New Aids law 'draconian', 27 January 2004
Jonathan Berger, a lawyer with the Aids Law Project, told Sapa on Tuesday that such a provision would increase the stigma associated with the disease.
According to media reports Johnny de Lange, the chairman 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 was that someone who did not tell their sexual partner that he or she was HIV-positive be found guilty of rape.
The new recommendation - which was not opposed by members of the ANC, Democratic Alliance and African Christian Democratic Party (ACDP) - was even more strict: that the transmission of the disease becomes a crime in its own right.
De Lange also said everyone had a responsibility to be tested, so not being aware of one's status could not be used as a defence.
He said he could not understand why infected people were not expected to take responsibility for their actions.
Berger said the suggestion was 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 was that this type of provision sent a message to people who were not infected that they did 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 was 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.
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