Innocent Ruwende
Senior Court Reporter
CASES of deliberate transmission of HIV are difficult to prove because there is no law that compels testing institutions to reveal or make public the HIV status of patients, a regional magistrate said yesterday.

Regional magistrate, Mr Clever Tsikwa, was speaking while acquitting a 37-year-old man who was accused of deliberately infecting his 20-year-old wife with HIV.
The ruling is a challenge to Section 79 of the Criminal Law (Codification and Reform) Act, which makes willful transmission of HIV illegal. The law says that any person who:
(a) Knowing that he or she is infected with HIV; or
(b) Realising that there is a real risk or possibility that he or she is infected with HIV;
(c) Intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding 20 years.

Mr Tsikwa said the problem with such an offence was that the medical history of an accused person constituted the most important evidence for the State.

He said it was apparent that no evidence was led that prior to December 31 last year when the man is alleged to have had sexual intercourse with his wife for the first time that he was HIV positive and that he was aware of such a status. Mr Tsikwa said no evidence was led that when he had sexual intercourse with the complainant his intention was to infect her with HIV and that he indeed infected her.

He said simply producing HIV results without proof of the accused’s HIV status would not prove the offence.
“Unfortunately, how to gather evidence for the successful prosecution of such cases is yet another problem because there is no law in Zimbabwe which compels testing institutions to reveal or make public patients’ HIV status,” he said.

“In fact, as Professor (Geoffrey) Feltoe stated in the commentary on the criminal code, it is illegal and breach of medical confidentiality for testing institutions to reveal a patient’s HIV status without the patient’s express consent.”

The State alleged that on December 31 last year the complainant stayed with the accused person as his wife. During the time, the State says, they were intimate on several occasions.

Sometime in March this year, the complainant fell sick and requested to be tested for HIV and she tested negative and she was told to return three months later.
In April this year, the complainant was tested for HIV at the New Start Centre at Wilkins Hospital and she tested positive.
She reported the accused to the police alleging that he had deliberately infected her with the virus.