Vol. 403, No. 19669, 15 January 1999
GENERAL NOTICE
Notice 4 of 1999
SOUTH AFRICAN LAW COMMISSION
DISCUSSION PAPER ON ASPECTS OF THE LAW RELATING
TO AIDS:
THE NEED FOR A STATUTORY OFFENCE AIMED AT HARMFUL HIV-RELATED BEHAVIOUR
The South African Law Commission has released a discussion paper on the need for a statutory offense aimed at harmful HIV-related behaviour for general information and comment. The Commission has been assisted in this task by a project committee representative of divergent interests under the leadership of Mr Justice Edwin Cameron.
The Commission in 1995 in its Working Paper 58 inter alia considered the role of the State in respect of HIV/AIDS. In this context it investigated the desirability of the application of criminal law measures against the spread of the disease. The Commission at the time came to the preliminary conclusion that the criminal law is not pre-eminently the means by which to combat the spread of HIV, and was therefore not in favour of the creation of a statutory offense aimed specifically at HIV-related harmful behaviour. The main reason given for this was that conduct by persons with HIV which merits punishment remains punishable under the existing common law crimes.
Recently however, prominent reports of incidences of the deliberate transmission of HIV country wide resulted in public calls for the deliberate transmission of HIV to be made the subject of criminal sanction, and for some measures to alleviate the plight of women who fall prey to the deliverate spread of HIV. Various political parties during the past 18 months submitted that deliberate transmission of HIV should be the subject of criminal sanction and the Commission was formally approached by the Justice Portfolio Committee to investigate the need for legislation with regard to the criminalisation of acts by persons with HIV/AIDS who deliberately or negligently infect others; and the compulsory HIV testing of sexual offenders. The Commission deals incrementally with these two issues. The current discussion paper addresses the issue of harmful behaviour by persons with HIV/AIDS, the administrative and criminal law measures available to address such behaviour, and the need for statutory intervention. A subsequent paper will deal with the question of HIV testing of sexual offenders and persons accused of having committed sexual offences.
In the current discussion paper the Commission on a preliminary basis confirms its 1995 premise that the criminal law is not pre-eminently the means by which to combat the spread of HIV: The AIDS epidemic is first and foremost a public health issue and it is internationally accepted that non-coercive measures are the most successful means through which public health authorities can reduce the spread of the disease. However, the Commission also accepts that there are individuals who, through their irresponsible and unacceptable behaviour, deliberately place others at risk of HIV infection. Where HlV-related behaviour results in harm to others (i.e. exposure to or transmission of HIV), public health measures in themselves are insufficient and the criminal law undoubtedly has a role to play in protecting the community and punishing those who transgress. The Commission is of the preliminary opinion that this limited role is not necessarily incompatible with any public health strategy against the disease. Just as other individuals in society are held responsible for behaviour outside the criminal law's established parameters of acceptable behaviour, persons with HIV who knowingly or recklessly conduct themselves in ways that harm others must be held accountable. In this sense the criminal law must obviously provide a measure of protection in the form of deterrence and can also reflect society's abhorrence of such behaviour.
The question arises what route should be taken in realising this role of the criminal law. Two possibilities exist: Applying the existing common law crimes or creating an HlV-specific statutory offense.. The Discussion Paper comprehensively sets out the issues regarding the statutory offense. The Commission emphasises that the lack of prosecutions under the common law crimes complicates the issue and contributes to the current lack of clarity as regards the viability of utilising the common law. It also draws attention to certain dangers in enacting a new offense which should be carefully weighed against the benefit to be derived from legislative intervention.
The Commission indicates that it is not in a position at this stage to come to any firm conclusion on the need for the creation of a statutory offense. Draft legislation has therefore not been included in the Discussion Paper. The Commission instead includes examples of different legislative approaches derived from existing or proposed legislation of comparable foreign legal systems. In order to facilitate a conclusion on the issues in question, the Commission invites comment on a range of questions highlighting the crucial issues to be debated. These include questions regarding the possible prosecutorial difficulties in applying the common law crimes; the counter-productive effect the creation of a new offense may have on public health efforts in curbing the spread of HIV, the viability of utilising public health measures as an alternative to taking recourse to the criminal law; as well as specific questions relating to the formulation of a statutory offense should it prove to be indicated.
The issues in question need to be debated thoroughly and all parties who feel that they have an interest in this matter or may be affected by the debate are invited to comment on the questions posed.
Written comments or suggestions should reach the Commission by 28 February 1999 at the address given below. The discussion paper is available on request and free of charge.
The Commission's offices are on the 12th Floor, Sanlam Centre, corner of Pretorius and Schoeman Streets, Pretoria. The telephone number is (012) 322-6440 (requests for the discussion paper: Mr Jacob Kabini); the fax number is (012) 320-0936; and the postal address is Private Bag X668, Pretoria, 0001; E-mail: lawcom@salawcom.org.za. The document is also available n the Internet at www.law.wits.ac.za/salc/salc.html.