Premier Helen Zille is once more raising the spectre of criminalising HIV transmission. This is an old debate. In 2001, the South African Law Reform Commission considered the matter and concluded that current legislation is sufficient to deal with intentional transmission of HIV. The report was submitted to the Minister of Justice in terms of the South African Law Commission Act, 1973 (Act 19 of 1973). The committee received a range of expert submissions. It was chaired by Justice Edwin Cameron.
Below is the Commission's summary (with footnotes ommitted).
SOUTH AFRICAN LAW COMMISSION
FIFTH INTERIM REPORT ON ASPECTS OF THE LAW RELATING TO AIDS
1. This Report is the last in a series of Interim Reports under the Commission's broad
investigation into aspects of the law relating to AIDS. The preceding Reports dealt with certain health-related issues (First Interim Report); pre-employment HIV testing (Second Interim Report); HIV and discrimination in schools (Third Interim Report); and compulsory HIV testing of persons arrested in sexual offence cases (Fourth Interim Report).
Scope of this Report
2. This Report deals with harmful (i e unacceptable) sexual behaviour by persons with HIV or AIDS that could transmit HIV or expose others to HIV, current measures available to address such behaviour, and whether there is a need for statutory intervention. The recommendations cover only consensual sexual activity. Transmission of or exposure to HIV can also occur during non-consensual sexual acts such as rape. The need for further measures in the latter regard will be dealt with under the Commission's investigation into sexual offences.
Source of enquiry
3. The enquiry was undertaken at the request of the Parliamentary Justice Portfolio Committee. The request was made against the background of public concern and pressure for appropriate action regarding deliberate or knowing transmission of HIV infection. This came about largely in response to a number of widely publicised incidents of deliberate transmission of HIV, accompanied by the very real concern that mostly women and young girls are being exposed to HIV infection in this manner.
Three possible options for dealing with the issue
4. During the course of the investigation the Commission identified the following three possible options for responding to the Justice Portfolio Committee's request:
- Codification of common law crimes
Deliberate conduct in the form of deliberate transmission of or exposure to HIV would already be liable to prosecution under the existing common law crimes of murder, assault, assault with the intent to do grievous bodily harm, rape or indecent assault. Negligent conduct would be liable to prosecution under existing law if HIV is transmitted and the victim died as a result of this. It may however be that HIV-related behaviour is difficult to prosecute successfully under these crimes. This would be due mainly to the specific characteristics of HIV as a disease: Its long incubation period and its invisibility may present problems with regard to proof of causation and fault. Aspects regarding consent could further encumber prosecutions. Some believe that it may be necessary to codify the common law to eliminate these difficulties or some of them. This approach would not entail creating any additional, new offence, but would put into statutory form what is already illegal. Such codified HIV-specific offences would then be a clear confirmation of the existing common law position. Codification might also provide an opportunity for the creation of presumptions to deal with current perceived difficulties in the application of the common law.
- Criminalising behaviour not hitherto criminal
The second option stems from the fact that our common law contains three distinct omissions: There are no crimes of negligent injury; of deliberately exposing another to danger short of assault; or of negligent endangerment (exposure). In this regard the following possibilities arose:
Public consultation and deliberation
5. The Commission in January 1999 published a discussion document (Discussion Paper 80) for public comment. At that stage the Commission was not sufficiently convinced to make preliminary recommendations for legislative intervention and the question was left open for debate. Strong comments were received both opposing and supporting legislative intervention and it became necessary to discuss further with a wide range of experts the dilemmas faced by the Commission. Again consensus was not reached. However the strong momentum of opinion amongst a wide range of experts, representing diverse interests, was against legislative intervention.
Position in comparable legal systems
6. In none of the comparable legal systems referred to in the Report (Canada, the United States of America, the United Kingdom, Australia, Zimbabwe and Namibia) have HIV-specific criminal offences relating to consensual sexual acts recently been created on a national level. In systems where there have been such attempts (Canada, the United States and Namibia) they were controversial and met with public opposition which led to their abandonment. In Zimbabwe, where draft legislation introducing HIV-specific criminal offences has apparently been under consideration since 1994, no enactment has as yet been passed.
7. The background material in this Report and the divergent responses and perspectives from commentators and experts bear evidence to the complexity of the issues. In seeking a solution the Commission was guided by the following principles:
- Respect for the human rights and interests of all concerned.
- The primary objective of the creation of an HIV-specific statutory offence/s should be HIV prevention and the protection of the uninfected.
- Legislative intervention should be rationally and scientifically based and not emotionally motivated.
8. The Commission concluded that statutory intervention is neither necessary nor desirable. It is of the view that arguments against intervention override arguments supporting such step. Moreover, the Commission believes that strong indications from the entire process of research and deliberation weigh against statutory intervention and that recommending new legislation under these circumstances would not be principled.
9. Major reasons for this conclusion are the following:
10. The Commission recommends that the present legal position be maintained.
11. In concert with this recommendation, the Commission identifies a pivotal need for the development of practical mechanisms by government departments to utilise effectively the existing common law crimes in cases of harmful HIV-related behaviour; and to encourage a culture of responsibility regarding HIV status.
These mechanisms may include:
- Making the public aware of applicable common law crimes coupled with the assurance that our existing law will indeed be used in respect of harmful HIVrelated behaviour.
- Introducing practical measures to establish a standard of policing, investigation and prosecution that would ensure successful prosecutions of harmful HIVrelated behaviour under the existing law.
- Maintaining and improving public health measures relating to awareness about HIV and its prevention, and public access to HIV testing and counselling. Such activities should be aimed at encouraging a culture of responsibility.