A 26 year-old woman who pleaded guilty to having unprotected sex with her partner in 2007 was given a five year suspended sentence primarily because the lover did not test HIV-positive.
The woman was convicted under s79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004, which makes it a crime for anyone who realises 'that there is a real risk or possibility' that she might have HIV, to do 'anything' that she 'realises involves a real risk or possibility of infecting another person with HIV'. So, although though the crime is called 'deliberate transmission of HIV', a wide range of variables are possible that involve neither being 'deliberate' nor actually transmitting HIV.
In this case, the man wanted to withdraw the charges, as the two reports below, from The Herald (via allAfrica.com) on April 8th and April 2nd show, but the case proceeded anyway.
Zimbabwe: Woman Spared Jail
8 April 2008
Harare — A Bulawayo woman who had unprotected sex with her lover knowing she was HIV positive has been spared jail after a magistrate slapped her with a wholly suspended five-year prison term, largely because he did not get infected.
The woman, aged 26, who stays in Nkulumane, pleaded guilty to deliberately being intimate with another person in October last year knowing she was HIV positive. Bulawayo regional magistrate Mr Cephas Sibanda adjourned the case on several occasions to allow for another HIV test by her lover to check if he was infected with HIV.
Zimbabwe: HIV Positive Woman's Case Postponed Again
2 April 2008
Harare — A WOMAN who was last year convicted of having unprotected sex with her lover well knowing that she was HIV positive had her case postponed again to April 25 as the court awaits her lover's second HIV test results.
The 26-year-old woman who resides in Nkulumane pleaded guilty to deliberately infecting another person with HIV before Bulawayo regional magistrate, Mr Cephas Masaka Sibanda.
She is now out of custody on her own cognisance and the remand is to allow for another HIV test by her lover.
The case has been postponed on several occasions from the time of her conviction for various reasons.
The main stumbling block is that her lover is now reluctant to come forward with a second set of his results and according to her, he is in his rural home in Gokwe.
Initial results showed that the lover was HIV negative and she had been remanded to November 29 last year, so that her lover could have another test.
The matter went out of the system due to the two-month work stoppage by court personnel who were demanding better working conditions and remuneration.
She was convicted in September last year and has been awaiting sentence since then.
At her initial appearance, the lover took the witness stand and testified that he wanted to withdraw charges against her.
The lover, whose test results indicated that he was still negative, expressed his wish to withdraw charges against her saying he had made the report while angry over what she had done.
The lover has indicated that he still loves his woman despite her status and indicated that they would continue with their relationship although with much caution as he is now aware of the dangers.
From that date when the court ordered that he should go for a second test, the lover has never set his foot at the courts and the court cannot pass sentence without knowing his HIV status.
The Government has put laws that state that if someone knowingly infects another with the deadly HIV, they should be given a sentence of 25 years in jail.
Mr Patrobs Dube, for the State said on July 30 last year, her lover visited her residence and asked for permission from her aunt so that he could take her along to his rural home to meet his relatives.
He was granted the permission.
On 5 August last year, the lovers were intimate before leaving for Kwekwe where they had sex.
They stayed together for a week.
The man's brother, who had got wind from their cousin that she was HIV positive, later informed the complainant.
The lover came to Bulawayo and she confirmed her HIV status and showed him her medical cards as evidence that she was on ARVs.
A report was then made to the police leading to her arrest.
According to State papers the results from testing the lover underwent at Mpilo Central Hospital show that he is HIV negative.