Before we proceed with today’s topic, kindly note that all that I share does not constitute as legal advice. I’m not a lawyer or a legal expert. Everything is based on my own experience and research. For more information, I would strongly advise you to visit a lawyer, that can provide you with further information.
Today, I will be addressing a question relating to whether you can be criminally charged someone that has intentionally infected you with HIV.
I introduced this topic a few days ago on social media. It received mixed reactions. Someone commented on how HIV negative people should stop feeling entitled. Basically, explaining how it is all our responsibility to protect ourselves. I would have liked to believe that that is what we have been doing. We advocate for people to make sure that they regularly test for HIV and use a condom whenever they’re having sex. While I agree with that comment, that people should be responsible and take care of themselves, it also doesn’t take away the criminality of someone intentionally infecting another person with HIV.
Intentionally infecting another person is a criminal act and this is how one can go about charging someone.
In South Africa, there are no specific laws that criminalise a person for non-disclosure, transmission or exposure of HIV. After an outcry from activists, there was a case in 1999, to revise this. However, the South African Law Reform Commission decided, that it would “not be principled” to enact new legislation. It believed that existing common law crimes were deemed “sufficient” to bring fourth charges. You can read more on the judgment here: https://www.gov.za/sites/default/files/gcis_document/201409/dp80prj85hivbehave19990.pdf
These law crimes are:
- Murder
- Assault
- Assault with the intent to do grievous bodily harm
- Rape, or
- Indecent assault
For successful prosecution, one must prove the following:
- You must show that the person knew their status at the time of sexual intercourse
- That you were not aware of their status, and
- You did not consent to have unprotected sex
I have done research on this for many years and I have followed several cases. In South Africa there there’s only 1 case, to date, that was successful in convicting someone of murder for HIV exposure. This was in 2013. Lovers Phiri, an HIV councilor had been living with HIV for 3 years. He was aware of his status. He had been working at a local clinic when he met a woman who had come to test. She tested HIV negative. Immediately after meeting, the two developed a romantic relationship. The woman claims they had consensual sex. However, on two occasions, the accuser refused to use a condom. Despite her asking him to do so, Mr Phiri declined. When she tested again, her results were positive. She was able to successfully prove that 1) Mr Phiri knew his status, 2) She was not aware of his status, and 3) She did not consent to having unprotected sex. The accuser was sentenced to 6 years in prison. You can read more on the case here, http://www.saflii.org/za/cases/ZAGPPHC/2013/279.pdf
This conviction received applause from HIV activists across the country. It was highly celebrated because this was rare for South Africa. Other cases were unsuccessful because, “The plaintiff has not been able to prove that the accuser intentionally infected them with HIV”.
The last case I read was in 2017. A woman alleged that a local businessman infected her after he intentionally slipped off a condom during sex. He disappeared, taking her money and some of her belongings. She later found out that he was married and had infected his wife as well. When she tried to seek a legal conviction, the case was thrown out of court because there was no concrete evidence to prove this allegation.
Let’s break this down:
1) The law states, “you must show that the person knew their status at the time of sexual intercourse”. The man claimed he didn’t know his status at the time of sexual intercourse. When the woman convinced the wife to testify that he had also infected her, the lawyers argued that there was no science to prove who infected who. If the accused was HIV positive, how we do know it wasn’t the wife who infected him? And they couldn’t prove otherwise. So basically, the man didn’t know.
2) The second point that the law refers to is, “you were not aware of their status”. How does she prove this? The man can claim that they had an honest conversation about his status, and she accepted him. Which brings us to the 3rd point,
3) “You did not consent to have unprotected sex”. The woman will need to prove that she didn’t give her consent to have unprotected sex with the accused. After the man has claimed he openly shared his status, she was comfortable in having unprotected sex. Essentially, it’s her word against his.
One of the reasons Lovers Phiri’s case was an easy win is because he kept changing his story and that compromised his conviction. Although the South African law says you can criminally charge someone for infecting you with HIV, it is relatively impossible to prove that someone infected you with HIV. I keep referring to South Africa for a reason. Activists have claimed that South African law is not strict enough, in comparison with other countries.
The US, for example, has more HIV convictions than anywhere else in the world.
In 2008 an HIV positive man was sentenced to 25 years in prison after spitting in the mouth and eye of a police officer. Although, it has been scientifically proven to be difficult to transmit HIV through saliva, the jury still found the man guilty, referring to his saliva as a “deadly weapon”.
In 2015, an HIV-positive sergeant in the US Air Force, was sentenced to eight years in prison after being found guilty of aggravated assault for failing to inform several partners about her status. She didn’t infect them. But for the fact that she didn’t disclose her status, she was convicted.
An American court found a gay wrestler guilty of “recklessly transmitting HIV” in 2015 and sentenced him to 30 years.
To date, 72 countries had HIV-specific criminal laws. As of 2016, there were at least 313 arrests, prosecutions or convictions in 28 countries.
So, in summary, to answer our main question – “Can I criminally charge someone for intentionally infecting with HIV?”. Theoretically, yes. But practically, to prove this is a different story.
