Mail & Guardian, Aids crime proposal under fire, 27 January 2004

The Aids Law Project has slammed suggestions that the transmission of HIV/Aids be made a crime, saying that such a move would create the dangerous impression that carriers of the virus are alone responsible for ensuring safe sex.

Jonathan Berger, a lawyer with the Aids Law Project, said on Tuesday that such a provision would increase the stigma associated with the disease.

According to media reports Johnny de Lange, the chairperson of Parliament's portfolio committee on justice and constitutional development, suggested during a debate on the Sexual Offences Bill that the transmission of HIV/Aids should become a separate crime because carriers "should accept responsibility for their actions".

Currently, the suggestion is that someone who does not tell his or her sexual partner that he or she is HIV-positive be found guilty of rape.

The new recommendation -- which was not opposed by members of the African National Congress, Democratic Alliance and African Christian Democratic Party -- is even more strict: that the transmission of the disease becomes a crime in its own right.

De Lange also said everyone has a responsibility to be tested, so not being aware of one's status could not be used as a defence.

He said he cannot understand why infected people are not expected to take responsibility for their actions.

Berger said the suggestion is counter-productive.

"It is very unrealistic to believe that a draconian law such as this will get people to test [for Aids]. There are a complex set of factors that stop people from testing. One needs to address those obstacles."

He said the biggest concern is that this type of provision sends a message to people who are not infected that they do not have to take responsibility for safe sex.

"For us the biggest concern is it sends a message to [HIV-]negative people of 'Don't worry, people with HIV are taking responsibility for their own health'.

"It is very important for people who are unaware of their partner's status to proceed as if the person was HIV-positive," he said.

He said using the criminal law to protect people from HIV infection is not an effective way of dealing with the crisis.

"I think this provision will ensure that people do not test and will increase the stigma surrounding the disease.

"The criminal law is not the way to deal with the HIV/Aids epidemic. The common law as it stands is effective in dealing with the wilful transmission of Aids. There is no need to go beyond that."

De Lange was not available for comment as his committee was in a sitting all day on Tuesday. -- Sapa




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