Lie about your HIV status to your lover and you could face life in prison under South African law. However, unlike in Germany, you do not have to disclose your status to your partner unless asked.
Lie about your HIV status to your lover and you could face life in prison under South African law. However, unlike in Germany, you do not have to disclose your status to your partner unless asked.
The legalities of not warning your sexual partner that you are HIV positive have been brought to light by a recent high-profile case in Germany where pop star Nadja Benaissa is currently facing criminal charges of grievous bodily harm for infecting a partner when she knew her positive status.
South African legislation does not specify that you must disclose your HIV status to your partner before having sex.
However, the Amendment Act 32 of 2007 makes provision for this as a sexual offence. If a partner inquires about the other’s status and the person lies about being HIV positive, any subsequent sexual act could be argued to have been induced by fraudulent means, says Legal Aid Attorney Alan de Jager.
This qualifies as a lack of consent by one partner which is similar to rape and results in a sentence of between 10 years and life in prison.
“People don’t realise the full consequences of their acts,” says De Jager. Regarding the case underway in Germany, Benaissa has also been charged with attempted bodily harm for allegedly having sex with two other men who were not infected.
“I foresee our legislation going the same way in the future, towards criminalising in some or other way such a scenario,” says De Jager.
Ethically, the issues behind status disclosure are complex. “I can neither condone nor condemn this woman for her choice not to disclose her status,” says Nicole Viljoen, president of the Rhodes’ Student HIV/Aids Resistance Campaign (Sharc).
“It is the responsibility of both sexual partners to ensure that they protect themselves and that means
that the repercussions of the choice of these men not to use protection can in no way be blamed solely
on her,” she says.
“We preach disclosure,” says Nola Elliott, operations manager at the Raphael Centre for HIV counselling and testing. She believes that Benaissa and her lover were both responsible because “both partners must test at the time”.
She elaborates: “He should have encouraged her to test and then he could make a calculated decision to stay or walk away.”
But she says even a partner presenting an HIV certificate is not foolproof. First a strong immune system will show a negative reading in the early stages.
Secondly “someone can easily forge a certificate on a computer.” Elliott believes South Africa should introduce the same laws as Germany but says it would be difficult to determine when the virus was contracted.
“How can you conclusively prove that they didn’t have HIV before?” she asks. “We should preach abstinence but it’s a difficult approach, she says, “Whether you’re in Germany, Korea or Africa, you shouldn’t engage in unprotected sex.”
