The Criminal Chamber of the Court of Appeal of Pointe-Noire in Congo (also known as the Republic of Congo, or Congo-Brazzaville – not to be confused with its larger neighbour, Democratic Republic of Congo) has sentenced an HIV-positive man to 15 years in prison after finding him criminally liable for his infecting his wife.
The sentence – which also included a payment of $100 million CFA francs (approximately US$210,000) – as well as the prosecution itself has caused a great deal of controversy since sentencing was handed down on February 24th.
First, the judge used his discretion to try Congo’s first ever criminal HIV transmission case by utliting the law on poisoning.
“The poisoning in our legislation is not limited. This is an administration or inoculation of substance in the body that cause damage or death,” Raymond Nzondo, lawyer for the victim told IPS.
This law was likely inherited from when Congo was part of France’s empire. However, French case law has now established that sexual fluids are not poisons, so the anti-poisoning law no longer applies.
Adding to controversy is the fact that an HIV-specific law, adopted by parliament in December 2010 but currently waiting to be enacted, now lists the circumstances in which criminal law cannot be applied to HIV transmission, with criminal liability limited to “intentional and deliberate” HIV transmission. The wording was changed following a workshop convened by civil society in 2009 in accordance with UNAIDS’ recommendations.
“This is illegal, this offense does not even exist in our legislation. I condemn this verdict,” Irenaeus Malonga, counsel for the accused, told IPS. He added that he had “already appealed to the Court of cassation [Congo’s court of appeal].”
Local organisations of people living with HIV / AIDS have also condemned the verdict. “We do not recognise this sentence as it is illegal. We will organise actions to ensure the man’s release,” warned Thierry Maba, HIV-positive, president of the Association of Young Positives Congo, a nongovernmental organisation (NGO) based in Brazzaville, the Congolese capital.
“The state was supposed to protect us, but now exposes us now by trial. And (with) 15 years imprisonment for a patient, he will die in prison,” says Simon, 35, an HIV-positive man from Pointe-Noire.
The IPS article includes scant details of the actual case, but it does quote the man’s lawyer claiming that both husband and wife had other sexual liaisions during their ten year marriage which certainly would create reasonable doubt that her husband was only the source of the woman’s infection.
“Who knows exactly who brought the disease home? Is something imagined. Before they married, both spouses had their life, the only screening test is not enough to convict someone,” railed Maba.
To Malonga, counsel for the condemned, the expert analysis can not say with certainty that contaminated the first spouse. “The doubt is there! The woman slept around, the man also has slept around, and they were married then,” he said.
Adding to the doubt that husband was the source of his wife’s infection is the fact that he had been on tretament since 2000 – this fact was used to prove that he knew his HIV-positive status, but there was no argument made by his defence about reduced infectiousness on treatment.
According Nzondo, counsel for the victim, her husband was under treatment since 2000, but had said nothing to his wife. He therefore did not use a condom during sex. The woman then began to develop the disease in 2005. “The man knew he was sick and was taking medication by hiding his wife. The fact was intentional and criminal,” said Nzondo.