Ted Leggett
After years of withdrawing from the sex lives of South Africans, the government is considering poking its nose into the bedroom again. The Law Commission is presently circulating a discussion paper on the “need for a statutory offence aimed at harmful HIV-related behaviour”, or rather, the need for criminalising the spread of the virus that causes Aids.
The commission concedes from the outset that criminal law is not the best tool to use in combating the proliferation of the disease. But numerous urban legends and a few prominent cases have created the public perception that some infected people are set on taking a few more citizens with them.
Images of crazed sociopaths stabbing unsuspecting grannies with syringes of infected blood fill the popular imagination. To this are added more serious studies of infected township youngsters saying they don’t want to die alone, and the frightening rural maxim that having sex with a virgin (for that read child) will cure the disease.
Although these cases could be prosecuted under existing common law (attempted murder – there is a case pending) or present statutes (sex with a minor and rape are well- established crimes), problems with proving causation and intent might be smoothed over with a little statutory assistance.
But is this a good idea? From the outset, it should be made clear that very few people will ever be charged under an anti-Aids statute. The prosecutorial authority has far too many straightforward murders to worry about to be taking on this more arcane caseload. At most, we would be looking at one or two prominent test cases meant to act as a general deterrent.
So the most important effects of such a statute would not be in the numbers of actual murderers removed from the streets, but in the more subtle general impact such a statute would have. On the one hand, the statute might deter those thinking of passing on the virus. On the other, criminalising the spread of HIV would add to the hysteria around the disease.
Remember, this is the country where Gugu Dlamini was beaten to death by her neighbours after coming out as an infected person on National Aids Awareness Day. A law making the spread of Aids a crime would no doubt become the favoured legislation of kangaroo courts.
Issues that would supposedly be clarified, such as intent, would continue to be problematic. If you make intentional transmission illegal, you create an incentive for some people (like sex workers) to remain ignorant of their HIV status. If you broaden the intent requirement to recklessness, you risk making all unprotected sex into legitimate grounds for jail.
The chances of a sexually active woman having HIV in KwaZulu-Natal are close to one in three, according to statistics. Can any sexually active person in Durban be counted as wholly innocent under these conditions?
Since testing remains confidential, it will be necessary to impute intent from circumstances. Does being a promiscuous homosexual male who eschews condoms provide a basis for inferring intentional transmission? How about having an adulterous unprotected liaison or three with a prostitute?
If the statute is intended to deter harmful behaviour, it had better be aimed at behaviour that it has some small chance of affecting.
And why single out HIV? Does not the same logic apply to any communicable disease?
Clearly, we are entering into hazardous territory. We must resist the tendency to think that all our answers lie in applying an everstronger hand.
Ted Leggett is a researcher in the Centre for Social and Development Studies at the University of Natal