Overview
In 2008, the Democratic Republic of Congo (DRC) adopted an omnibus HIV law that aimed to protect people living with HIV. However, the law also included provisions for criminalisation of “deliberate” HIV transmission (Article 45), and HIV non-disclosure (Article 41).
Members of civil society in the DRC mobilised in 2010 to reform these problematic HIV criminalisation provisions.
In 2018, after eight years of civil society lobbying, parliamentarians voted to amend Article 41 (non-disclosure) and repeal Article 45 (‘deliberate’ HIV transmission).
Prosecutions for the “deliberate” transmission of an incurable sexual transmitted diseases, including HIV, are still possible under Article 174i. In addition, under article 177, the “deliberate” transmission of a sexually transmitted infection, including HIV, to a child is punishable by a life sentence.
We are aware of at least 6 cases – of prosecution or threat of prosecutions – for HIV under the 2008 law. Most prosecutions to date have been unsuccessful, with the exception of those where the accused was also prosecuted for sexual assault.
Of note, in 2015 a woman was accused under both article 41 and 45. The complainant did not contract HIV. The Court acquitted the woman stating that intent had not been proven as she had indicated always having used female condoms. She was also on treatment.
HJN is currently working to confirm details regarding the most recent case of a man charged with ‘deliberate’ HIV transmission (August 2020).
Laws
Law No. 08/011 of 14 July 2008 for the protection of the rights of people living with HIV/AIDS and affected persons.
Article 41 – A person who knows that he or she is HIV-positive must inform his or her sexual partner within a reasonable time and before having sex. However, if, in the light of that period, the person concerned fails to inform his sexual partner, the doctor may, exceptionally, derogate from professional secrecy
Law n°06/018 of 20 July 2006 amending and supplementing the Decree of 30 January 1940 on the Criminal Code
Article 174 i – Anyone who deliberately infects a person with an incurable sexually transmitted infection shall be punished by a life sentence of penal servitude and a fine of two hundred thousand Congolese francs.
Law n°009/001 of 10 January 2009 on the protection of children
Article 177 – Anyone who deliberately infects a child with a sexually transmitted infection, including HIV/AIDS, is punished by life imprisonment and a fine of between five hundred thousand and one million Congolese francs.
Further resources
Describes civil society efforts to reform the HIV law in the Democratic Republic of Congo and their outcome in 2018.
This document is in French.
Analysis of the Congolese legal framework, conducted in collaboration with UNDP, addressing issues of criminalization of key populations and including a section on the criminalization of HIV transmission in the DRC (page 61). Since the publication of this report, the legislative provisions criminalizing sexual transmission and/or exposure to HIV have been amended.
This document is in French.
Acknowledgements
Report presenting the results of a survey on HIV criminalization in African countries where French is spoken (hereinafter "Francophone Africa"), conducted from May to September 2017.
Authors: Stéphanie Claivaz-Loranger & Cécile Kazatchkine for the Canadian HIV Legal Network and HIV JUSTICE WORLDWIDE
