In 2007, Sierra Leone enacted the Prevention and Control of HIV and AIDS Act 2007 based on the highly problematic AWARE-HIV/AIDS Model Law (also known as the N’Djamena Model Law), which was intended to protect persons with HIV from discrimination, but includes legislation making it a crime to “intentionally” transmit or expose another person to HIV. This law is poorly worded, overly broad and vague.
Sierra Leone’s HIV-specific criminal law (section 21) required all people who knew they had HIV to disclose their HIV status before sexual contact or sharing of needles, and to take all reasonable measures and precautions to prevent HIV transmission. It was an offence to ‘knowingly’ or ‘recklessly’ place another person at risk of HIV unless that person voluntarily accepted that risk. Conviction carried a penalty of a fine of up to five million Leones and/or imprisonment of up to seven years.
Sierra Leone’s HIV-specific law was particularly problematic as it explicitly criminalised HIV-positive pregnant women who ‘knowingly or recklessly’ placed a foetus at risk of HIV transmission. The treatment of mother-to-child transmission under the Prevention and Control of HIV and AIDS Act 2007 generated an outcry, including recognition of its potential negative impact on women’s willingness to come forward for HIV services.
In 2011, the National HIV and AIDS Commission Act, 2011 amended the 2007 Act. The current Act retains an HIV-specific criminal offence stating (at section 370), a person who wilfully transmits HIV is liable to a fine of up to twenty million Leones and/or imprisonment for up to five years. However, the law includes a defence if:
- the act posed “no significant risk”, which should include instances where an accused is on effective treatment
- the accused was unaware of their HIV-positive status, or unaware of how HIV is transmitted
- the accused “practiced safe sex”, including using condoms
- the accused’s partner or other person was aware of the accused’s HIV status
- the accused did not disclose their HIV-positive status “because of a well-founded fear of serious harm by the other person”.
In addition, section 37(2)(g) specifically precluded criminal liability for mother-to-child transmission. A woman cannot be prosecuted in circumstances where “the transmission of HIV or the exposure to the risk of HIV infection” relates to the “possibility of transmission of HIV from woman to her child before or during the birth of the child or through breast feeding of a child.”
There have been no reported HIV criminalisation cases in Sierra Leone to date.
National HIV and AIDS Commission Act, 2011
PART VIII -TRANSMISSION OF HIV
37. (1) A person who wilfully transmits HIV to another person commits an offence and is liable on conviction to a fine not less than twenty million Leones or to a term of imprisonment not less than five years or to both the fine and imprisonment.
(2) No person commits an offence under subsection (1) where the transmission of HIV or exposure to the risk of HIV infection arises out of or relates to-
(a) an act that poses no significant risk of HIV;
(b) a person living with HIV who is unaware of his HIV infection at the time of the offence;
(c) a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence;
(d) a person living with HIV who practiced safe sex including the use of condoms;
(e) a person living with HIV who disclosed his HIV positive status to the sexual partner or other person before any act posing a significant risk of transmission;
(I) a situation in which the sexual partner or other person is in some other way aware of the person’s HIV-positive status;
(g) a person living with HIV who did not disclose his HIV status because of a well-founded fear of serious harm by the other person or the possibility of transmission of HIV from a woman to her child before or during the birth of the child or through breast feeding of a child.
(3) A healthcare provider providing treatment, care or counseling service to a person with HIV may notify a sexual partner of the person living with HIV where he is requested by the person living with HIV to do so.
(4) A request under subsection (3) shall be in the prescribed form.
(5) On receipt of a request made under subsection (3), the healthcare provider shall, whenever possible, comply with the request.
(6) A healthcare provider who informs a sexual partner as provided in subsection (5) shall not by reason only of that action be in breach of this Act.
Prevention and Control of HIV and AIDS Act 2007
SUPERCEDED by the National HIV and AIDS Commission Act, 2011.
PART V–TRANSMISSION OF HIV
(1) A person who is and who is aware of being infected with HIV or is carrying and is aware of carrying the virus shall–
(a) take all reasonable measures and precautions to prevent the transmission of HIV to others and in the case of a pregnant woman, the foetus; and
(b) inform, in advance, any sexual contact or person with whom needles are shared, of that fact.
(2) Any person who is and is aware of being infected with HIV or is carrying and is aware of carrying HIV antibodies shall not knowingly or recklessly place another person, and in the case of a pregnant women, the foetus, at risk of becoming infected with HIV, unless that other person knew that fact and voluntarily accepted the risk of being infected with HIV.
(3) Any person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine not exceeding five million leones or to a term of imprisonment not exceeding seven years or to both the fine and imprisonment.
(4) A person referred to in subsection (1) or (2) may request any medical practitioner or any other person approved by the Minister under section 13, to inform and counsel a sexual partner of the HIV status of the person.
(5) A request under subsection (4) shall be in the prescribed form.
(6) On receipt of a request made under subsection (4), the medical practitioner or approved person shall, whenever possible, comply with the request in person.
(7) A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after reasonable opportunity to do so– (a) complied with subsection (1) or (2); or (b) made a request under subsection (4), may inform any sexual partner of that person, of the HIV status of that person.
(8) Any medical practitioner or approved person who informs a sexual partner as provided in subsection (6) or (7) shall not, by reason only of that action, be in breach of this Act.
This report highlights the results of the legal environment assessment, through the review of the practices and legal and policy environment in Sierra Leone in the context of HIV and AIDS, and makes recommendations for creating and strengthening an enabling environment that protects rights and promotes an effective national response to HIV and AIDS.