“As a country we’re really struggling with what to do with HIV from a legal perspective."
Lomcebo Dlamini, Swaziland
Lawyer and Activist, Women in Law, Southern Africa (WLSA)
“As a country we’re really struggling with what to do with HIV from a legal perspective—not only the criminal lawyer. There was initially a panic and a lack of understanding of the issues—a hard line taken by the criminal law in terms of wanting to punish HIV transmission under things like ‘attempted murder’. But overtime and with the additional education that has been around, I think we have moved from that extreme position.
At the moment we don’t have any criminal law explicitly mentioning HIV, which is fine, and that is how we would want to keep it. But when issues of HIV arise in criminal cases you can tell that there is difficulty with the issue because of the capacity of the judicial delivery system—the judges, lawyers and judicial officers. They tend to focus on procedural issues rather than on the more controversial issues in a case. For example in terms of explicit criminalisation of HIV transmission it is clear that there should be no offence. I formed this opinion through my work with women.
There are so many things that impact on a woman’s life—well beyond the legal—for example reasons why someone may or may not disclose, or may or may not feel that they are able to disclose. But in terms of aggravating circumstances such as in a rape case, it is more difficult. Although it could be seen as stigmatizing, there is no doubt that an added impact occurs for the victim of rape if HIV transmission also occurs. It is very difficult.
I don’t know why this has happened with HIV and AIDS, but for whatever reason now the onus seems to be on people living with HIV to disclose their status. Why should that be the case?
I mean we all have a responsibility over our own lives. We’re all receiving the same education and the same information. You’re rights come with responsibilities and at the end of the day are you expecting someone else to do it for you? You have to do it for yourself. The onus should not be on another person—ultimately we all have the responsibility. If someone chooses to disclose or doesn’t choose to disclose, you should still have consistent behaviour in terms of protecting yourself.
When the issue arises in cases we’ve got challenges dealing with it. There doesn’t seem to be clarity within the justice delivery system or direction in terms of what they should do. Let’s not put HIV in the law—it is just a condition. How is it different from other conditions like TB? And it really is not practical. It would be very difficult to prove HIV as an aggravating offense. You would have to prove transmission at the time, which in our country could have been two or three or four years before the case goes to court.
Was the perpetrator HIV positive at that time? Was the victim HIV negative at that time? Reducing HIV to have consequences in the law as an aggravating circumstance doesn’t have much utility. How do you ensure that you protect the rights of all involved and not add to stigma? Criminalization would just compromise the efforts that have already been made, and people would not test for HIV.
Instead of focusing on the law, efforts should focus on the after care treatment that people receive for example after rape, or gender based violence or during HIV testing and counseling.
We need assistance to understand how we can deal with HIV in a lot of other ways rather than using the law. As a country we haven’t quite had the conversations, and the legal sector and parliamentarians need help to really look at the issues.
I am a lawyer and activist in Swaziland at the moment. When you start engaging in these issues it initially starts as something objective—issues in the research or issues for clients. But in reality, as soon as you lose friends or as soon as you go for your own test, it brings it home closer. Then your clients become not just faces but part and parcel of your life.
Working with HIV issues has challenged individuals in organizations to reflect on their own values. HIV raises difficult issues - it’s like King Mswati’s saying: HIV is everybody’s business.”
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.