Zimbabwe was the first African country to enact an HIV-specific criminal law, including it in the Sexual Offences Act of 2001. The law, which was supported by women’s rights groups who sought to address violence against women, made a criminal of anyone diagnosed HIV-positive who “intentionally does anything or permits the doing of anything” which (s)he “knows … will infect another person with HIV”.
The sexual offences law was amended in 2006 through the enactment of the Zimbabwe Criminal Law (Codification and Reform) Act, 2004. The new Act includes two HIV-specific provisions. The first is section 79, erroneously titled “Deliberate transmission of HIV”. Despite its title, section 79 does not require HIV transmission or for an accused to have an intention to transmit HIV: only that they undertake an act that includes “a real risk or possibility” of transmitting HIV. Further, section 79 can be applied to anyone who knows they have HIV or who realises “there is a real risk or possibility” they might have HIV. The broad terms of the law means it is applicable in a wide range of circumstances including when HIV is not diagnosed, and HIV transmission is not intended or deliberate. In fact, the section does not require HIV transmission. The law does provide for a defence if the HIV-negative partner knew the accused had HIV, and consented to the act while appreciating the nature of HIV and the possibility of transmission.
The second HIV-specific section is section 80 which provides for increased penalties if a person convicted of a sexual offence is found to be HIV-positive, whether or not the accused knew they had HIV at the time of the offence.
In January 2021 the Ministry of Justice, Legal and Parliamentary Affairs increased the fines issued for certain criminal offences. The maximum fine available was doubled from 800,000 to 1.6 million Zimbabwean Dollars. It was reported that those found guilty of “deliberate transmission of HIV” are liable for the highest level of fines.
In July 2019, Zimbabwe’s government moved to repeal section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act through the newly gazetted Marriages Bill. The move followed public statements by the Justice, Legal and Parliamentary Affairs Minister that global thinking suggested such laws stigmatised people living with HIV and AIDS. The second reading of the Bill in February 2020 attracted support from female parliamentarians. In June 2020 it was reported that the Bill had passed its third reading in the House of Assembly and would move to the Senate. In April 2021 the Bill was under consideration in the Senate after being stalled for nearly a year due to reservations by traditional leaders (unrelated to HIV provisions). In November 2021 it was reported that the Bill was finalised and was before the President for assent.
Despite the ongoing effort to repeal this law, prosecutions under section 79 continue with the most recent reported in December 2021.
It is understood that there were many attempts at prosecution before the first successful prosecution in 2008. The case involved a 26-year-old woman who pled guilty to not disclosing her HIV-positive status before having condomless sex with a male partner. She received a five-year suspended sentence, primarily because her partner did not test HIV-positive. The partner actually tried to get the charges withdrawn and attempted to undermine the case by not attending court.
As of April 2021, there had been at least 18 HIV criminalisation cases, giving Zimbabwe the highest known rate of HIV prosecutions in Sub-Saharan Africa. Over time, it had become apparent that Zimbabwe’s HIV-specific criminal laws do not protect women. Numerous cases have involved alleged sexual transmission of HIV, with many of the accused being women (e.g. 2010, 2012, 2018), including in cases where it is likely the woman was infected by her accuser spouse (although she was diagnosed first) and where men have made allegations as revenge for complaints about domestic violence. In another case, a man was fined US$9 for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV
In October 2020, a young HIV-positive woman was charged with ‘deliberate transmission’ after allegedly breastfeeding her friend’s baby to stop it crying. There is no evidence to date to suggest that HIV was transmitted. The outcome of this case is not yet known.
In April 2021 a woman was released on bail after being accused by her lover of deliberately infecting him with HIV. It is said that the two had sex with protection on several occasions and neither knew their HIV status. At a later point they went for a test and the woman tested positive while the man tested negative. There is no evidence to suggest that HIV had been transmitted and it was also revealed that the man had wilfully removed a condom his lover put on during sex on the day he alleges to have been infected. Nevertheless, the woman was charged with deliberate transmission of HIV and trial is set for May 2021.
There have been a number of cases of accused – usually men – who have been acquitted or have had their sentences greatly reduced by a higher court. For example, the 2019 appeal of a man who succeeded in having his 10 year sentence for ‘deliberate infection’ reduced to 2 years following his conviction for having condomless sex although HIV was not transmitted. The man was taking treatment, although it is unclear whether transmission risk was considered.
Criminal Law (Codification and Reform) Act
REVIEW OF THIS LAW IS PENDING AS THE GOVERNMENT DEBATES THE NEW MARRIAGES BILL
Division D: Transmitting HIV deliberately or in the course of committing sexual crimes
79 Deliberate transmission of HIV
(1) Any person who
(a) knowing that he or she is infected with HIV; or
(b) realising that there is a real risk or possibility that he or she is infected with HIV;
intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.
(2) It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned—
(a) knew that the accused was infected with HIV; and
(b) consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.
80 Sentence for certain crimes where accused is infected with HIV
(1) Where a person is convicted of—
(a) rape; or
(b) aggravated indecent assault; or
(c) sexual intercourse or performing an indecent act with a young person, involving any penetration of any part of his or her or another person’s body that incurs a risk of transmission of HIV;
and it is proved that, at the time of the commission of the crime, the convicted person was infected with HIV, whether or not he or she was aware of his or her infection, he or she shall be sentenced to imprisonment for a period of not less than ten years.
(2) For the purposes of this section—
(a) the presence in a person’s body of HIV antibodies or antigens, detected through an appropriate test, shall be prima facie proof that the person concerned is infected with HIV;
(b) if it is proved that a person was infected with HIV within thirty days after committing a crime referred to in those sections, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when he or she committed the crime.
Identifies and examines legal and human rights issues affecting in particular people living with HIV, people with tuberculosis (TB) and those at higher risk of HIV exposure, such as key and affected populations – women, young people,
gay men and other men who have sex with men, sex workers, prisoners, persons with disabilities and people who inject drugs. The LEA makes recommendations to respond to these issues.
The two questions which are sought to be answered relate to the constitutional validity of section 79 of the Criminal Code. These heads of argnment will be confined therefore to whether the provision is too wide, arbitrary and therefore violative of the protection of the law guarantees. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.
In this June 2016 ruling, the Court unanimously finds against the two applicants and re-states that the only defence to prosecution is disclosure of known or potential HIV infection (which, it says, trumps any right to privacy) and suggests people with HIV can be discriminated against by the law if the reason is to protect public health.
The article finds that, if applied by lawyers, prosecutors and courts, the Expert consensus statement on the science of HIV in the context of criminal law may alleviate some unjust prosecutions and convictions in guiding courts to assess evidence on HIV transmission, to draw appropriate inferences on mental elements of the offence, to recognise defences on the basis of transmission risk-reducing conduct, and to more appropriately inform the courts’ assessment of the harm of HIV infection in sentencing. The implications of the science reflected in the Expert Consensus Statement may also weigh in favour of a finding by the courts that the offence is unconstitutional if a new constitutional case is made against the offence.