmission, and embody the continued fear and stigma associated with HIV and serve to perpetuate a lack of awareness and understanding about existing biomedical interventions.

“Indeed when the legislation came into effect, the thinking there was that, we need to control the spread of HIV by criminalising those who transmit it to partners willingly,” Ziyambi said in response to a question lodged by Zengeza West MDC MP Job Sikhala what government was doing to decriminalise the deliberate spread of HIV by sexual partners.

“But global thinking is that the law stigmatises people living with IV and AIDS. Studies have shown that it does not produce the intended results that it is intended to achieve and so what the ministry is going to do is repeal that section of the law.”

Ziyambi said: “We are looking at perhaps introducing that amendment through the Marriage Bill Act that is due to come.” 
More than 13 percent of 13 million people in Zimbabwe have been diagnosed with HIV, according to the Health and Child Care ministry.

About a third of them take antiretroviral therapy, which can virtually eliminate the possibility of transmitting the virus to others.
Few HIV criminalisation laws consider whether an HIV-positive person took measures to reduce the risk of transmitting the virus, the authors write.

Some Zimbabweans have been prosecuted for nondisclosure of HIV infection even when they were using condoms or taking antiviral drugs that made transmission very unlikely. ZCLDN said the global thinking is that this legal provision stigmatises People Living With HIV/Aids (PLWHIV) and as an organisation that deals with key populations, we warmly welcome the Justice minister’s response.

“Zimbabwe should keep abreast with modern trends especially regarding the rights of key populations who for years have faced stigma, discrimination, unlawful arrests, incarceration and untimely deaths,” the rights group said.

“As ZCLDN, we note with concern that the law besides causing stigma to PLWHIV, was being used by other people to settle personal differences, resulting in some PLWHIV hauled before the courts of law and serving time in prison.”

According to the Oslo Declaration on HIV criminalisation, the practice was doing more harm than good to public health and human rights. A growing body of evidence suggests that the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission is doing more harm than good in terms of its impact on public health and human rights.

“As ZCLDN, our suggestion is that a better alternative to the use of the criminal law, are measures that create an environment that enable people to seek testing, support and timely treatment, and to safely disclose their HIV status.

“We also urge people including People Who Use Drugs, to always practice safe sex at all times as the wilful transmission of the virus is a malicious and deliberate act; it is premeditated with the intent to injure.

“In the same light we hope that the government will consider the issue of drug use in the current as the country laws have not helped to decrease the use of illicit drugs,” the ZCLDN said in a statement. 

HIV criminal-exposure laws have engendered debate about their effectiveness since 1986, when states first enacted them. The laws were intended to encourage people who tested positive for HIV to disclose the fact to potential sex partners and to discourage behaviours that could expose others.

Some feared the laws could have the reverse effect and increase transmission by discouraging testing; if people don’t know they have the virus, they can’t be prosecuted under these laws.

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