A human rights-based approach to the criminalization of HIV exposure

SE.L (Female) v. The Republic, (Criminal Case No. 36 of 2016) [2016] MWHC 656 (19 January 2016)

E.L., a 26 year old mother of four living with HIV, was charged and convicted in the lower court under Section 192 of the Malawian Penal Code (Code) for unlawfully (negligently) engaging in an act likely to spread a disease dangerous to life. The prosecution argued that the appellant “unlawfully, negligently and knowingly” breastfed the complainant’s baby, who was left in her care. At the time of the incident, E.L. was on Anti Retro Treatment (ART).

At trial, the appellant pleaded guilty and was sentenced to nine months imprisonment with hard labor. However, E.L. subsequently appealed before the High Court of Malawi against her conviction and/or sentence on two grounds: that Section 192 of the Code is unconstitutional because it is vague and overbroad, and that the conviction was ill-founded because the charge sheet was unclear, and the prosecution did not prove, beyond a reasonable doubt, the elements of a valid offense under the relevant provision.  

The Court briefly considered the appellant’s rights to dignity (Section 19) and privacy (Section 21) under the Constitution in light of the appellant’s HIV and treatment status being introduced as evidence in court. The Court clarified that in obtaining such information and admitting it into evidence, the police and courts need to take particular care to protect the rights of people living with HIV (PLHIV).

The Court stressed that the Malawian legal system should ensure that criminal cases alleging HIV transmission be consistent with Malawi’s international human rights obligations.

Furthermore, the High Court emphasized not only the best interests of the child, but also the impact of custodial sentences on women with children. Specifically, the High Court stated that “incarcerating a woman with her child should always be the last resort for any court…”

In conclusion, the High Court declared that the “proceedings in the lower court had procedural irregularities including blatant bias”, which led to a “grossly excessive” sentence and ruled that the appellant’s right to a fair trial was compromised. On the basis of constitutional rights and fundamental principles of criminal law, the Court declared the conviction to be wrong in law and thus a nullity, resulting in the appellant’s immediate release.

One key aspect of the case concerns the deleterious impact of prejudice against PLHIV in the adjudication of their cases and the right to a fair trial. Furthermore, the ruling underscores the importance of protecting the rights to dignity and privacy of PLHIV. At a procedural level, it is significant that the High Court passed an anonymity order to protect the parties in this case from any additional non-consensual exposure of their health status and unwanted public attention. Confronting stigmatization of PLHIV is critical towards protecting the human right to health, particularly as pertains to the accessibility component of this right. A 2017 UNAIDS report is particularly instructive in this context.

The High Court in this case clearly rejects the overly broad application of criminal law to HIV non-disclosure, exposure and transmission. The judgment provides essential guidance on the limits of the application of criminal law to cases pertaining to HIV and emphasizes the need to ground judicial analysis in scientific evidence and ensure clear conformity with the human rights framework. This rights-based approach to assess criminal law applied against PLHIV is particularly significant given the current global context of widespread criminalization of the nondisclosure, exposure and transmission of HIV. The Court’s perspective is explicitly aligned with the UN position that broad criminalization of HIV exposure, and transmission is contrary to internationally accepted public health recommendations and human rights principles.

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