Under Lesotho’s Sexual Offences Act of 2003, if a person is found guilty of a sexual offence and is living with HIV, the legislated sentence is the death penalty.
Article 52 (2) of the 2012 Lesotho Penal Code criminalises non-disclosure of HIV as an “unlawful sexual act”, alongside STIs and other life-threatening diseases. Under the Sexual Health Offences Act an unlawful sexual act constitutes a sexual offence (section 3).
In November 2018 a man was convicted of a sexual offence and his HIV positive status revealed. As of December 2019 his case is before the High Court.
The 2003 Sexual Offences Act provides enhanced sentencing for “unlawful sexual acts”, that can lead to a life sentence for people who test HIV-positive during a court ordered HIV test (section 30). Marriage or any other relationship is not considered a defence.
The Penal Code Act
Part II – Offences against the person
Unlawful sexual act
52(2) A sexual act is unlawful if committed under the following circumstances: (…)
(i) a perpetrator, knowing or having reasonable grounds to believe that he or she is infected with a sexually transmittable disease, the human immunodeficiency virus or other life-threatening disease, does not, before committing the sexual act, disclose to the complainant that he or she is so infected.
Part II – Sexual offences
Unlawful sexual act
3(2) A person who commits an unlawful sexual act with another person, or causes another person to commit an unlawful sexual act commits an offence.
3(3) Marriage or any other relationship shall not be a defence against a charge under this Act where it is shown that:
(b) the accused spouse or partner had or was reasonably suspected to have sexually transmissible disease or other life-threatening disease.
Sexual Offences Act, 2003
Part VII – Rights of Complainant and Duties of Prosecutor
Compulsory Human Immunodeficiency Virus (HIV) Test
30(4). Where a conviction is secured, the results of the test done pursuant to subsection (3) shall be tendered in evidence for the purposes of sentence.
Part VIII – Penalties
32. A person who is convicted of an offence of a sexual nature shall, subject to the provisions of section 31, be liable –
(a)(vii) where a person is infected with the human immunodeficiency virus and at the time of the commission of the offence the person had knowledge or reasonable suspicion of the infection, to the death penalty.
The HIV and AIDS Legal Environment Assessment report presents the review of laws and policies in the country and how they are infringing on people’s rights and their access to services. It explores and suggests recommendations for creating and strengthening an enabling environment that promotes an effective national HIV response in accordance with the National Strategic Framework for HIV and AIDS and sexually transmitted infections (STIs) 2012/13- 2015/16 in Lesotho
Our thanks to UNAIDS for their research assistance to confirm current relevant legislation.