E.L. v. Republic
The Second Grade Magistrate Court in Machinga sentenced the appellant to nine months’ imprisonment for the offence of negligently doing an act likely to spread a dangerous disease contrary to Section 192 of the Penal Code when she breastfed another woman’s infant while under treatment for HIV. The appellant appealed the decision, arguing that i) the baby that was breastfed had a very low likelihood of testing positive for HIV, ii) her guilty plea to the offence during the trial was incorrect and largely due to ignorance of means of transmission of the virus, and iii) the supportive expert affidavits filed with the appeal warned against the overbroad criminalization of HIV transmissions, particularly woman-to-children transmissions. In setting aside the appellant’s sentence, the High Court concluded that the appellant did not have the knowledge requisite to the crime she was convicted of, as she did not believe that breastfeeding would likely spread HIV. The Court held that the overly broad application of criminal law to HIV non-disclosure, exposure, and transmission raised serious human rights concerns, especially since there was no serious risk of transmission. Additionally, the Court found that the appellant’s right to privacy was violated during the trial process by introducing into evidence her HIV status and that a custodial sentence for a misdemeanor was grossly excessive. The Court emphasized that incarcerating a woman with a young child should always be a last resort especially when the offence is a misdemeanor, citing the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders. The Court overturned the defendant’s plea and released her.
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Year
- 2016
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Type
Jurisdiction