HIV-positive woman, 19, gets 24 months wholly suspended for intercourse with underage boy as court finds no transmission risk
A 19-year-old Form 4 pupil at a secondary school in Masvingo Rural has escaped the mandatory 10-year jail term for having sexual intercourse with a young person after the High Court found her viral load was suppressed to the point where she could not transmit HIV.
High Court judge Christopher Dube-Banda instead gave her 24 months’ imprisonment, wholly suspended.
The girl, who is currently sitting her O Level examinations, was convicted under Section 80 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The section imposes a mandatory minimum of 10 years where it is proved that the convicted person was HIV positive at the time of the offence, unless special circumstances exist.
The complainant is a 15-year-old Form 1 boy. The court heard that he proposed to the accused earlier this year and the two began having sexual intercourse. The matter came to light when his parents discovered the relationship and filed a police report.
The accused’s lawyer, Calisto Mutema of Ruvengo, Maboke and Company, argued that special circumstances justified a lighter sentence.
He produced medical records showing the accused’s viral load was suppressed to a level at which sexual transmission was not possible, a position now recognised by the World Health Organisation. The boy had also tested HIV negative, which supported that evidence.
Mutema further argued that it was the boy who had pursued the relationship and had lied about his age and occupation. He told the court the complainant had taken advantage of his large build and told the accused he was working as a mechanic.
He also submitted that the accused was a youthful first offender.
Justice Dube-Banda accepted the submissions. He found that the cumulative effect of the boy’s deliberate misrepresentation of his age and occupation to obtain consent, the uncertainty around his true age, the unchallenged medical evidence that the accused’s viral load was not capable of sexual transmission – which directly addressed the harm Section 80 seeks to prevent – the complainant’s own negative HIV result, and the accused’s youth, clean record and imminent final examinations, amounted to special circumstances.
