The Government is set to withdraw a clause in the Criminal Laws Amendment (Protection of Children and Young Persons) Bill that lists wilful HIV/AIDS transmission to a partner as a criminal offence.
The Bill, which is currently before Parliament, listed HIV/AIDS as one of the sexually transmitted infections (STIs), whose deliberate transmission to a partner is a criminal offence. Others include syphilis, gonorrhoea and herpes, reported The Herald.
The Criminal Laws Amendment Bill also sets out to raise the minimum age of sexual consent from 16 to 18.
The Bill sought to re-criminalise deliberate HIV/AIDS transmission even though the Marriages Act had decriminalised wilful HIV/AIDS transmission.
Justice, Legal and Parliamentary Affairs Minister, Ziyambi Ziyambi, said that prosecution under the Criminal Laws Amendment (Protection of Children and Young Persons) Bill should only apply when deliberate transmission of HIV/AIDS is done in aggravating circumstances such as rape and other sexual offences involving young persons.
Ziyambi made the remarks while contributing to a debate on the Bill in the National Assembly last week. He said:
The way it is couched in the Bill is not correct. The policy direction from the Executive was, that if you sleep with a young person and you have been convicted, it becomes an aggravating factor if you have wilfully transmitted an STI to that particular young person.
The assumption that we are coming from is, that young persons are not sexually active and it is not very difficult to prove once you have been convicted.
Medical reports are there to prove that the young person contracted HIV and STIs and it should be an aggravating factor in sentencing.
We are going to change this so that it does not appear like we have generally reintroduced the clause that we repealed the last time when we brought the Marriages Act.
It is very difficult to prove and worldwide studies have shown that criminalising does not reduce transmission levels.
He added that several discordant couples can stay for years, “the other one not seroconverting”. Said Ziyambi:
So, if we say we are criminalising, we are saying, perchance, if you manage to contract, you are a criminal, but that one who has not contracted and nothing has happened, we say ‘they are okay’; there is discrimination, scientifically it does not mean that if people sleep together, automatically they will have HIV.
So I want to take it to agree that it is a law that is very difficult to implement, hence the reason why the Executive, the last time when we had the Marriages Act, agreed with the submissions from those within the Ministry of Health and Child Care that we need to repeal it.
We now have an assumption that we have a case where somebody has been arrested for sleeping with a young person and medical reports are there that there has been an infection.
Those reports will indicate whether that particular young person was sexually active or not, and there we are saying it becomes an aggravating factor if you have infected that particular young person with STIs and HIV.
Therefore, that particular clause will be amended accordingly and hence we will be bringing those amendments.
The chairperson of the health and childcare portfolio committee, Daniel Molokele, who is also Hwange Central MP (CCC), said:
This bad law was repealed because it is not possible socially and legally to prove who, in a particular relationship, was infected first with HIV.
Over the years, many countries have repealed this bad law and Zimbabwe was one of the last countries to repeal this law.
Women are the ones who have been prosecuted under this law and it has been difficult to prove that they committed a criminal offence because we all know that in this country, women are the ones who have health-seeking behaviour; they are the ones who are willing to do HIV tests.
Most men in this country are scared to do an HIV test. They are less scared of lions and other wild animals than having an HIV test.
I can dare a man in this Parliament to have an HIV test in public and you see the reaction. Most of them will look for the nearest exit door.
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