CLAIM: Deliberate Transmission of HIV Under Section 79 of the Criminal Law (Codification and Reform) Act, any person who knowingly infects another person with HIV, whether through sexual intercourse or any other means, can be charged with a criminal offense.
SOURCE: Social media account on X
VERDICT: False
A post which garnered over 114,000 likes and 45 reposts claimed that, ‘Deliberate Transmission of HIV Under Section 79 of the Criminal Law (Codification and Reform) Act, any person who knowingly infects another person with HIV, whether through sexual intercourse or any other means, can be charged with a criminal offense’.
The account has over 63,000 followers. The post was part of a series over someone’s HIV status.
Prior to 2022, in terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23] section 79, deliberate transmission of HIV was an offence. The Act stated that,
“(1) any person who
(a) Knowing that he or she is infected with HIV; or
(b) realizing that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.”
Put in simple language, guilt was assumed if one transmitted HIV fully knowing they were infected or with awareness of a real risk and possibility of them being infected with HIV. Section 15 of the same law defined “real risk” as referring to awareness of the act leading to such infection in question or the component of recklessness leading to infection with HIV.
In 2019, Zimbabwe completed a legal environment assessment, which identified the criminalisation of HIV transmission as a barrier to health care and a driver of stigma and discrimination for people living with HIV and other key populations.
It was argued that criminalisation laws disproportionately affect women since most women are living with HIV and most of them are likely to know of their statuses before their male partners.
The constitutionality of this provision was also brought under scrutiny in the case of S v. Mpofu and Another. This matter determined the constitutionality of section 79 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23], particularly, whether it violated the applicants’ right to protection of the law and their right not to be discriminated against in terms of sections 18 and 23 of the former Constitution of Zimbabwe.
The first applicant, a 42-year-old man, had been charged with intentionally transmitting HIV/AIDS to his wife. He argued that the law he was charged under was overly broad, infringing upon his right to legal protection and discriminating against him based on his HIV status. He requested the referral of his case to the Constitutional Court.
The second applicant, a 34-year-old woman, was accused of transmitting HIV to her husband without disclosing her status. She was convicted, and her case was also referred to the Constitutional Court, raising similar arguments as the first applicant.
On 15 June 2016, the court unanimously held that the applicants had failed to prove that section 79 of the Code was unconstitutional:
‘The legislative objective is to halt or prevent the spread of HIV/AIDS. This objective is both important and laudable. It is sufficiently important to override the right of non-discrimination and the right to privacy. Because of the grave danger to life arising from HIV infection, the measure designed to meet the objective by prosecuting those who spread the disease deliberately or recklessly is rationally connected to, and calculated to achieve, the stated objective’.
Overview
Zimbabwe was the first African country to enact an HIV-specific criminal law, including it in the Sexual Offences Act 2001. However, more than two decades later, in 2022, Zimbabwe repealed its HIV-specific criminal law.
The 2001 law criminalised anyone diagnosed HIV-positive who “intentionally does anything or permits the doing of anything” which (s)he “knows (…) will infect another person with HIV”.
This law was amended in 2006 through the enactment of the Criminal Law (Codification and Reform) Act 2004. The new Act included two HIV-specific provisions. The first was section 79, titled ‘deliberate transmission of HIV’. Despite its title, section 79 did not require HIV transmission or for an accused to have an intention to transmit HIV: only that they undertook an act that included “a real risk or possibility” of transmitting HIV. Further, section 79 could be applied to anyone who knew they had HIV or who realised “there is a real risk or possibility” they might have HIV.
The broad terms of the law meant that it was applicable in a wide range of circumstances including when HIV was not diagnosed, when HIV transmission was not intended or deliberate, or where HIV was not even transmitted. The law did provide for a defence if the HIV-negative partner knew the accused had HIV, and consented to the act while appreciating the nature of HIV and the possibility of transmission.
Numerous cases of deliberate HIV infection have involved alleged sexual transmission of HIV, with many of the accused being women, including in cases where it is likely the woman was infected by her accuser spouse (although she was diagnosed first) and where men have made allegations as revenge for complaints about domestic violence.
In October 2020, a young HIV-positive woman was charged with ‘deliberate transmission’ after allegedly breastfeeding her friend’s baby to stop it crying. There was no evidence to suggest that HIV was transmitted.
In April 2021 a woman was released on bail after being accused by her lover of deliberately infecting him with HIV.
Repeal
Section 53 of the Marriages Act repeals Section 79 of the Criminal Code, effectively decriminalising the transmission of HIV. The signing of the law in 2022 meant that section 79 was repealed, making Zimbabwe only the second African country to fully repeal its HIV-specific criminal law after the DRC in 2018.
Present Day
A CLAUSE in the Criminal Laws Amendment (Protection of Children and Young Persons) Bill, gazetted in March 2024, listed HIV/AIDS as one of the sexually-transmitted infections (STIs), whose deliberate transmission to a partner is a criminal offence. Others include syphilis, gonorrhoea and herpes.
The Bill seeks to re-criminalise deliberate HIV/AIDS transmission despite the fact that the Marriages Act had decriminalised wilful HIV/AIDS transmission.
Committee approval
The Parliamentary and Legal Portfolio Committee issued a non adverse report in which it commended the recriminalisation of HIV infection.
However, the Herald newspaper reported that this clause will be repealed before the Bill is signed into law.
Justice, Legal and Parliamentary Affairs Minister, Ziyambi Ziyambi, has been reported saying prosecution under the Criminal Laws Amendment (Protection of Children and Young Persons) Bill should only apply when deliberate transmission of HIV/AIDS is done in aggravating circumstances such as rape and other sexual offences involving young persons.
Conclusion
The claim that ‘deliberate Transmission of HIV Under Section 79 of the Criminal Law (Codification and Reform) Act, any person who knowingly infects another person with HIV, whether through sexual intercourse or any other means, can be charged with a criminal offense’ has been rated as false. The Marriage Act of 2022 decriminalised this. However, there have been attempts to re-introduce this through the Criminal Laws Amendment (Protection of Children and Young Persons) Bill. Government is on record, though, saying this clause will be removed and HIV infection will only be criminalised when deliberate transmission is done in aggravating circumstances such as rape and other sexual offences involving young persons. It is, however, still an offence to intentionally infect any other person with syphilis, gonorrhea, herpes, and all other forms of sexually-transmitted diseases, excluding HIV.
