Overview
Enugu state has an HIV-specific criminal provision in its HIV/AIDS Anti-discrimination Protection law, introduced before Nigeria’s national law. Enugu’s law makes it an offence for a person who knows they have HIV to wilfully and intentionally put another person at risk of, expose a person to, or transmit, HIV. The law includes a long list of acts considered capable of transmitting HIV including “intentional unprotected sex”, assault and battery. It is not known whether having a low or undetectable viral load would constitute ‘protected sex’ despite the risk of transmission being negligible to none. Coercing a person to have sexual intercourse or engaging in sexual intercourse where they are exposed to risk of HIV transmission carries a penalty of N200,000. The law does not apply if a condom has broken (only) in instances where the sexual partner knew of the accused’s HIV-positive status and consented to sex. People living with HIV are permitted to have sex and/or marry on the condition that they disclose their HIV status to a prospective partner and the person consents.
Laws
Enugu State Law No 2- HIV/AIDS Anti-discrimination and Protection Law 2005
Part IV: Criminal and Correctional Systems Legislation
12 (1) It shall be considered a criminal offence for someone with established knowledge of his/her positive status to wilfully and intentionally expose someone else or transmit the virus to another person, or engage in such behaviour or practices that are considered to put others at risk of HIV infection
(2) Notwithstanding existing criminal, public and mental health laws, one shall be guilty of engaging in risky behaviour capable of wilfully and intentionally transmitting HIV if he/she engages in intentional unprotected sex, attempts murder, assault, battery, unlawfully causing bodily harm, engaging in dangerous acts, use of noxious things and other such acts considered to constitute public nuisance
(3) Notwithstanding criminal laws existing on sexual offences, anyone who coerces or engages in sexual intercourse with another person without the consent of the latter, or if such consent is obtained under force threat, fear, impersonation or offer of inducements whereby the victim is exposed to risk of transmission of HIV the perpetrator of the act shall be liable to compensate the victim to the tone of =N=200,000 if prove of infection is provided.
(4) Where a HIV positive person is taken a preventative measure and such measure fails such as the case of a broken condom, resulting in the infection of his/her sexual partner, the former shall not be guilty of wilful transmission if he/she obtained consent of the latter to having sex, and the latter was informed of the positive status of the former.
(5) HIV -positive individuals shall not be prohibited from having sex or marrying anyone of their choice, provided the latter’s consent is obtained by his/her partner either voluntarily or on demand of his/her HIV positive status, the protection of the formers right to privacy notwithstanding
(6) Where an HIV – positive person is taken a preventive measure and such measure fails such as the case of a broken condom, resulting in the infection of his/her sexual partner, the former shall not be guilty of wilful transmission if he/she obtained consent of the latter to having sex, and the latter was informed of the positive status of the former.
(7) Anyone charged with the above offences on transmission and exposure of HIV infection shall have the right to put up defence. Consent shall not be considered a defence for willful or intentional transmission or exposure to HIV infection if such consent was not “informed” by the disclosure of the status of the HIV positive individual to the consenting party.
Further resources
HIV criminalisation scan conducted by the Network of People Living with HIV and AIDS in Nigeria (NEPWHAN) for GNP+
Acknowledgements
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.