Botswana

Last updated on: 15 September 2014

Criminalisation of HIV transmission/exposure

Botswana
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
2
Number of people convicted: 
1 acquittal, 1 pending
Applicable law: 

Public Health Act 2013

Penal Code (Amendment) Act 5 of 1998

Key wording in the law: 

Section 184. Spreading infection

Any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, is guilty of an offence.

Key Cases: 

 

In October 2013, a Zimbabwean woman was charged with ‘deliberate HIV transmission’ for breastfeeding her neighbour’s baby.

Botswana: Woman from Zimbabwe faces ‘deliberate HIV transmission’ charge for breastfeeding neighbour’s baby. A Zimbabwean woman who breastfed a neighbour’s baby without her consent faces a possible two-year sentence for deliberately infecting another person with HIV after she tested positive. 39-year-old Annie Mpariwa appeared in a Gaborone court on Wednesday and the case was deferred to October 24 to allow a second HIV test to be done on the toddler. The child’s initial results came out negative. Mpariwa was arrested last week on charges of common nuisance and should the child test positive, the charge will be raised to ‘deliberately infecting another person with HIV’. The mother of the 14-month old baby said seeing her child being breastfed by her neighbour was traumatising. She alleged that her neighbour snatched the child while she was playing outside and hid her in her room. After searching for the child for quite some time, she went and knocked on Mpariwa’s rented room and got no response. Upon peeping through the window, she saw her suckling the little girl. The incident comes in the wake of a newly enacted law on HIV/AIDS that calls for stiffer penalties on people who deliberately infect others with HIV. Source: http://www.hivjustice.net/storify/botswana-woman-from-zimbabwe-faces-deliberate-hiv-transmission-charge-for-breastfeeding-neighbours-baby/#sthash.IcovoS4Y.dpuf

 

Discussion: 

From the information gathered, it appears that no specific legislative provisions exist to criminalise the transmission of HIV. However under the Penal Code (Amendment) Act, a person who ‘unlawfully or negligently' does any act which has the likelihood of spreading any ‘disease dangerous to life' is guilty of an offence.

A man charged with an offence under the above act was acquitted earlier this year. Dismissing the charges against the defendant, the Chief Magistrate said that the state had failed to prove whether or not a condom was used even though it had been proven that there was unlawful sexual intercourse and that there was no consent from the complainant. (See Media Report)

The judgement suggests that had the prosecution proved that a condom had not been used, a conviction could have been obtained.

The Chief Magistrate also emphasised there is no specific law in Botswana which punishes the deliberate spread of HIV/AIDS that Section 184, under which the defendant was charged is expressed in vague term, covering ‘any other dangerous disease to life'.

It appears that plans from 2000 suggesting the introduction of legislation compelling HIV- positive people to disclose their status to their sexual were never acted on. (See Media reports)

Under the Penal Code, punishments for Rape and Defilement of persons under 16 years of a defendant who is found to be HIV- positive are aggravated whether or not the defendant was aware of their HIV-positive status. (See below)

Section 142. Punishment for rape

(1) Any person who is charged with the offence of rape shall (....)
(ii) subject to subsections 2 and 4, upon conviction be sentenced to a minimum term of 10 years' imprisonment or to a maximum term of life imprisonment.
(2) Where an act of rape is attended by violence resulting in injury to the victim, the person convicted of the act of rape shall be sentenced to a minimum term of 15 years' imprisonment or to a maximum term of life imprisonment with or without corporal punishment.
(3) Any person convicted of the offence of rape shall be required to undergo a HIV test before he is sentenced by the court.
(4) Any person who is convicted under subsection 1 or subsection 2 and whose test for the HIV under subsection 3 is positive shall be sentenced
(a) to a minimum term of 15 years' imprisonment or to a maximum term of life imprisonment with corporal punishment, where it is proved that such person was unaware of being HIV positive; or
(b) to a minimum term of 20 years imprisonment or to a maximum term of life imprisonment with corporal punishment, where it is proved that on a balance of probabilities such person was aware of being HIV positive.

Section 147. Defilement of person under 16 years

(1) Any person who unlawfully and carnally knows any person under the age of 16 years is guilty of an offence and on conviction shall be sentenced to a minimum term of 10 years, imprisonment or to a maximum term of life imprisonment.
(2) Any person convicted under subsection 1 shall be required to undergo a HIV test before he is sentenced by the court.
(3) Any person who is convicted under subsection 1 and whose test for the HIV under subsection (2) is positive shall on conviction be sentenced to a
(a) minimum term of 15 years' imprisonment and a maximum term of life imprisonment with or without corporal punishment, where it is proved that such person was unaware of being HIV positive; or
(b) minimum term of 20 years' imprisonment and a maximum term of life imprisonment with or without corporal punishment, where it is proved that on a balance of probabilities such person was aware of being HIV positive.

Further discussion:

As a member of the SADC region, it remains to be seen what impact the SADC ‘Model Law' will have on the current legislative provisions. To provide specific guidance to Members of Parliament, Ministers, of SADC countries on the complex process of HIV legisla­tion, the SADC Parliamentary Forum, a consultative and advisory intergovernmental organization of national Parliaments in SADC countries, with the technical assistance of the AIDS and Human Rights Research Unit and the involvement of vari­ous stakeholders and regional civil society groups, has developed a model law on HIV to serve that purpose. The Model Law integrates the protection of human rights as a key element of an effective response to HIV. The Model Law has no provisions allowing criminalisation.

Survey respondents/Organisations working on HIV and the Law: 
Further reading: 

Media document, about HIV in the media in Botswana (see below)

Background information about Botswana on Avert website.
http://www.avert.org/aidsbotswana.htm

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are no specific regulations regarding the entry of people with HIV/AIDS into Botswana. An HIV test is not required in order to enter the country. As far as the Embassy is informed, only students beginning their studies at the University are tested.
For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Not Legal

Punishments for male to male relationships: Imprisonment of 10 years or more

Female to Female Relationships: NotLegal

Marriage and Substitutes for Marriage: No law

For updated information, please go to: http://ilga.org

Protective laws and policies for people living with HIV: 

Yes