The 'intentional' sexual transmission of HIV : a note of caution in light of Phiri v S : case note

• Author: Annelize Nienaber
• DOI: 10.10520/EJC-7978bd1df
• Published date: 01 January 2014
• Date: 01 January 2014
• Record Number: sapr1_v29_n2_a15
• Pages: 522-533

Cases where HIV was deliberately transmitted are rare. See, Bunnell et al ‘Changes in sexual risk

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behaviour and risk of HIV transmission after antiretroviral therapy and prevention interventions in

rural Uganda’ (2006) AIDS 85-92 and Marks et al ‘Meta-analysis of high-risk sexual behaviour in

persons aware and unaware they are infected with HIV in the United States: implications for HIV

prevention programs’ (2005) Journal of Acquired Immune Deficiency Syndromes 446-53.

South African Law Commission Project 85 Fifth interim report on aspects of the law relating to

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AIDS: The need for a statutory offence aimed at harmful HIV-related behaviour.

For example, in Benin, Botswana, Lesotho, Malawi, Mali, Niger, Sierra Leone, Uganda, Tanzania,

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Togo, Zambia and Zimbabwe; in this regard, see Eba ‘Pandora’s box: The criminalisation of HIV

transmission or exposure in SADC countries’ in Viljoen and Precious (eds) Human rights under

threat: Four perspectives on HIV, AIDS, and the law in Southern Africa (2007) 29-34; Pieterse

‘Disentangling illness, crime and morality: Towards a rights-based approach to HIV prevention in

Africa’ (2011) African HRLJ 57; and Canadian HIV/AIDS Legal Network (2007) A human rights

analysis of the N’djamena model legislation on AIDS and HIV specific legislation in Benin, Guinea,

Guinea Bissau, Mali, Niger, Sierra Leone and Togo.

Regarding the academic debate in South Africa about the possible criminalisation of sexual HIV

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transmission, see eg Van Wyk ‘The need for a new statutory offence aimed at harmful HIV related

behaviour: The general public interest perspective’ (2000) Codicillus 2; Viljoen ‘Stigmatising

HIV/AIDS, stigmatising sex? A reply to Professor Van Wyk’ (2000) Codicillus 11.

Nienaber ‘Liability for the wrongful transmission of communicable diseases in South African

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prisons: What about HIV?’ (2013) SAPL 163.

The ‘intentional’ sexual transmission of

HIV: A note of caution in light of Phiri v S

1 Introduction

Most legal practitioners and laypersons agree, if someone deliberately or

intentionally transmits the Human Immunodeficiency Virus (HIV) to a sexual

partner, that person deserves legal sanction. South Africa has opted not to

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establish a separate set of criminal offences to criminalise H IV transmission in

this context, unlike several other African countries that have established separate

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crimes for the intentional or negligent transmission of HIV. In South Africa, policy

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considerations have prompted the application of existing criminal law principles

in court cases dealing with the intentional or negligent transmission of HIV to

sexual partners.4

Up to now, surprisingly few civil or criminal cases that relate to the wrongful

or unlawful transmission of HIV during sexual intercourse have reached our

courts. As I have pointed out elsewhere this is due to a variety of factors, most

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importantly, however, in the context of the transmission of communicable