Overview
Ghana’s HIV-specific criminal law sits within the Domestic Violence Act, criminalising wilful sexual transmission of HIV and other STIs. The law makes it an offence for a person living with HIV to commit or threaten to commit particular acts with a current or previous domestic partner, including having sexual contact without making the partner aware they have HIV or another sexually transmitted disease. The penalty is a fine and/or up to two years’ imprisonment.
In addition, Ghana’s National HIV and AIDS, STI Policy states that “the Criminal Offences Act 1960 (Act 29) should be used to prosecute the offenders of wilful transmission” but excluding the following circumstances:
- When there is no transmission or significant risk of transmission
- When the alleged perpetrator does not know if he or she is living with HIV
- When the person involved does not understand HIV transmission
- When the person disclosed his or her HIV positive status to his or her sex partner, or has reason to believe in good faith that his or her status is already known to the partner
- In the case of nondisclosure of HIV status because of fear of violence or other negative consequences of disclosure
- When reasonable measures have been taken to reduce the risk of transmission, such as condom use
- When the parties involved previously agreed on a level of mutually acceptable risk.
Ghana’s National HIV and AIDS, STI Policy also includes the constructive provision that aside from other provision in the policy, or any law on wilful transmission, a healthcare provider shall not inform the partner of a person living with HIV, particularly when that person is a woman, where there is reason to believe that doing so may result in violence, abandonment, or other severe negative effects on the physical or mental health and safety of the person, their children or others close to them.
The only known HIV criminalisation case (2012) relates to a case against an HIV-positive man who was arrested after being accused of intentionally infecting several women with HIV. Little is known about the case except a report that the man was arrested by police from the Domestic Violence and Victim Support Unit during a live radio interview at Happy FM. The report states that while there, the man confessed in the presence of one those he’s alleged to have infected.
Laws
Domestic Violence Act, 2007 (Act 732)
s1 Meaning of Domestic Violence
(b)(ii) Domestic violence means engaging, within the context of a previous or existing domestic relationship, in specific acts, threats to commit, or acts likely to result in sexual abuse, namely … sexual contact by a person aware of being infected with human immunodeficiency virus (HIV) or any other sexually transmitted disease with another person without that other person being given prior information of the infection.
s3 Prohibition of domestic violence
(2) a person in a domestic relationship who engages in domestic violence commits an offence and is liable on summary conviction to a fine of not more than five hundred penalty units or to a term of imprisonment of not more than two years or to both.
Criminal Code, 1960 (Act 29)
Section 84—Assault
Whoever unlawfully assaults any person is guilty of a misdemeanour.
Section 85—Different Kinds of Assault
(1) “Assault” includes
(a) assault and battery
(b) assault without actual battery
(c) imprisonment.
(2) Every assault is unlawful unless it is justified on one of the grounds mentioned in Chapter 1 of this Part.
National HIV and AIDS, STI Policy
The Criminal Offences Act, 1960 (Act 29) should be used to prosecute the offenders of wilful transmission under the circumstances provided in the policy.
3.13. Wilful Transmission
This policy supports the use of existing standards of evidence, international best practice standards and a range of offences under the Criminal Offences Act, 1960 (Act 29) and the Domestic Violence Act, 2007 (Act 732) to prosecute offenders for the wilful transmission of HIV. Criminal law should not be used, at least in the following circumstances, by the prosecution for a conviction of wilful transmission [noting UNAIDS Criminalisation of HIV Transmission Policy Brief. 2008].
- When there is no transmission or significant risk of transmission
- When the alleged perpetrator does not know if he or she is living with HIV
- When the person involved does not understand HIV transmission
- When the person disclosed his or her HIV positive status to his or her sex partner, or has reason to believe in good faith that his or her status is already known to the partner
- In the case of nondisclosure of HIV status because of fear of violence or other negative consequences of disclosure
- When reasonable measures have been taken to reduce the risk of transmission, such as condom use
- When the parties involved previously agreed on a level of mutually acceptable risk.
3.7 Confidentiality Despite the provision of this policy, or any law on wilful transmission, a healthcare provider shall, in the best interest of the PLHIV, not inform a partner―particularly in the case of a woman―where there is a reasonable apprehension that the information may result in violence, abandonment, or actions that may have a severe negative effect on the physical or mental health and safety of the HIV positive person, the person’s children, or someone who is close to the person [noting http://data.unaids.org/pub/Manual/2007/20071128_ipu_handbook_en.pdf, pp. 90–91]
Acknowledgements
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.