Article written by Blake Liam Hamilton and Wayde Grant Jacobs, Candidate Attorney’s, checked and released by Chantelle Gladwin-Wood, Partner at Schindler Attorneys
24 May 2021
The Human Immunodeficiency Virus (“HIV”) is a virus that targets the body’s immune system and, if not treated properly, can lead to Acquired Immunodeficiency Syndrome (“AIDS”). Although there is no effective cure for HIV at this time, it can be managed, and people infected may live longer and better lives in the event of good medical treatment being administered. This article discusses the potential criminal liability which may ensue in the context of HIV infections.
Burden of Proof for Criminal Conviction
Snyman describes criminal law as follows:
“conduct which is legally forbidden, which may, in principle, be prosecuted only by the state, and which always results in the imposition of punishment.”
Criminal law is used as a social tool to urge people to desist from acting in ways that are harmful to society’s interests. In South Africa, like in other adversarial judicial systems, the level of proof necessary to support a criminal conviction is proof beyond a reasonable doubt. The general elements for criminal liability under the common law are conduct, unlawfulness, causation, criminal capacity and fault. These elements are discussed in detail hereunder.
Two categories of criminal conduct are distinguished, namely; commissions and omissions in relation to a specific activity. A commission necessitates positive action, whereas an omission necessitates inaction. In the context of this article, an example of a commission will be when a person wilfully injects someone with HIV positive blood. The non-disclosure of one’s HIV status prior to engaging in unprotected sex may serve as an example of conduct in the form of an omission.
Conduct which complies with the definitional elements of a crime, is not necessarily unlawful if it can be justified in law. For example, the definitional elements of murder are the intentional killing of another human being. However, a person cannot be found guilty of murder if he/she kills somebody in self-defence as their conduct will be justified and thus not unlawful. It is very difficult, however, to contemplate a scenario in which infecting another person with HIV intentionally (or perhaps even negligently) would be considered justifiable in law.
Certain crimes require that the accused’s actions result in a certain harmful outcome; for example, in the case of murder, the accused’s actions must have resulted in the victim’s death. This element is extremely difficult to prove in an HIV infection context as proof is required that the accused’s conduct infected the complainant with HIV. Proof of causality necessitates proof that the accused was HIV positive at the time the conduct was performed; however, without direct evidence that the accused was HIV positive at the time of infection, this might be difficult to establish.
In addition to demonstrating that the victim received HIV from the accused and was thus HIV negative at the time of the crime, it is also necessary to show that the victim contracted HIV from the accused and not from another act.
In S v Nyalungu 2005 JOL 13254 T, an HIV-positive accused was, in addition to being convicted on a charge of rape, convicted of attempted murder for raping the complainant while knowing full well that he was HIV-positive. This case thus serves as precedents that perpetrators can be prosecuted for wilfully transmitting HIV.
Criminal liability refers to the accused’s ability to appreciate the wrongfulness of his or her actions/omissions, whilst continuing to act despite knowing and acknowledging their wrongdoings. In the context of HIV, criminal liability can be established if an accused intentionally distributes HIV and engages in any form of activity while knowing that his or her actions may cause the other person to get infected, and yet continues to engage in such conduct/behaviour.
South African criminal law distinguishes between two forms of fault: intention and negligence. As a form of fault, negligence is an attitude or conduct by a person which reflects carelessness, thoughtlessness, or imprudence because by giving insufficient attention to his/her actions he/she fails to adhere to the standard of care legally required or expected of him/her.
In a legal sense, intention is defined as the desire to commit the act or cause the outcome specified in the definitional elements of the crime, whilst being aware of the conditions that make such an act or outcome unlawful. Dolus directus (direct intention), dolus indirectus (indirect intention), and dolus eventualis (legal or constructive intention) are all examples of intention. In the context of the transmission of HIV to a sexual partner, dolus directus is present in instances where the HIV positive partner has sexual intercourse with someone with the direct intention of transmitting the virus. In other words, the perpetrators aim is to expressly infect the other person and he/she directs his/her will towards achieving that result. In the case of dolus indirectus, transmitting HIV is not the perpetrators goal, however, the perpetrator realises and understands that if he/she wishes to achieve his/her goal, the transmission of HIV will materialise and he/she nevertheless continues to commit the act. In the case of dolus eventualis, this form of intention requires that the perpetrator should have foreseen the possibility of transmitting HIV and he/she reconciles himself/herself to that possibility. The perpetrator does not directly intend to transmit HIV, however, he/she should foresee the possibility that sexual intercourse could result in the virus been transmitted and nevertheless reconciles him/herself to that possibility.
In relation to wilfully transmitting HIV, the writers conclude that perpetrators can indeed be prosecuted in the event of proving the aforesaid elements. For example, on an attempted murder charge, it will suffice to prove dolus eventualis if the accused was aware of his or her HIV positive status, was aware that HIV may spread through the risky behavior in which he or she participated in, and was aware that the HIV infection may result in death. Convictions based on attempted murder will require proof that the perpetrator had knowledge of his or her HIV status and intent in either of the above forms will suffice.
Creating awareness that people may be held criminally responsible for wilfully transmitting diseases.
 Snyman, C. (2014). Criminal law (6th ed.). LexisNexis.
 Burchell Principles of criminal law (2006) 545; Snyman Criminal law (2008) 159.
 S v Ndlovu 1984 ZASCA 84: 1984 3 (SA)