Court ruling narrows scope of HIV convictions

A High Court of Malawi ruling which overturned a decision in a lower court which saw an HIV-positive woman convicted of a crime after breastfeeding another woman’s child has huge implications for HIV-positive people living in the country. A GroundUp analysis notes that the twist in the case is that the suspect was on antiretroviral (ARVs) and the virus was therefore no longer detectable in her blood. As a result, she could not realistically transmit HIV to the child. At present, Malawi’s Penal Code contains a section that criminalises the transmission of dangerous diseases, including HIV. Under this law, a person may be convicted of a crime if they do something that is likely to spread or cause HIV infection. The law is so broadly and vaguely framed that it could be read to make it a crime for HIV-positive women to breastfeed children. The suspect ended up pleading guilty to the charge and the court sentenced her to nine months' imprisonment with hard labour. She then decided to appeal her conviction and to challenge the constitutionality of the Penal Code. The High Court found that EL’s right to a fair trial had been infringed and that the lower court had been ‘blatantly biased’. The report notes that some countries, including the US, Canada and India, do have laws that criminalise HIV transmission and punish HIV-positive people for engaging in sexual activity.