Guinea has an HIV-specific law, however, to our knowledge, there been no reported cases of criminalisation to date.
The law, Ordinance No. 056/2009/PRG/SGG, enacted in 2005 contains provisions penalising the “deliberate” transmission of HIV. It does so through Article 34, which criminalises “deliberate” transmission through “sexual or blood transmission”. It is not clear whether this includes transmission through a blood donation, or whether this is limited to direct blood contact. Additionally, Article 35 and Article 36 further criminalise intentional transmission.
In 2009 an amendment was introduced aiming to limit the use of the criminal law, and specified, in Article 37, a number of circumstances limiting criminal liability. These are: cases of mother-to-child transmission, acts carrying negligible risk of transmission, cases where the person living with HIV is not aware of their status, cases where the person living with HIV has disclosed to their partner and cases where the partner is aware of the status of the person living with HIV, cases where the person living with HIV has taken steps to protect their partner such as using a condom.
Ordinance No. 056/2009/PRG/SGG amending Act L/2005/025/AN of 22 November 2005 on the prevention, care and control of HIV/AIDS in the Republic of Guinea
Article 1: definitions of key terms and expressions
Voluntary HIV transmission: any calculated attack on a person’s life by the inoculation of HIV-infected substances, however these substances have been used or administered and the consequences of this inoculation. Alone attempted sexual or blood contamination is considered to be acts of voluntary HIV transmission. On the other hand, the transmission of the virus by a mother to her child is not considered a malicious act of wilful transmission whether this transmission occurred before, during or after the birth of the child.
Article 34: Any deliberate transmission of HIV through sexual or blood transmission is considered a crime.
Article 35: Any person infected with HIV who knows his HIV status and who has unprotected sexual intercourse with an uninformed or unwilling person for the proven purpose of infecting them shall be punished by imprisonment for a term of 6 months to 2 years and a fine of 500,000 to 2,000,000 Guinean francs.
Article 36: Any person infected with HIV who knows his HIV status and who, by the use of force or coercion, maintains unprotected sexual relations with a vulnerable or unprotected person with the proven aim of infecting them shall be punished by imprisonment from 1 to 3 years and a fine of 1,000,000 to 3,000,000 Guinean francs without prejudice to the provisions of the Criminal Code.
Article 37: No person shall be prosecuted or tried under this order for HIV transmission or exposure where:
(a) HIV was transmitted by an infected mother to her child before the child was born during childbirth or while breastfeeding;
(b) The act that caused the said transmission or exposure did not, a priori, pose a significant risk of HIV transmission;
(c) The PLWHA did not know her positive HIV status at the time of the act that caused the transmission or exposure;
(d) The said transmission or exposure occurred during sexual intercourse, which is a priori protected, protection is provided through the use of condoms throughout the duration of the intercourse, for example;
(e) The PLWHA has informed his or her sexual partner of his or her HIV status before the act involving a significant risk of HIV transmission and resulting in such transmission or exposure;
(f) The sexual partner knew the positive HIV status of the PLWHA before the act that entailed a significant risk of HIV transmission and resulted in transmission or exposure.
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