THE Government has listed HIV/AIDS as one of the sexually-transmitted infections (STIs), whose deliberate transmission to another partner will now be punishable under law.
The Criminal Laws Amendment (Protection of Children and
Young Persons) currently before Parliament has a clause that includes HIV/AIDS
as one of the STIs, whose wilful transmission can be charged as a criminal
offence.
Other STIs that are punishable include syphilis, gonorrhoea
and herpes, among others.
Another objective of the Criminal Laws (Protection of
Children and Young Persons) Amendment Bill is to raise the age of sexual
consent from 16 to 18.
Clause Eight of the Bill stipulates that a law that
decriminalises deliberate HIV/AIDS transmission still stood after the Marriages
Act repealed Section 79 of the Criminal Law (Codification and Reform) Act that
sought to impose heavy and long-term jail sentence on those convicted of wilful
transmission of HIV/AIDS.
“Deliberately infecting persons with sexually-transmitted
diseases was originally dealt with in two sections of the Criminal Law Code.
Section 78 makes it a crime for anyone to deliberately infect another person
with a sexually-transmitted disease other than HIV; section 79 made the same
provision for those who infected others with HIV, but provided for a much
heavier sentence to be imposed. Section 79 was repealed by the Marriages Act in
2022, which means that it is no longer a crime to infect other persons with HIV
(because section 78 specifically excludes HIV),” reads Clause Eight of the
Bill.
“This section will amend section 78 of the Code to include
HIV among the sexually transmitted diseases covered by the section.”
In 2022, the Government decriminalised wilful transmission
of HIV to a partner through the Marriages Act when it repealed a legal
provision that made it an offence, as the Second Republic sought to move with
international trends.
The repealed section provided for 20 years in prison for
anyone convicted of deliberate transmission of HIV/AIDS, whilst Section 78 of
the Criminal Code, which now includes HIV/AIDS as an STI, provides for a fine
equal to Level 14 or five years in prison or both.
Section 78 of the Criminal Code (Codification and Reform
Act reads as follows: “(2) Any person who (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, shall be guilty of deliberately infecting
that other person with a sexually-transmitted disease and liable to a fine up
to or exceeding level fourteen or imprisonment for a period not exceeding five
years or both.”
Recently, President Mnangagwa invoked his powers under the
Presidential Powers (Temporary Measures) Act to gazette Statutory Instrument 2
of 2024, in compliance with a Constitutional Court ruling that had declared a
section of the law that sets sexual consent age at 16 as unconstitutional.
The Statutory Instrument invoked by the President raised
the age of consent to sexual relations to 18, consistent with the Constitution
which sets the minimum marriage age at 18 and defines all young people as below
the age of 18, while the original law defined them as below the age of 16, so
protection was withdrawn from 17 and 18-year-olds.
The Presidential Powers have a lifespan of just six months
during which Parliament has to pass a substantive law if the desire is to make
the measure permanent. Herald
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