Criminalisation of HIV/AIDS in South Africa: a critical look at the Criminal Law (Sexual offences and related matters) Amendment Act 32 of 2007

Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS