Crime is not having HIV, but giving it to someone else

Published Apr 2, 2012



Siphiwe Maloyi* and his wife, Vuyo* had been married for only a short while when he filed for divorce after his wife revealed that she was HIV-positive – something she had known for years.

Siphiwe alleged his wife concealed her status until after they were married.

Vuyo had previously dated a famous local singer who died of an Aids-related illness, and discovered her own HIV status shortly after his death. Now the couple is preparing for a messy divorce, and if he felt he wanted to, Siphiwe could criminally charge the woman he loved.

Siphiwe chose not to disclose his status to The Star, but said his marriage to Vuyo had changed his life forever. He had also not decided if criminal prosecution was the right way to deal with an already terrible situation.

The couple’s story is tragic, but the criminalisation of HIV transmission has been a topic of major debate in SA since 2001.

DA leader Helen Zille revived the debate last year when she called for a more monogamous sexual culture.

“It is fair to require everyone to know their status, and to avoid situations that involve the direct exchange of bodily fluids with others…

“While this precaution applies to everyone, people who are HIV-positive have a particular duty to disclose their status in situations where others could be at risk. No one can be assumed to have had consensual sex in a situation of non-disclosure,” Zille said last November.

According to current legislation, those who deliberately transmit the virus are liable to be charged with murder, assault, assault with the intent to do grievous bodily harm, rape and indecent assault. If the victim dies as a result of the transmission, family members may also sue the person responsible for the infection for negligent conduct.

However, in a SA Law Reform Commission report, it was admitted that such crimes were difficult to prosecute because of the virus’s characteristics. A long incubation period and invisibility means that finding proof that the transmission was intentional can be difficult, if not impossible.

* Not their real names

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