In 2014, S. M., a 25-year-old man, was prosecuted in Bukavu for sexually assaulting a 16-year-old girl, C. B. K., with the alleged aggravating circumstance of transmitting HIV. The accused claimed that he believed she was 18 and that they had cohabited consensually for five months. The victim reported being coerced into the sexual relationship but initially trusted him due to promises of a future marriage.
Medical evidence confirmed the victim’s HIV-positive status in March 2014, after the alleged incidents, but there was no proof of her status prior to the sexual encounters, nor of the accused’s HIV status. No virological or phylogenetic testing was conducted to establish transmission. The lack of concrete scientific evidence meant the case relied heavily on testimonies rather than objective proof.
In October 2015, the Bukavu trial court convicted S. M. of child rape, imposing a relatively light sentence of 16 months’ imprisonment and a fine, noting the absence of proof that HIV had been transmitted. The victim also withdrew her civil claim.
The prosecution appealed, arguing the sentence was too lenient. In September 2016, the South-Kivu Court of Appeal found the appeal valid, emphasizing that the accused should have known his HIV status before engaging in sexual activity and ruling that his claimed ignorance did not exempt him from responsibility. Despite no conclusive scientific evidence of HIV transmission, the court interpreted this as demonstrating intent or recklessness and increased the sentence to life imprisonment and a fine of 200,000 Congolese francs.
