Criminal Transmission of HIV/AIDS

Charlie-Sheen-660-playboy

Notorious Hollywood bad boy, Charlie Sheen made headlines last week when he revealed that he was HIV positive. I could hear the world gasp at this news, infact the world is still gasping, this seems to be the usual reaction once one admits to being HIV positive. Many who followed Charlie’s lifestyle would say they saw this coming with his drug buzzed parties, scandals with prostitutes and so on.

Following his revelation on the Today Show, Charlie revealed that he has dished out millions to silence sex partners who were blackmailing him once he shared with them his HIV status.

Although Charlie emphatically said he has never with held this information from his sex partners, a few claim they were never told. As a lawyer I found this all interesting. If Charlie did in fact reveal to his sex partners that he is HIV positive, he is in the clear for any charges. HOWEVER! He would be in a whole lot of trouble if he failed to disclose his HIV status.

So, where does Nigeria stand on the prosecution of deliberate transmission of HIV?

On the 3rd of June 2015 the Sexual Offences Bill, sponsored by Senator Christiana Anyanwu, was passed by the Nigerian Senate.

Section 26 of the Sexual Offences Bill 2015 makes it an offence to deliberately transmit HIV or any other life threatening sexually transmitted diseases:

  1. (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know

(a) will infect another person with HIV or any other life threatening sexually transmitted disease;
(b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease;
(c) will infect another person with any other sexually transmitted disease,
shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable, upon conviction, to imprisonment for a term of not less than twenty years but which may be enhanced to imprisonment for life.

In the same vein, section 43 of the Bill frames non-disclosure of HIV or any other life threatening STIs as sexual assault because it is seen as fraud vitiating the consent to otherwise consensual sex.

The Act has been described by critics as being overly vague which is similar to many other overly broad HIV criminalization statutes across Sub-Saharan African.

Whereas in England, convictions in relation to sexual transmission of HIV have been provided under section 20 of The Offences Against The Person Act 1861 which provides that:

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable…to imprisonment…for not more than five years”

In R v Dica, England and Wales’ first successful prosecution for sexually transmitting HIV, the jury at Inner London Crown Court found 37 year old Mohammed Dica guilty of two counts of “ biological” grievous bodily harm after failing to tell the 39-year-old mother-of-two he had Aids. She will now be on medication for the rest of her life. Dica, from Mitcham, south London, was convicted in October, 2003. He was jailed for four and a half years.

The Sexual Offences Bill is definitely a welcomed development under Nigerian law and as a lawyer I am excited to see how the courts will interpret this in cases to come. The need for criminalization of transmission of HIV cannot be overstated, with a few reasons being that:

  • It reduces onward transmission by disabling the individual Defendant from exposing others to the virus
  • Deterring others with HIV from engaging in behaviors that risk transmission
  • It is also a means of seeking retribution on the part of those who feel wronged.
Regina
#ReginaRex

REFERENCES

– See more at: http://www.hivjustice.net/news/nigeria-senate-passes-law-criminalising-hiv-non-disclosure-exposure-and-transmission-with-vague-and-overly-broad-statutes-in-the-sexual-offences-bill/#sthash.fCyEKSbG.dpuf

http://www.sigmaresearch.org.uk/files/report2005b.pdf

http://www.nassnig.org/document/download/1347

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