AIDS activists say sexual offences bill criminalises victims

Groups representing Swaziland's HIV-positive population are angry at a proposed Sexual Offences and Domestic Violence Act mandating life prison terms for rapists who infect their victims with HIV, claiming that the law will criminalise the victim. "The world over, HIV is not regarded as a sin or an offence. Negative and positive persons must be accorded equal rights, which should be applicable even in a court of law. But what are we criminalising here? Sleeping with someone without his or her consent, in other words rape, or HIV?" said Thembi Nkambule, National coordinator of the Swaziland National Network of People Living with HIV and AIDS (SWANNEPHA), an HIV/AIDS umbrella organisation. The proposed legislation stipulates that "when a rape is attended by HIV and AIDS, the prosecution shall prove that the accused either knowingly or negligently or recklessly infected the victim with HIV and AIDS." SWANNEPHA said in a statement that it did not condone rape, but wished the legislation's punishments were in line with the crime, and its affiliated organisations objected to what they called the criminalisation of HIV positive people, because the rape survivor would have to take an HIV test before a convicted rapist was sentenced. "Who can say that in five years, they won't find a cure for AIDS? This is inappropriate for today. It comes from the time when having HIV was seen as a death sentence. Now, an HIV positive person can live for years with the assistance of ARVs," Nkambule told IRIN. The first draft of the legislation called for a mandatory death sentence for rapists who infected their victims with HIV. Swaziland's new national constitution permits capital punishment, but objections from human rights groups reduced the penalty to a life sentence. The proposed law would also impose a five-year prison term on HIV-positive persons who engaged in consensual sex but infected their partner with HIV. HIV and AIDS support groups also objected to what they considered the impracticality of the law in a country where over 40 percent of sexually active adults were HIV positive - the highest in the world. "Other than a child victim, it is not possible to be sure whether the victim is not already HIV positive, unless a recent HIV test had been administered to the person prior to the crime," said Andrew Ginindza, an HIV-positive technician and volunteer worker at SWANNEPHA. The organisation objected to the legislation in a letter to Prime Minister Themba Dlamini, who supported the bill. The proposed legislation also classifies homosexual sex acts as indecent assault and retains criminalisation of homosexuality. No mandatory sentences are prescribed, and punishment is at the discretion of the judge. Swaziland has no gay rights groups to react to the legislation, as homosexuality is outlawed. The Swaziland Action Group Against Abuse and child welfare NGOs supported the bill, which defines a paedophile as someone convicted three times of sexual acts with children, and calls for the country's first register of convicted child abusers, to be compiled by the Ministry of Health and Social Welfare. A person whose name appears in the register may not own, manage, be in the employ of or operate a facility where children who are victims of sexual offences are accommodated. jh/go/he/oa