Criminal liability for wilful HIV/AIDS infection: a comparative study

South Africa‘s high prevalence of HIV/AIDS coupled with a high crime rate and incidence of sexual violence necessitated the enquiry and study into the role of criminal law to address the wilful transmission of HIV.1 This study shows that criminal law can be used to punish offenders for wrongdoing and therefore finds application in the wilful transmission of HIV.2 The study distinguishes the dividing line between the justifiable use of criminal law and where use of the criminal law becomes discriminatory in nature and counterproductive to public health measures. The United Nations (hereinafter referred to as the UN) laid down guiding principles for countries to adopt when using the criminal law and stated that countries should use existing criminal law offences to prosecute intentional HIV infections.3 The South African Law Commission (hereinafter referred to as the SALC) endorses this approach. South Africa‘s use of the criminal law, in response to harmful HIV behaviour is in line with the UN recommendations as it uses the existing common law offences to prosecute the wilful transmission of HIV, namely murder, attempted murder and assault. Drawing from the writer‘s comparative study in Chapter Six below, South Africa, members of the Zimbabwean parliament, Canada, as well as the American Bar Association have all concluded that the use of specific HIV-related legislation creates some a form of stigmatization towards people living with HIV and is therefore not warranted. This study shows that criminal law has a role to play in the wilful transmission of HIV; however the creation of HIV specific legislation is not recommended and existing criminal law offences should be used to address harmful HIV related behaviour. Such an approach is in line with the guiding principles laid down by the UN and SALC