by Oyin Bassir

Created on: March 05, 2007   Last Updated: April 20, 2007

In most climes there have been reported cases of people living with HIV/AIDS(PLAWHA), knowingly having unprotected sexual intercourse with spouses or patners who are ignorant of their positive status. The question has consequently arisen as to whether criminal law can effectively be used to check the spread of HIV/AIDS. Some posit that laws can be used to hold PLWHA accountable for putting others at risk of contacting HIV and for providing legal redress to people infected by, or exposed to HIV through sexual intercourse. Antagonists on the other hand posit that punitive laws will only further exacerbate the discrimination against PLWHA.

Are PLWHA who engage in unprotected sex committing a crime? If so what crime?
Many legislatures around the world have in the last fifteen years had to confront the issue as to whether to criminalise certain conduct in the context of HIV/AIDS:
In Helsinki, Finland, 35 year old Steven Thomas was charged with attempted manslughter for having unprotected sexual intercourse with over 100 women. Thomas had been aware of his status, but all the affected women had been unaware.
In 1995, the parliament of Finland modified its Penal Code relating to crimes against health. Under the new law, anyone convicted of endangering the health of others, even without violence, is guilty of aggravated assault. Two years later, in 1997, Zimbabwe commenced a review of its Criminal code on HIV/AIDS. The new law imposed a term of 15 years imprisonment on anyone with HIV/AIDS who has unprotected sex with another without telling that other of his or her HIV status. Furthermore under that law convicts for sexual offences who are HIV positive recieve stricter penalties than their negative counterparts. The Finnish model has been emulated in several countries including Canada, Australia and New Zealand.
Germaine is the incidental question as to what state of mind will be neccessary to establish an HIV/AIDS crime. In other words, what state of mind will confer culpability? The consensus is that a defendant must be aware of his HIV positive status, coupled with an awareness of how HIV is transmitted. He should in addittion be aware that his conduct carries a risk of personal injury to another. In other words intentionality is favoured as a basis for culpability.
In October 2006, I had a shock inducing encounter with an accused person at the Sango police station in Ibadan. The forty something year old accused person had been arrested for the defilement of a six year old girl. He was HIV positive. It seemed blatant to me that the crime of defilement could not adequately articulate and addrress the magnitude of the man's crime agaist an innocent child.There no doubt exists a need to review Nigeria's existing laws on sexual offences in the light of the realities of the budgeoning HIV/AIDS scourge.
Even those Countries that have laws appear to trivialise the offences in the quantum of penalties that they attract. In 2004, a Zimbabwean refugee in New Zealand was jailed for three years on multiple charges of assault and criminal nuisance for failing to tell several women patners of his HIV status. A three year sentence is a gross understatement of the magitude of the offence.
Because Nigeria's HIV/AIDS law is still contingent, this is a good time to consider what the stance of the law should be, in view of the myriad of contexts in which HIV/AIDS crimes are perpetuauted in the country. It is particularly crucial that sentencing should be strict enough to deter the convict and provide retributive solace for the victim.It is in this sense that criminal laws can help stem the tide of HIV/AIDS transmissions.

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