by Dingiswayo Madise: One of the challenges that the subordinate courts face in criminal matters is the issue involving criminal law and HIV and Aids. Many times, courts are faced with multifaceted and thought provoking cases involving victims of sexual assault, namely rape, defilement and sodomy.
The other area where there is much debate is where there is no offence committed and the sexual intercourse was consensual. It has been argued that a partner who knowingly infects another with HIV must be prosecuted where there is evidence that the partner knew that he or she had HIV. However, it is difficult to prove that one knew that he or she had the disease unless it can be shown that there was prior testing. Mere sickness or loss of weight cannot constitute knowledge on the part of the sick partner unless and until they go for HIV testing. The million $ question is: Should we criminalise HIV transmission? Can we not find other ways of reducing the spread of the disease?
