The accused was living with HIV and was mother to a 10 month-old child, whom she breastfed. She was accused by another woman of breastfeeding that woman’s child. The complainant mother and child tested negative for HIV. No evidence was presented on the accused’s viral load. The accused was legally unrepresented at her trial in the magistrates court. She argued that she had mistaken the complainant child for her own, and had breastfed the child in error. She was convicted of deliberate transmission of HIV.
Decision and relevance On appeal to the High Court, the accused argued (amongst others) that the State had failed to prove transmission to establish the crime and, in the alterative, that the State had failed to prove that she knew or realised there was a real risk of transmission through breastfeeding. The Court interpreted the offence as being directed at sexual transmission of HIV and requiring a mens rea standard of an intention, actual or legal, to transmit HIV through sexual intercourse. The Court stated that the 42 legislature had not intended to criminalise transmission through breastfeeding. The Court stated further that there was no evidence that the accused was aware that breastfeeding would expose the child to HIV, particularly through a single exposure. The Court held that the crime did not include acts of exposure to HIV without proof of transmission occurring. The Court noted, obiter dictum, that there is a need to “revisit the section with view to developing proper guidelines for prosecution” as it fails to recognise advances in scientific research that would establish defences that should be recognised at law, including information contained in the Swiss Statement. The accused was acquitted and the appeal upheld.
