Wilful spread of HIV on rise

Wilful spread of HIV/AIDS on rise? by Phyllis Kachere
Wilful spread of HIV/AIDS on rise
http://www.sundaymail.co.zw/inside.aspx?sectid=4912&cat=17 
Defined in Zimbabwean law as the failure to disclose one’s status or to take precautions for preventing the transmission of HIV/AIDS, criminalisation of wilful or deliberate transmission has become controversial in a country that has recorded a decline in HIV/AIDS prevalence but a rise in wilful spreading of the disease. The enforcement of the law’s prescription for the arrest of a spouse of partner accused of infecting the other with HIV/AIDS has raised cultural concerns.

Section 79 of the Criminal Law (Codification and Reform) Act Chapter 9:23 (the Code) reads:

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/AIDS; 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 20 years.

Several cases have been brought before the courts where individuals claim to have been deliberately infected with HIV by their partners with several more accusations being pointed to HIV-positive older men accused of having sex or marrying younger girls without declaring their status. The stories told always climax with the younger women eventually realising they had been infected by their older partners. Dr Paul Chimedza once cited the case of his 55-year-old HIV-positive male patient who married and had unprotected sex with an 18-year-old, presumably HIV- negative woman. 
 
HIV and AIDS activists have been quick to condemn the criminalisation of the transmission of HIV with strong arguments that people living with HIV/AIDS do not intentionally conduct risky sexual behaviour in order to spread the virus. Prominent lawyer, Mr Pisirayi Kwenda of Kwenda and Partners, said ,while it was difficult to determine the number of people who had deliberately infected others because no such studies had been conducted, it was largely recognised that most would not conduct risky sexual behaviour to deliberately transmit HIV. “Generally, people living with HIV/AIDS do not go out of their way to infect others. Because they have gone through intensive counselling where they receive information on the dangers of reinfection, I am persuaded to think they would not. If there are those that seek to wilfully transmit HIV, I think they are a minute number,” said Mr Kwenda.
A UNAIDS report titled “Criminal Law, Public Health and HIV Transmission” also discourages using criminal law to deal with HIV transmission. “Criminalising HIV transmission may create a false sense of security among people who are not infected. HIV transmission frequently occurs when people do not know they are infected, so a criminal prohibition would largely be irrelevant,” says the UNAIDS report.
Physician and occupational health specialist, Dr Cleopas Sibanda, who has published a book entitled “The Management of HIV/AIDS in the Workplace Made Easy”, firmly believes in the existence of wilful transmission of HIV and strongly believes the law should be used to protect the public. He cited cases where some of his older male patients known to be receiving antiretroviral therapy have gone on to marry younger women without declaring their HIV status to the spouses. “Our disadvantage in this case as doctors is that we cannot disclose the status of anybody to anyone without their consent, and also that we cannot volunteer privileged, private, and confidential medical information to anyone unless it is in a court of law or some such legalistic setting.
“So we just look and get heartbroken as HIV-positive people get married or have children! It is a sort of thankless job that we do and it exposes us to the risk of ‘burnout’ as the disease cycle repeats itself again and again right in our eyes, day in and day out, and year after year,” said Dr Sibanda. While he advocated tougher laws against wilful transmission, he said governments should take into cognisance the very important provisions of the Universal Declaration of Human Rights and the provisions of the Patients Charter and must be wary of enacting barbaric laws which may violata those provisions. “It’s a real Catch-22 situation.”
In 2004 Mutare was gripped by the accusations levelled against a prominent disc jockey, 30-year-old Kaiboni Mlambo who was accused of having sex on several occasions and deliberately infecting a 15-year-old girl with HIV/AIDS. He denied the charges, claiming he was unaware of his HIV/AIDS status at the time; but in evidence against him a physician testified that he had been told of his status in 1999 after he took an HIV/AIDS test.
While the law, however, provides certain defences in Section 79(2) of the Code as follows:

1. 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/AIDS
        and the possibility of becoming infected with it.

The code also criminalises marital rape in Section 68 by explicitly stating: That it shall not be a defence to a charge of rape that the accused person and the complainant were husband and wife at the time of the commission of the offence.
However, all prosecutions for marital rape require the authority of the Attorney-General and no case of marital rape has been prosecuted in Zimbabwe since 2001 when the law came into effect.
In a previous interview, Professor Norman Nyazema encouraged the public to engage in behavioural change as the only viable means to protect one from HIV/AIDS infection. “Having sexual intercourse is a conscious decision made by an individual and it is incumbent upon that individual to ensure they are having safe sex. The onus rests with the individual to protect themselves,” said Prof Nyazema.

National co-ordinator of the Women and Law Southern Africa, Ms Slyvia Chirawu, concurred with Prof Nyazema that individuals had to protect themselves from HIV/AIDS infection by insisting on condom use or demanding an HIV/AIDS test before they engage in unsafe sex.