South Africa

Last updated on: 17 September 2014

Criminalisation of HIV transmission/exposure

South Africa
Whether Specific law enacted: 
No
Number of people prosecuted: 
1
Number of people convicted: 
1
Applicable law: 

There is no specific law on HIV transmission.

However, there is a criminal law for sentencing of sexual offenders: Sexual Offences Amendment Act, 2007.

Key wording in the law: 

Services for victims relating to Post Exposure Prophylaxis and compulsory HIV testing of alleged sex offenders
28. (1) If a victim has been exposed to the risk of being infected with HIV as the result of a sexual offence having been committed against him or her, he or she may—
(a) subject to subsection

(2)(i) receive PEP for HIV infection, at a public health establishment designated from time to time by the cabinet member responsible for health by notice in the Gazette for that purpose under section 29, at State expense and in accordance with the State's prevailing treatment norms and protocols;  (………..
(b) subject to section 30, apply to a magistrate for an order that the alleged offender be tested for HIV, at State expense.

Part 2: Application for compulsory HIV testing of alleged sex offender by victim
Application by victim or interested person for HIV testing of alleged sex offender
30. (I) (a) Within 90 days after the alleged commission of a sexual offence any victim or any interested person on behalf of a victim, may apply to a magistrate, in the prescribed form, for an order that—
(i) the alleged offender be tested for HIV and that the results thereof be disclosed to the victim or interested person, as the case may be, and to the alleged offender; or

Use of results of HIV tests
34. The results of an HIV test, performed in terms of an order contemplated in sections 31(3) and 32(3), may only be used in the following circumstances:
(a) to inform a victim or an interested person whether or not the alleged offender in the case in question is infected with HIV with the view to
(i) reducing secondary trauma and empowering the victim to make informed medical, lifestyle and other personal decisions; or
(ii) using the test results as evidence in any ensuing civil proceedings as a result of the sexual offence in question; or
(b) to enable an investigating officer to gather information with the view to using it as evidence in criminal proceedings.

Key Cases: 

14 Aug 2013. First-ever successful prosecution for ‘HIV exposure’ upheld as attempted murder by Pretoria High Court.

Pretoria – An HIV-positive Aids counsellor who was convicted of attempted murder for having unprotected sex with his unsuspecting girlfriend has lost his appeal in the High Court in Pretoria. Judge Tati Makgoka and Acting Judge William Baloyi dismissed the appeal of Lovers Phiri, 35, against his conviction on a charge of attempted murder and the six-year jail sentence imposed on him by a Piet Retief magistrate. Source: http://www.hivjustice.net/storify/south-africa-first-ever-successful-prosecution-for-hiv-exposure-upheld-as-attempted-murder-by-pretoria-high-court/#sthash.zr41PGhc.dpuf

Discussion: 

From the information received from the AIDS Legal Network, it appears that exposing another person to or infecting another person, per se, is not a crime.  However, there is a provision where sexual offenders can be compulsorily tested for HIV; where HIV is transmitted in the course of a sexual offence this can be used in sentencing proceedings.

From the information received, it appears that there are a lot of human rights and women’s organisations that have advocated, ensuring that criminalisation of HIV transmission does not become part of the legal frame work.

As part of the legislative reform processes pertaining to sexual offences legislation (1999 – 2007), the South African Law Reform Commission and one of the draft bills, included a clause criminalising ‘wilful HIV transmission’. However, due to advocacy efforts and active engagement and participation by various stakeholders in the legislative reform processes, this clause was subsequently removed from the draft legislation.

In order to provide specific guidance to Members of Parliament, Ministers, Ministries of Health/HIV 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: 

AIDS Legal Network, ALN, Dr. Kehler, www.aln.org.za

AIDS Law Project, ALP

AIDS Legal Network, ALN
Treatment Action Campaign, TAC
There are a number of human rights and women’s rights organisations advocating to ensure that trends towards criminalisation of HIV transmission does not become part of the legislative framework
 

Further reading: 

Avert Country Page for South Africa
Criminalisation blog for South Africa
Several newspapers discussed the risks of criminalising 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: 

There are no specific entry or residence regulations for people living with HIV and AIDS.

There are no specific entry regulations for people living with HIV and AIDS. There are no specific residence regulations.

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

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No Law

Age of consent: Equal for heterosexuals and homosexuals

Female to Female Relationships: Legal

Marriage and Substitutes for Marriage: Recognized on national level

Is it possible to change one's gender on official docuements?: Yes

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

Laws relating to injecting drug use: 

Yes

Protective laws and policies for people living with HIV: 

Yes