Political leaders holding executive office (like the President and the nine Premiers) cannot be expected to know everything about every conceivable subject. That is why they employ advisors to assist and advise them. However, sometimes they think they know everything about everything (always a dangerous thing for a politician to think, as we know from experience with former President Thabo Mbeki) and sometimes their advisors fail to do their job properly.
Thus President Jacob Zuma, apparently ill served by his legal advisors, have made some serious blunders over the past two years. First he relied on an obviously unconstitutional provision to try and extend the term of office of a great Chief Justice, then he appointed a retired Constitutional Court judge to lead an inquiry into Bheki Cele’s fitness to hold office when he was legally required to appoint a judge from the High Court or the Supreme Court of Appeal.
It is unclear whether Premier Helen Zille relied on advisors before making truly astonishing statements about the criminalisation of sex or whether she came up with her hare-brained scheme all by herself.
Zille said earlier this week that she was so worried about the spread of HIV and its cost to the government that she wants men who have multiple sexual partners and refuse to use condoms to be charged with attempted murder. Zille told a wellness summit hosted by the provincial health department in Newlands on Tuesday that it was time the government shifted its exclusive focus from treating diseases to preventing them and promoting wellness.
If she was quoted correctly, her statement represents a frontal attack on the Rule of Law and the basic principles of criminal law applicable in any democratic society.
If she said that men who have multiple sexual partners and refused to use condoms should be charged with attempted murder regardless of whether they are HIV positive and regardless of whether they knew that they were HIV positive, she was advocating the criminalisation of conduct that no civilised society based on the Rule of Law and a respect for human rights would criminalise.
A fundamental principle of the criminal law in a country that adheres to the rule of law is that one could only be charged and found guilty of a crime (or attempting to commit a crime) if one could be proven to have had the intention to commit the crime or (in exceptional cases) had the knowledge that his or her actions could have resulted in the commissioning of unlawful action and nevertheless negligently proceeded to act. In South Africa culpable homicide is the unlawful and negligent killing of another. Attempted murder is committed where one inentends to kill somebody else but fails in doing so.
Merely potentially endangering the life of another can never be culpable homicide or attempted murder and one cannot be convicted of attempted culpable homicide. One can only be convicted of attempted murder if it can be proven that one had the intention to kill another but failed to do so. In S v Naidoo the SCA set out the position quite clearly:
What the crimes of murder and culpable homicide have in common is a fatal outcome for a human being. Absent a death, absent the particular crime. What they do not have in common is that absent a death, there may be a conviction of attempted murder but not a conviction of attempted culpable homicide. The reason for the difference lies in the distinction between the two forms of mens rea which are essential elements of the respective crimes of murder and culpable homicide.
The crime of murder cannot be said to have been committed unless the act or omission which caused death was intentionally committed or omitted and death was the desired result, or, if not the desired result, at least actually foreseen as a possible result the risk of occurrence of which the accused recklessly undertook and acquiesced in. In short, dolus in one or other of its manifestations (directus, eventualis, indeterminatus, etc) is the kind of mensrea which must have existed. Where the act or omission is accompanied by such dolus but death does not in fact ensue, it is easy to understand why the accused’s conduct should be visited none the less with penal sanctions. A deliberate attempt to commit the crime of murder cannot be ignored and left unsanctioned simply because the perpetrator has failed to achieve his or her objective.
Where it can be proven that a person intentionally tried to kill another by infecting him or her with the HIV virus (which would be very difficult to prove) a person could be charged with attempted murder. But where someone does not know his or her HIV status and have sex without a condom, it could never lead to a criminal conviction for attempted murder due to the absence of intention. If somebody negligently transmits HIV to another and that person actually dies, the person could theoretically be charged with culpable homicide, but proving the causal link between the sexual act and the death of the person as well as the negligence on the part of the accused would be almost impossible to do.
Given the fact that anti-retrovirals are now widely accessible, a person who responsibly gets tested and take this medicine will in all probability live a long and productive life, which means that it would be almost impossible to prosecute someone for attempted murder as the state would not be able to show the causal link between the sexual act and the death.
In the age of ARVs, deliberately transmitting HIV to another could not be viewed as attempted murder because one’s action would not lead to the death of the other person. Where a person dies of an HIV related illness, the accused charged with his or her murder or with culpable homicide would argue that but for the failure of the deceased to take ARVs death would never have occurred and that there was hence no causal link between the sexual act and the death.
There are good reasons for this. In a constitutional democracy — as opposed to a theocratic state — the criminal law cannot be used to punish individuals merely for not conforming to Judaeo-Christian moral standards regarding sexual behaviour. If one criminalised all unprotected sex with one or several partners, one would be punishing people for something that might never have happened (HIV infection, leading to death) or for something they might not have foreseen at all (as they might not have believed that they were HIV positive at all or might not be HIV positive). One would be punishing people for not behaving in a manner one believes is appropriate — regardless of the consequences or potential consequences.
The criminal law then becomes an oppressive and authoritarian instrument of social control, turning large numbers of ordinary citizens into instant criminals. Where the criminal law punishes behaviour not based on the consequences or potential consequences of said behaviour but for its own sake and without taking into account the guilt of the accused, the Rule of Law is fundamentally undermined.
Perhaps Premier Zille was misquoted or she “misspoke” — as Hillary Clinton famously “misspoke when she said she had to evade sniper fire when she was visiting Bosnia in 1996 as first lady when, in fact, she was greeted by flower-bearing children. Perhaps she meant to say that somebody who has multiple sexual partners and knows that he is HIV positive but nevertheless fails to use a condom and then transmits HIV to a partner who later dies from AIDS related illnesses should be charged with attempted murder.
Even so, this view is quite shockingly misinformed and would have disastrous consequences. It would create an incentive for some men not to get tested for HIV and hence not to take ARVs. Not only would the men then die needlessly but those men would be also far more likely to transmit HIV to their sexual partners. This is because an HIV positive person on ARVs whose viral load becomes undetectable are far less likely of transmitting HIV than one who is not on ARVs and whose viral load is high.
Criminalising sexual behaviour in this way might therefore increase the rate of HIV transmission. It will certainly not decrease it.
Julius Malema is often criticised for being a populist — saying things that are truly idiotic or even dangerous but which he knows would be popular with his constituency. But he is not the only populist politician around. This statement by Premier Zille is a classical populist statement: idiotic and dangerous but quite popular with a certain constituency. She should have known better. And if she did not, she should have known to ask somebody who is a bit more knowledgable than herself to inform her about the legal and medical issues around HIV.