“HIV exposure” is the term commonly used to refer to the prosecuting of HIV exposure in the courts of law. HIV Scotland an advocacy organisation for people living with HIV and AIDS in the UK explains that Scotland is unique in that it is the only country in the UK where apart from the “…possibility of being charged for passing on HIV in those circumstances, it is possible to be prosecuted for putting another person at risk of HIV infection, even if they don’t become HIV positive.
(The term used for this in law is ‘reckless endangerment’ or ‘reckless exposure).” According to the UNAIDS in order to fast-track the HIV response and reach the goals of ending AIDS by 2020 and 2030 there has to be an emphasis on removing human rights barriers and legal obstacles. UNAIDS also reports that there are currently about 73 countries that have laws which “criminalise HIV non-disclosure, exposure, or transmission”, and “…39 countries have applied other criminal law provisions in similar cases.” Botswana is a nation with such laws; the Public Health Act 2013 “…criminalises wilfully exposing the public to any communicable disease” as stated in the Legal Environment Assessment (LEA) report 2017; the Act also makes “communicable diseases notifiable” including HIV.
The LEA report was a coordination of efforts led by the Ministry of Health and Wellness, the UN and the UNDP as supported by its’ Botswana National Steering Committee consisting of representatives from organisations including the Ministry of Health and Wellness, Attorney General’s Chambers, USAID, UNAIDS, PEPFAR, BONELA, BONEPWA, LEGABIBO, Ministry of Youth, Sports and Culture, Botswana Police Service, Botswana Prisons Service, and Ministry of Education. The report which also speaks to the human rights perspective acknowledges that the Public Health Act 2013 has “positive aspects” but also contains “broad criminal provisions” therefore recommending that the Act together with Section 184 of the Penal Code “…be reviewed and revised, to ensure that they are not inappropriately applied to HIV and TB and are in line with recommendations of the Global Commission on HIV and the Law, UNAIDS and other international and regional standards…
“Botswana should ensure that prosecution for HIV transmission is only available in very limited circumstances, when transmission is actual and intentional and prosecutions are pursued with a high level of evidence,” reads the LEA report. In his research paper submitted to the University of Pennsylvania (USA) in 2012, titled “The challenges of HIV/AIDS criminal legislation in Botswana” Zein Kebonang, a High Court Judge, at the time writing in his capacity as the Operations Director at the Botswana UPenn Partnership in Gaborone focused specifically on the Government of Botswana’s ‘attempts to halt the spread of HIV by amending in 1998 the country’s criminal code to provide for stiffer penalties for those charged and convicted of the offence of rape’.
Kebonang, who is currently embroiled in a corporate scandal similarly found that, “punitive sanctions can only be justified where it can be shown that a person acted intentionally to transmit the disease.” Kebonang further observed that punishing convicted persons for being HIV positive will only perpetuate HIV stigma and further marginalise people living with HIV and leading to the invasion of the right to privacy and, “…the unwarranted disclosure of confidential information” and also “vitiates” on the rights to voluntarily test for HIV.
Kebonang noted that in the year 2010 there were 862 rape cases reported, cases he considers as “insignificant” as they do not account to why a third of the population in Botswana is HIV positive. “One of the shortcomings with this law (Penal Code) is that it assumes that transmission only occurs through rape,” writes Kebonang.
On 6th September 2017 Judge Lot Moroka in his judgment for a rape case in Francistown found that the accused ‘person acted intentionally to transmit the disease’ in the State Vs. David Motlhokomedi Ntshwarisang sentence. The judge ruled that the accused was guilty of inflicting “double trauma” on the rape victim who was already suffering a violation of “bodily integrity” and from the “emotional and psychological anguish” of being raped. “The pain is even higher where the perpetrator is HIV positive as it exposes the victim to double trauma,” reads the judgment. The accused was a pastor at a church who raped his victim, “… under the guise of administering church based massage reserved only for pregnant women in his church,” it reads. Ntshwarisang was convicted of rape under Section 141 - Penal Code - of which Subsection 3 reads that, “any person convicted of the offence of Rape shall be required to undergo a Human Immunodeficiency Virus test before he or she is sentenced by the court.”
In this case, the court determined that the accused based on his medical records was aware that he was HIV positive prior to the rape and thus used Subsection 4 to sentence him, “…to a minimum of 20 years’ imprisonment or to a maximum term of life imprisonment with corporal punishment, where it is proved on a balance of probabilities, such person was aware of being Human Immunodeficiency Virus positive.” In his judgment Moroka sentenced the accused to the “…mandatory 20 years imprisonment.” Moroka reinforced what he considers to be the best interests of society; “It is in the interest of society that a deterrence sentence be passed with twin objectives of deterring similarly mined persons and in particular putting the accused out of circulation for a considerable period.” The alternative judgment, if it was proved that the accused had been unaware that he is HIV positive would be “a minimum of 15 years’ imprisonment or to a maximum term of life imprisonment with corporal punishment.”
Research studies show that although HIV is criminalised to varying degrees across the world; there are both pros and cons to criminalising it, and there is no evidence that new HIV infections will be curbed by this. The Oslo Declaration on HIV Criminalisation was adopted in Norway in 2012 and has since been endorsed by “…some 1650 civil society organisations, health and legal experts from around the world.” The declaration states that HIV is not spread by people who know their status, that HIV epidemics are driven by undiagnosed HIV infections. The declaration adds that the criminalising of HIV “…does more harm than good…” and that “neither the criminal justice system nor the media are currently well-equipped to deal with HIV-related criminal cases. Relevant authorities should ensure adequate HIV-related training for police, prosecutors, defence lawyers, judges, juries and media.”
Subsequently and during the 22nd International AIDS Conference 2018 in Amsterdam (Netherlands) another group of “leading” HIV scientists issued a joint statement “urging governments to pay close attention to the significant advances in HIV science to ensure that science informs the application of criminal law in cases related to HIV.” A local attorney, Victor Ramalepa of Ramalepa Attorneys says he supports Botswana’s Public Health Act, “Anybody who puts the public in any form of danger knowingly and deliberately must be prosecuted. I am not specific to HIV; I mean any other communicable disease. If you do not warn the other person, and you do not afford them the use of protection you must be prosecuted.”
Kennedy Mupeli, a representative of CEYOHO, also living with HIV shares his views. “It is negligent on your part to sleep with me without knowing my HIV status when we are in a consensual intimate sexual relationship. If I am accused of willfully exposing someone to HIV, the one who allegedly acquired HIV from me should be equally charged for willfully acquiring HIV. “If I get a sexually transmitted disease or STI from someone I should be held equally responsible for acquiring the STI. It is up to intimate sexual partners to protect themselves from HIV via condoms or PrEP.” Mupeli shares similar views with other human rights activists that in the absence of rape there is no need for a person to disclose their HIV status.
“We are not supposed to be pushed against the wall, with a criminal burden on our backs,” says Mupeli. His argument is that he cannot be disclosing his positive HIV status to all sexual partners. “We have to be careful because some people know they are HIV positive and are looking for a source to blame. “We don’t need that law it is not effective but draconian. Currently most people who are HIV positive are on treatment and cannot transmit HIV,” states Mupeli.