Congo’s HIV-specific criminal law allows for a number of circumstances precluding criminal liability among all the francophone African countries with HIV-specific laws. The wording of the proposed bill was changed following a workshop convened by civil society in 2009 in accordance with UNAIDS’ recommendations.
Under this law, no one can be prosecuted where transmission or exposure results from mother-to-child transmission, an act that does not carry any significant risk, when the person living with HIV was not aware of their status or their partner had been informed, when they had practiced safe sex. It also precludes cases of alleged non-disclosure if the person living with HIV was afraid of coming to serious harm by disclosing their status to their partner.
Although there have been no reported cases using Congo’s HIV-specific law, just prior to the law’s enactment, in February 2011, the Criminal Chamber of the Court of Appeal of Pointe-Noire sentenced an HIV-positive man to 15 years in prison and a substantial fine after finding him criminally liable for infecting his wife. The Court considered him guilty under section 301 and 302 of the criminal code – attempting poisoning through the administration of a substance likely to result in death.
Act No. 30-2011 on combating HIV and AIDS and protecting the rights of people living with HIV
Article 41: Any intentional transmission of HIV to others is a crime punishable by the penalties provided for in article 46 of this law.
Article 42: No one may be prosecuted or tried under this or any other law for HIV transmission or exposure where such transmission or exposure results from
– mother-to-child transmission of HIV before, during childbirth or during breastfeeding;
– an act that does not involve any significant risk of HIV transmission;
– a person living with HIV who did not know his or her positive HIV status at the time of the act;
– a person living with HIV who has practiced safe sex;
– a person living with HIV who has informed his or her sexual partner of his or her HIV status before the act involving a significant risk of HIV transmission;
– a situation in which the sexual partner knew the positive HIV status of the person living with HIV;
– a person living with HIV who has failed to inform his or her sexual partner because of a justified fear of serious harm from the partner.
Report presenting the results of a survey on HIV criminalization in African countries where French is spoken, conducted from May to September 2017.
Authors: Stéphanie Claivaz-Loranger & Cécile Kazatchkine for the Canadian HIV Legal Network and HIV JUSTICE WORLDWIDE