Overview
South Sudan has an overly broad HIV-specific criminal law and provides for enhanced sentences for other offences where there is perceived exposure to HIV.
Section 262 of the Penal Code ostensibly criminalises “deliberate transmission of HIV/AIDS (sic)”, however the text indicates that this provision is much broader than it first appears. This section criminalises anyone who, knowing they are living with HIV or realising there is “a real risk or possibility” that they are living with HIV, “intentionally does anything or permits the doing of anything” which they know will infect, or does anything which they realise involves “a real risk or possibility of infecting another person with HIV/AIDS (sic)”. This provision carries a penalty of imprisonment not exceeding fourteen years and/or a fine.
The provision contains a defence in situations where the other person was aware that the defendant was living with HIV and consented to the act, “appreciating the nature of HIV/AIDS and the possibility of becoming infected with it.”
Section 263 provides for sentence enhancements for the offences of rape, aggravated indecent assault, and sexual intercourse or performing an indecent act with a young person, “involving any penetration of any part of his or her or another person’s body that incurs a risk of transmission of HIV/AIDS (sic)” where it is proved that at the time of the offence the accused was living with HIV, proven with a test, whether or not they were aware of their infection. This offence carries a penalty of imprisonment for up to ten years.
Section 263(2)(b) states that if it is proved that someone accused of committing an offence under Sections 262 or 263 was living with HIV within thirty days of committing the act, it will be presumed that they were living with HIV at the time of the act, unless the contrary is shown.
Section 261 also criminalises deliberate infection with a sexually transmitted disease, however, under the interpretations outlined in Section 5, HIV/AIDS is excluded from the definition of ‘sexually transmitted disease’ for the purposes of the Penal Code, so HIV transmission is not covered by this provision.
We are not aware of any cases of HIV criminalisation in South Sudan to date.
Laws
The Penal Code Act, 2008
Section 262. Deliberate Transmission of HIV/AIDS
(1) Whoever—
(a) knowing that he or she is infected with HIV/AIDS; or
(b) realizing that there is a real risk or possibility that he or she is infected with HIV/AIDS;
(c) intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realizes or involves a real risk or possibility of infecting another person with HIV/AIDS,
commits the offence of deliberately transmitting HIV/AIDS, whether or not he or she is married to that other person, and upon conviction, shall be sentenced to imprisonment for a term not exceeding fourteen years or with a fine or with both.
(2) It shall be a defence to a charge under subsection (1), above, for the accused to prove that the other person concerned—
(a) knew that the accused was infected with HIV/AIDS; and
(b) consented to the act in question, appreciating the nature of HIV/AIDS and the possibility of becoming infected with it.
Section 263. Sentence for Certain Offences where Accused is Infected with HIV/AIDS
(1) Where a person is convicted of—
(a) rape;
(b) aggravated indecent assault; or
(c) sexual intercourse or performing an indecent act with a young person, involving any penetration of any part of his or her or another person’s body that incurs a risk of transmission of HIV/AIDS;
and it is proved that, at the time of the commission of the offence, the convicted person was infected with HIV/AIDS, whether or not he or she was aware of his or her infection, he or she commits an offence, and upon conviction shall be sentenced to imprisonment for a term not less than ten years.
(2) For the purposes of subsection (1), above—
(a) the presence in a person’s body of HIV/AIDS antibodies or antigens, detected through an appropriate test, shall be prima facie proof that the person concerned is infected with HIV/AIDS;
(b) if it is proved that a person was infected with HIV/AIDS within thirty days after committing an offence referred to in sections 262 and 263 of this Act, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV/AIDS when he or she committed the offence.
Section 261. Deliberate Infection of Another Person with a Sexually Transmitted Disease
(1) Whoever—
(a) knowing that he or she is suffering from a sexually transmitted disease; or
(b) realising that there is a real risk or possibility that he or she is suffering from a sexually transmitted disease,
intentionally infects any other person with the disease, or does anything or causes or permits anything to be done with the intention or realising that there is a real risk or possibility of infecting any other person with the disease, commits the offence of deliberately infecting that other person with a sexually transmitted disease, and upon conviction, shall be sentenced to imprisonment for a term not exceeding five years or with a fine or with both.
(2) If it is proved in a prosecution for intentionally spreading a sexually transmitted disease, that the person charged was suffering from a sexually transmitted disease at the time of the offence, it shall be presumed, unless the contrary is proved, that he or she knew or realised that there was a real risk or possibility that he or she was suffering from it.
(3) It shall be a defence to a charge under subsection (1), above, for the accused to prove that the other person concerned—
(a) knew that the accused was suffering from a sexually transmitted disease; and
(b) consented to the act in question, appreciating the nature of the sexually transmitted disease and the possibility of becoming infected with it.
HIV Justice Network's Positive Destinations
Visit the South Sudan page on Positive Destinations for information on regulations that restrict entry, stay, and residency based on HIV-positive status, as well as access to HIV treatment for non-nationals.