Constitutionality of the offence of deliberately transmitting HIV: Case Note on the Case of S v Ranchi HH 515-17

Abstract

The heading for this offence is “Deliberate transmission of HIV”. This is somewhat misleading. Although the offence can be committed if the accused actually infects the complainant,it can also be committed without proof of actual infection of the complainant by the accused. Where the accused realizes that there is a real risk that he or she may be infected and he or she has sexual intercourse with another realising that there was a real risk or possibility of infection, he or she is guilty of the offence. This formulation does not require actual proof of infection.Where the State is alleging that the accused actually infected the complainant, it would have to establish that the complainant did not already have HIV before the accused allegedly infected him or her. If, for instance, the accused rapes and infects a young girl who was a virgin, it will be clear that it was the accused who infected her unless, of course, her mother infected her when she gave birth to her.But with adults it may be difficult to establish which of the two partners was infected first as this cannot be determined by medical evidence.