Guinea Bissau’s HIV-specific law is based on the highly problematic AWARE-HIV/AIDS Model Law (also known as the N’Djamena Model Law). The N’Djamena Model Law was intended to protect people with HIV from discrimination, unfortunately it also makes it a crime to “intentionally” transmit or expose another person to HIV. This law is poorly worded, overly broad and vague.
Article 26 of Guinea Bissau’s HIV-specific law requires a person to disclose their HIV status within six weeks of diagnosis.
Article 37 criminalises the “deliberate” transmission of HIV although this does not require HIV transmission or for the person to have an intention to transmit HIV. The law does not provide a defence where there was no significant risk of transmission. It is also written broadly enough to apply to acts of mother-to-child transmission of HIV.
Guinea Bissau’s reproductive Health and Family Planning Law of 2010 also includes a criminal provision against the “deliberate” transmission of HIV/AIDS.
HJN is not aware of any reported cases of HIV criminalisation in Guinea Bissau to date.
Law No. 5/2007 of September 10, 2007 on the Prevention, Treatment and Control of HIV / AIDS
ARTICLE 12 (Sanctions for risky Practices and Behaviours)
- Will receive a prison sentence of 1 to 3 years, with a fine of 150,000.00 to 500,000.00 cfa francs, someone who, through inattention, carelessness, intention, negligence or non-compliance with the rules, as per instructions in the previous article, unintentionally infect a person with HIV during the exercise of their profession.
- A ban on exercising for a period not more than 12 months may be pronounced against the accused.
ARTICLE 26 (Announcement to Spouses and Sexual Partners)
- Anyone with HIV should inform of their HIV status their spouse or partner as soon as possible. This period may not exceed six (6) weeks from the date knowledge of one’s HIV status was gained.
- The services involved must give the psychosocial support necessary for the provision of information to the person infected with HIV, their spouse or sexual partner . The hospital establishment must above all ensure that that information is given and that the means available are adapted to possible communication difficulties and understanding of the patient and their spouse, or their sexual partners.
- In the event that the person concerned, whose status just got known, refuses to submit voluntarily to the obligation to inform, provided for in point 1 of this Article, immediately the doctor or any other qualified paramedical staff of the hospital establishment informed by the health structures concerned, may inform the spouse or sexual partner, without violating the provisions on medical confidentiality provided for by applicable laws.
OF VOLUNTARY TRANSMISSION OF HIV
ARTICLE 37 (Sanctions for Acts of Voluntary Transmission of HIV)
- Someone who has voluntarily transmitted HIV/AIDS-infected substances is charged with the act of deliberately transmitting HIV. Is accomplice of Act of Voluntary Transmission of HIV any PLWHIV or not, any doctor, therapist, pharmacist and any person exercising a medical or paramedical profession, as well as any medical student, student or employee of pharmacy, herbarium, salesman of surgical instruments, which will have indicated, favorably or granted or procured the means to commit the offense provided for in article 35 of this law.
- The authors and accomplices of the acts of voluntary transmission of HIV will be sentenced to 2 to 12 years in prison.
- Any attempt to provide information will be punished.
Reproductive Health and Family Planning Law - 2010
CHAPTER VI CRIMINAL PROVISIONS
Article 19 Conditions of incrimination 1. Conditions of criminalization and prosecution of acts that violate sexual and reproductive health rights, as well as violations of the relevant provisions of this law, shall be fixed by law. (a) – All forms of violence against women and children in general, and pedophilia in particular. (b) Voluntary transmission of HIV / AIDS; c) Exploitation in all forms of prostitution of women and children.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.