A 47 year-old HIV-positive man has been jailed for 14 years in Uganda for having sex with a mentally ill young woman and allegedly infecting her with HIV.
Although there is currently no criminal HIV transmission in Uganda, the trial took place during fierce public debate over the HIV Prevention and Control Bill which seeks criminalise "wilful" HIV transmission. However, sex with a mentally ill person is a criminal offense regardless of HIV status that carries a penalty of a 14 year prison sentence.
I've included two articles here. The first, from New Vision Online, reports the trial and setencing and refers to the legal debate. The second, from IRIN/Plus News, a few weeks earlier, examines the proposed law and civil society's reactions to it.
Man jailed for infecting girl with HIV
New Vision Online
Wednesday, 3rd December, 2008
By Dradenya Amazia
A 47-year-old man is to serve 14 years in jail for having sex with a mentally ill 19-year-old-girl and infecting her with HIV/AIDS.
Sarafino Aginya is a resident of Metu in Moyo district.
Having sex with a mentally ill person is an offence.
Aginya, who was arrested red-handed last August, yesterday pleaded guilty, and blamed Satan.
Any person who has sex with a woman, knowing that she is an idiot or imbecile, is liable to imprisonment for 14 years, according to the Penal Code.
Passing judgment, Magistrate Geofrey Salaume, said Aginya intentionally infected the girl, which had traumatised the family and her care-takers.
The night he committed the horrific act, Salaume said, Aginya pretended to be drunk and the girl’s parents offered him accommodation.
In the middle of the night, Aginya forced the girl into “live sex and infected her with HIV/AIDS” well aware of his status, the magistrate stated.
“You have traumatised and abused the hospitality the family of this girl provided you by adding more stress and misery to her parents by forcing her to have unprotected sex while knowing that you have HIV/AIDS,” Salaume said while reading his ruling. Salaume said there was need to keep people like Aginya “away for sometime so as to make others learn.”
“I want to keep you away from others by giving the maximum punishment which I feel is proportionate to your act, which will be 14 years of imprisonment.”
He said Aginya’s act was a taboo in African culture.
“We can’t tolerate this kind of act. It is taboo in African culture to have pre-marital sex with a girl at her parents’ home and in their bed,” he fumed.
Salaume cautioned the people of Moyo to be careful with distant relatives and friends when extending hospitality to them. Aginya has 14 days to appeal to the High Court if he so wishes.
The prosecutor produced a medical report proving that the accused was HIV-positive and had infected the girl.
The court heard that Aginya was accommodated in the same room with the girl. The mother heard her screaming and rushed to the bedroom where she found Aginya forcefully having sex with the girl. Aginya was arrested and handed over to the Police.
The intentional spread of HIV/AIDS is not covered by the Penal Code. But the HIV/AIDS Prevention and Control Bill, now in Parliament, seeks to make this a criminal offence. It is intended to provide a legal framework for the national response to HIV and protect the rights of individuals affected by HIV.
The Bill has, however, been vehemently opposed by the people living with the disease. The Bill has been also criticised by activists, saying it requires HIV-positive people to reveal their status to their sexual partners and pregnant women to be tested.
Laws that make the intentional HIV transmission an offence have been in effect in the developed world. The trend is growing in Africa, where higher prevalence levels make such laws attractive to policymakers.
In Switzerland, a man was sent to jail earlier this year for infecting his girlfriend with HIV, even though he was unaware of his HIV status. A Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a Police officer.
UNAIDS has warned that using criminal laws in cases other than intentional transmission could create distrust between healthcare workers and patients.
UGANDA: Draft HIV bill's good intentions could backfire
24 November 2008
AIDS activists in Uganda have slammed a proposed new law that will force HIV-positive people to reveal their status to their sexual partners, and also allow medical personnel to reveal someone's status to their partner.
The HIV Prevention and Control Bill (2008) is intended to provide a legal framework for the national response to HIV, as well as protect the rights of individuals affected by HIV.
Activists agree that Uganda needs legislation to guide its HIV policy. "We want the law; as a matter of fact we are overdue in having a legal framework," said Beatrice Were, a leading HIV-positive campaigner.
However, they are concerned that the bill in its current form could worsen the difficulties many HIV-positive people experience.
Pregnant women will have to undergo compulsory testing, which proponents said would increase the number of women accessing prevention of mother-to-child HIV transmission (PMTCT) services; in 2007, only 600,000 pregnant women of 1.4 million were tested for HIV, 91,000 of whom were found to be infected.
Dr David Apuuli Kihumuro, head of the Uganda AIDS Commission, told IRIN/PlusNews that certain sections of the bill needed to be revised, for instance, the provision that HIV status disclosure would be mandatory for couples planning to marry.
"We have to think about the repercussions of this in a male-dominated society," he said, noting that many women were afraid of their husbands' reactions once they revealed their HIV status; at least three women have been killed by their husbands this year because they were positive.
Stella Kentutsi, programme manager at the National Forum of PHLA Networks in Uganda (NAFOPHANU), said medical practitioners usually had no way of knowing how a spouse or other sexual partners might react, and should therefore not be permitted to reveal an infected person's HIV status. "Even if the partner has a right to know ... forceful revelation is not okay," she said.
The bill also criminalises - with a punishment of the death penalty - the intentional or wilful transmission of the virus. President Yoweri Museveni has said he "fully supports" an HIV/AIDS law that would criminalise deliberate transmission of the virus. There has been a recent public outcry over media reports of HIV-positive individuals infecting minors, which has gained support for the bill.
"If you push for ... punishment because someone is infected, you are discriminating and undermining the rights of people living with HIV," Were said.
Kentutsi asked: "How do you know who infects intentionally and wilfully and who does not?" What makes it intentional or wilful?"
Activists said applying criminal law to HIV-risk behaviour was likely to undermine prevention efforts and, rather than encouraging people to know their status, would actually deter them from seeking HIV testing.
The bill could also allow the government to avoid its responsibility to prevent HIV, and foist the blame for being positive on infected people.
"We should avoid creating scenarios where people living with HIV/AIDS are looked at either criminals or potential criminals," a recent statement by NAFOPHANU said.
"Rather than introducing laws criminalising HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment."