Congo (Brazzaville - Republic of)

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Congo (Brazzaville) Republic of
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
1
Number of people convicted: 
1
Applicable law: 

A draft HIV-specific law, adopted by parliament in December 2010, has both protective and punitive provisions. 

At the time of the first prosecution in February 2011 (see below) it was not yet enacted. 

Full text is not available but the provision on 'criminal HIV transmission' was informed by a workshop convened by civil society in 2009 in accordance with UNAIDS’ recommendations.

The CNLS website notes:

Regarding the law itself "no person shall be prosecuted or tried under this Act or any other law for the transmission of HIV, or HIV exposure or transmission when said exposure arises following cases: the HIV transmission from mother to unborn child of it during birth or during lactation, a PLHIV who did not know his HIV-positive status at the time of commission of the act.

At the time of writing (April 2012) it is unclear whether this law has been enacted.

Key Cases: 

In February 2011, the Criminal Chamber of the Court of Appeal of Pointe-Noire 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 caused a great deal of controversy because the judge used his discretion to try Congo's first ever criminal HIV transmission case by utliting the law on poisoning. 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 not enacted at the time, lists the circumstances in which criminal law cannot be applied to HIV transmission, with criminal liability limited to “intentional and deliberate” HIV transmission.

Details of the case are few, but it is claimed 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 wife's infection. Adding to the doubt that the husband was the source of his wife's infection is the fact that he had been on treatment 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.

Further information can be found on Criminal HIV Transmission.

Other laws and policies with an impact on responses to HIV

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

According to our research, there are no legal or other regulations limiting the entry of people with HIV/AIDS.

Travellers are required to carry evidence of a yellow fever vaccination.

The U.S. Department of State is unaware of any HIV/AIDS entry restrictions for visitors to or foreign residents of the Republic of the Congo.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Different for heterosexuals and homosexuals

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

Protective laws and policies for people living with HIV: 

No