Mauritania enacted an HIV-specific law in 2007 which states that “anyone wilfully inoculating HIV-infected substances” (including through sex) is guilty of “voluntary transmission”, an offense punishable by up to 20 years in prison.
The law allows for any person who is aware of their HIV-positive status and has “unprotected sex” without disclosing to be prosecuted for “voluntary transmission” even if the partner is living with HIV or no transmission is alleged. Actual intention to transmit HIV or to cause harm is not required. Here the prison sentence ranges from 10 to 20 years and a fine of up to 5 millions Ouguiyas (around 134 000 USD). .
In cases of negligence, such acts are punishable by a sentence of up to 5 years in prison.
The law also provides for enhanced sentencing in cases of non-consensual sex if the individual committing the offense was aware of their HIV-positive status.
The one reported HIV-related case in Mauritania did not reach court after the judge suggested the family reach an agreement outside the court, thus avoiding having to judge their daughter (the complainant) for having sex out of wedlock. These types of agreements are said to be favoured by judges in Mauritania to avoid some of the harsh punishments provided by the law (stoning, whipping for sex out of wedlock etc). Similarly, prosecutions for sexual assaults are rare in Mauritania to avoid bringing dishonour to the families of the victims.
Law No. 2007.042 on HIV/AIDS prevention, care and control
Article 1:[…] Voluntary transmission of HIV: any attempt on a person’s life by the inoculation of HIV-infected substances, in any manner whatsoever, whether used or administered and regardless of the consequences thereof. The inoculation of HIV-infected substances, voluntary transmission through sexual and/or blood transmission shall be deemed to be inoculation…[…]
Article 23: Anyone who has voluntarily inoculated another person with HIV-infected substances is guilty of an act of wilful HIV transmission.
Is complicit in the act of wilful transmission of HIV, any PLWHA or not, any doctor, traditional therapist, pharmacist and any person practising a medical or paramedical profession, any medical student, student or employee in pharmacy, herbalist, bandager, surgical instrument dealer, who has indicated, promoted, granted or provided the means to commit the offence referred to in the previous paragraph.
Perpetrators and accomplices of acts of wilful HIV transmission shall be punished by imprisonment for a term of five to twenty years and a fine of one to five million ouguiyas.
Any person who knows that he or she is infected with HIV/AIDS and knowingly has unprotected sex with his or her spouse who is not informed of his or her HIV status, even if the spouse is HIV-positive, shall be punished by criminal imprisonment for a period of ten to twenty years and a fine of two to five million ouguiyas. In this case, the initiation of the public action is subject to the filing of a complaint by one of the spouses.
Anyone who knowingly administers HIV-infected blood to a person shall be punished with life imprisonment.
If the act was committed through negligence, recklessness, clumsiness, or failure to comply with the regulations, the offender shall be punished by one to five years’ imprisonment and a fine of one to five million ouguiyas.
Article 24: Any person who, knowing that he or she is infected with the AIDS virus and who, using coercive or unexpected violence, engages in unprotected sexual relations of any kind with his or her spouse, shall be punished by criminal imprisonment for a period of ten to twenty years and a fine of three to ten million ouguiyas.
If the act was committed under threat by one or more persons, by an ascendant of the victim or by a person who has authority over the victim, the penalty shall be life imprisonment.
When the deliberate transmission of HIV/AIDS is the result of crimes under articles 307, 308 and 309 of the Criminal Code, the perpetrator shall be punished by ten to twenty years’ imprisonment and a fine of two to five million ouguiyas.
Article 25. Any person who exposes or causes to be exposed, neglected or neglected in a solitary place, a child or an disabled person ill with HIV/AIDS, shall be sentenced to imprisonment for one to three years and a fine of one hundred to two hundred thousand ouguiyas or one of these two penalties.
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