Botswana: Judge acquits lawyer accused of HIV exposure

A Botswanan judge has acquitted an HIV-positive lawyer who was accused of HIV exposure primarily due to the fact that Botswana does not have criminal HIV exposure or transmission laws.

The case rested on whether the man, who had sex with a 24 year-old woman "without her permission" (although he doesn't appear to have been charged with rape or sexual assault) used a condom or not.

The judge also felt that the complainant's testimony was not strong enough – she only felt but did not actually see that a condom was not used.

The headline of the news report from the Sunday Standard refers to the current debate in Botswana – a country with an adult HIV prevalence of 24% – over whether to criminalise intentional or reckless HIV transmission.

No law to punish deliberate spread of HIV/AIDS’ - Court
by Morula Morula
22.06.2008

Gaborone Chief Magistrate Lot Moroka says that there is no law in Botswana which punishes the deliberate spread of HIV/AIDS.

Moroka said Section 184, under which Michael Morwamang was charged, did not specifically mention HIV/AIDS but only says ‘any other dangerous disease to life’.

Moroka said this when discharging and acquitting Morwamang from charges of having unlawful and unprotected sex with a 24-year-old woman on July 7, 2005 whilst he knew that it was likely to spread HIV/AIDS.

Dismissing the charges against Morwamang, Moroka said that the state had failed to prove whether or not a condom was used even though it had been proven that there was unlawful sexual intercourse and that there was no consent from the complainant.

There was proof that the accused person knew that his conduct was likely to spread the infection that was dangerous to life. Further, he said it was evident that the accused person was on antiretroviral treatment and that he had had sex with the complainant.

Besides all this, Moroka said that there was inconsistency in the evidence of the complainant and the second state witness.

The complainant’s evidence, he said, was that when she woke up and found the accused on top of her, she was not surprised or shocked but that a friendly discussion took place between them.

This, he said, is highly inconsistent because one would have expected that she would be shocked to find a stranger having sex with her but that she did not express that but only asked soft questions such as who he was and why he was having sex with her.

The complainant, he said, expressed herself as someone who had vast experience in sex and that she could tell whether a condom was used or not and that if she knew from her experience that no condom was used why then did she ask Mmapula, her friend, if a condom was used or not?

Though the Court could not dispute her experience, the complainant’s knowledge was not based on seeing but on feeling. To this, he said that there was no doubt as to whether a condom was used or not and that the prosecution had failed to prove their case beyond doubt.

Lastly, Moroka warned Morwamang that a man in his condition should not act irresponsibly in order to contain the spread of the disease which can expose him to secondary infection. He also said that he understood that alcohol had played a critical role on that day as the three behaved recklessly and that it was a big advantage to Morwamang because the complainant had tested negative.

Ookeditse Maphakwane appeared for Morwamang.

Further details of the case were published in November 25 2007 edition of the Sunday Standard.

HIV infection case enters Botswana courts for the first time
by Morula Morula
25.11.2007

A Gaborone woman, whose identity can not be revealed, told Gaborone Chief Magistrate, Lot Moroka, that she was surprised to find Gaborone lawyer, Michael Morwamang of the Attorney General’s Office, making love to her without using a condom in his house in the early morning of July 6, 2005.
The woman said this on Thursday in a first ever case of its kind in the country where a man has been charged with “unlawfully having unprotected sexual intercourse with someone, an act he knew or had reason to believe to be likely to spread the infection of HIV/AIDS.”

According to the woman, that day had started with her and a friend chatting. Then her friend was phoned by her boyfriend inviting her for drinks at a local hotel, so they went together.
She told the court that on reaching the hotel, they found that the boyfriend had moved to another local hotel and that they again followed him there. On arrival, she said that they found her friend’s boyfriend drunk and that within a short time he told them that he wanted to go home and sleep.

The two ladies then finally ended up in Chezamtemba Club in Mogoditshane where she said she, for the first time in her life, tasted alcohol after persuasion by her friend who asked her “to take one or two.”

Instead, she told the Court that she drunk so many bottles of Hunter’s Dry to an extent that she blacked out. Before the blackout, she told the Court she had vomited outside the club on several occasions.

After the blackout she told the Court she did not know what happened and when she came to, she found Morwamang on top of her.

Asked by the Directorate of Public Prosecution, Merapelo Mokgosi, how she felt after the incident, she said that she felt angry and traumatized. Further, she stated that she had immediately inquired from Morwamang what he had been doing to her and that Morwamang had gotten angry with her and slapped her.

A while later, the woman said that she had found some ARV tablets in Morwamang’s kitchen. When asked why she thought they were ARV tablets, she told the Court that she could identify them because her mother is on the treatment and that she had personally been administering them to her.

On why she thought they belonged to Morwamang, she said that his name was written on the box that contained them. When asked under cross examination by the defendant’s lawyer, Ookeditse Maphakwane, why she had, after the incident, not reported it to the police, she said that she did not do that immediately because she was too traumatized, not knowing what to do and whom to tell.

She denied that the whole plan was to hide from the fact that she had betrayed her friend Mmapula’s trust by having sexual intercourse with her friend’s newly found boyfriend, saying what had happened between her and Morwamang was not to her liking and she did not chose to do that.

The lady also denied that she caused all the trouble to hide the fact that Morwamang’s wallet had gone missing saying that Morwamang, who had initially claimed that he was missing his wallet, had finally found it and took money out of it to give to Mmapula to buy some cigarettes.

When told that Morwamang would tell the Court that she had actually kissed him, hugged him, and positioned herself in a sexual and compromising manner when Morwamang had intended to show her where she would sleep, the lady denied this saying that though she was drunk she did not remember doing anything of that kind.

When reminded that she had told the Court that she had blacked out and could not remember how she had come to Morwamang’s place, she said that though she agrees that she was drunk, if she had indeed kissed, hugged and positioned herself in a sexually compromising manner, as she is alleged to have done, she would have remembered that.

When asked about the disparities in her statement made to the police about how they were collected from Morwamang’s place after the incident and what she said had happened in Court, she said that the differences might have resulted from the fact that the police officer who was taking the statement from her was writing fast as she said her case needed urgent attention as she had said her suspect was on ARV treatment.

In the coming weeks, Mr. Morwamang will have to enter the dock and answer to prosecution’s examination and explain why he was having unprotected intercourse if he, as it is alleged, is HIV positive. The case continues.