Congo

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African HIV criminalisation achievements and challenges highlighted at ICASA 2013

11 Dec 2013
The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade. Although North America is … More

Congo: First ever criminal prosecution nets 15 years for husband under poisoning law

11 Mar 2011
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 … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted Yes

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: No

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 1

Convictions

Number of convictions 1

Laws

Applicable laws

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.

Cases

Overview

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.

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017