The social justice implications of criminalisation of HIV transmission

• Pages: 302-319
• Published date: 03 November 2020
• Date: 03 November 2020
• Citation: (2020) 33 SACJ 302
• Author: Robinson, M.

The social justice implications

of criminalisation of HIV

transmission

MATTHEW ROBINSON*

ABSTRACT

In this paper, the author attempts to prov ide some answers about the ‘right

thing’ to do1 in cases where a person ha s wilful ly or negligently exposed

another person to HIV or d oes not tell a partner ab out their HIV st atus

prior to engaging in sexua l relations. To do this, the author introduces a nd

summarise s four main theories of jus tice and demonstrates th at each is

found within the Const itution of the Republic of South Africa, mak ing them

highly relevant for the practice of law in t he country. The analysis reveals

that in cases where there i s legal culpability i n the transmi ssion of HIV, all

four theories of justice and key pri nciples of the Constitution a re violated,

suggesting crim inalisation would be appropr iate in those cases. However,

the paper also illust rates that crim inalising HI V transmis sion would likely

lead to outcomes that would also violate those sa me conceptions of justice

as well as other values impor tant to South Africans, such as compassion and

effective public health. The pape r shows that arguments rooted i n justice

theory and the Cons titution of the Republic of South A frica could be made

both for and against the c riminal isation of HIV tra nsmission.

1 Introduction

According to the World Health Organisation, approximately 25.7 million

of 37.9 million total c ases of HIV infect ion in the world in 2017 were

found in the continent of Africa; th is is more than two-t hirds (68%) of

all cases in the world. Afr ica also had 1.2 million of 1.8 mil lion new

HIV infections i n 2017, also about two-t hirds of the cases i n the world

(67%). Finally, of the 940,000 people who died from AI DS in 2017,

660,000 were in Af rica (66%).2

Whereas HI V is thus a more signicant issue in A frica than any

other continent, it is eastern and souther n Africa that most st and

out globally. This region of the world (comprised of 21 nations from

Angola, south to South Africa, a round the horn of Africa, nor th to

* PhD (Florida State), Professor, Depar tment of Government a nd Justice Studies,

Appalachian St ate University, and Visiting Pr ofessor, University of Zulula nd.

1 M Sandel Ju stice: What is the Right Thing to Do? (2009).

2 World Health Org anisation ‘HIV/AIDS Data and Statis tics’ (2018), available at h ttp s://

www.who.int/hiv/data/en/, accessed on 28 August 2019.

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(2020) 33 SACJ 302

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Ethiopia and Eritrea, and including Madag ascar as well as the tiny

island nations of Comoros, Mauritius, and Seychelles) has 76% of all

HIV infections i n Africa and 53% of all the HI V infections in the world.

Further, eastern and southern A frica comprised 67% of all new HIV

infections in Af rica in 2017, and 44% of al l new HIV infections i n

the world. Finally, 58% of all AIDS deaths in A frica occurre d here in

2017, as did 40% of all A IDS deaths in the world.3 As a nation, Sout h

Africa stands out, not bec ause of its rate of infection (which is fourth,

behind nearby Botswana, Eswati ni, and Lesotho), but because of the

number of people living in the countr y who are infected with H IV.

South Africa had 7.2 million cases of people livi ng with HIV in 2018,

which is more than twice as high as t he next highest country (Nigeria

at 3.1 million HIV infection s).4

HIV is transmitted through hum an blood or other bodily uids

from one person to another, both accidentally and intentionally. It

is estimated that by 2020 about 90% of p eople in the eastern and

southern region of Africa wi ll know of their HIV i nfection status.

This means that at least some H IV transmis sion may be occurring

intentionally or negligently through careless or un safe sexual

practice.5 Even so, there is currently no law in South A frica outlawing

HIV offences such as wilf ully or negligently infecting another pe rson

with HIV or not telling an int imate partner about their s tatus. Cases

can and have been handled in the court s under existing common law

crimes such as murder, attempted murder, assault, and assault with the

intent to do grievous bodily harm.6 S ome sex offences such as rape

and indecent assault could also carr y sentencing enhancements if HI V

were transmitted to a nother person.7

Though South A frica does not have laws crimi nalising HIV

transmission, at least two cases where men repor tedly transmit ted the

virus to women, have been resolved in the courts, leading to t wo

convictions and two prison sentences. In one case, the HI V exposure

was through an act of rape, and in the ot her, it was through consen sual

sex.8 In the rst case, the accu sed (Nyalungu) was convicted of both

rape and attempted murder. As a matter of record, the defendant

3 World Health Org anisation op cit (n2).

4 UNA IDS ‘UNA IDS Data 2018’ (2018), available at https://ww w.unaids.or g/site s/

default/les/ media_asset / unaids-data-2018_en.pdf, 116, accessed on 21 August

2019.

5 UNA IDS op cit (n4).

6 S v Nyalungu 20 05 JOL 13254 (T), Phiri v S 2014 (1) SACR 211 (GNP).

7 See s 51 of the Cr iminal Law Amendment Act 105 of 1977, Schedule 2, par t 1.

8 See S Bha mjee ‘A tale of attempted murder a nd HIV: S v Nyalungu 205 JOL 13254

(T)’ (2008) 29 Obiter 317–328; AG Nienaber ‘The “i ntentional” sexu al transmi ssion

of HIV: A word of caution in light of Phir i v S’ (2014) 29 SA Pub L 522–533.

The social justice implications of

criminalisation of HIV transmission 303

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