The 33-year-old defendant pled guilty and was sentenced to 10 years’ imprisonment by a First Grade Magistrate for defilement after luring a nine-year old girl to his house and raping her. Subsequent medical examinations revealed that the defendant was HIV-positive, as well as injuries and other evidence of the crime on the victim, who did not contract HIV. The State appealed the sentence, arguing that it was insufficient due to the nature of the crime. The High Court agreed, citing 2013 precedent recommending that 14 years’ imprisonment should be the starting point for defilement sentences. However, the High Court noted the increase of defilement cases in Malawi – 2,155 convictions for defilement by July 2020 – indicated that 14 years was an insufficient deterrent. Instead, the High Court recommended that 20 years be the minimum sentence for defilement, noting the recent trend of High Court judges increasing such sentences similarly. In reviewing the defendant’s sentence, the Court considered numerous factors, including that: i) defilement cases against young girls had been on the rise in recent years in Malawi, which justified harsher sentences to protect young girls; ii) statutory rape of a girl under 16 is a serious offence; and iii) the defendant was HIV-positive and could have infected the victim. Ultimately, the High Court ordered that the defendant’s 10-year sentence be increased to 40 years’ imprisonment.
Women and Justice: Keywords
Domestic Case Law
Government of the Republic of Namibia v. LM and Others Supreme Court of Namibia (2014)
In 2014, the Supreme Court of Namibia (“Supreme Court”) affirmed the High Court of Namibia’s (“High Court”) decision in LM and Others v. Government of the Republic of Namibia that sterilization procedures require informed consent. The three respondents sued the Namibian government, alleging that doctors at state hospitals forcibly sterilized them without their consent in violation of their constitutional rights. They claimed that the forced sterilizations left them unable to bear children, ruined their marriage prospects, constituted discrimination against them based on their HIV status, and caused ongoing pain and suffering. The defendants argued that the plaintiffs’ claims lacked merit because they consented to the procedures. The court found that the alleged “consent” was deficient because the defendants failed to prove that they adequately informed the plaintiffs of the consequences of sterilization, or that the plaintiffs clearly and knowingly consented to the procedures before they went into labor. However, the Court found no evidence that the complainants were sterilized because of their HIV status and dismissed that claim. Emphasizing the serious personal nature of the decision, the Supreme Court stated that the decision to be sterilized “must be made with informed consent, as opposed to merely written consent” (¶ 3). The Supreme Court stated that the choice to undergo a sterilization procedure must lie solely with the patient noting that “there can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilisation procedure.” (¶ 106). The Supreme Court also denounced the practice of obtaining “consent” for sterilization during labor noting that patients may not fully appreciate the consequences of giving their consent when experiencing the immense pain involved in labour. The Supreme Court also agreed with the lower court that plaintiff-respondents did not provide any evidence that they were sterilized because of their HIV status.
Midwa v. Midwa Court of Appeal of Kenya at Nairobi (2000)
A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.
Chepkwony v. Republic High Court of Kenya at Nakuru (2006)
The appellant was convicted of defilement for having sexual intercourse with the complainant, who was 12 years old at the time. The trial court sentenced him to life imprisonment. He appealed, arguing that the prosecution did not satisfy its burden of proofs, that there was no evidence of violent force, that the complainant was his girlfriend, and that she consented. The prosecution presented evidence of the complainant's physical injuries and the appellant's HIV-positive status. The Court dismissed the appeal because sex with any girl younger than 16 years old is unlawful regardless of consent, and the appellant had not raised the defense that he had a reasonable belief that the girl was above the age of consent. The Court rejected appellant's plea for special consideration because of his alleged HIV status. Instead, the Court cited the appellant's decision to expose a 12-year-old child to HIV/AIDS in its decision to uphold the life sentence.
Makuto v. State Court of Appeal for Botswana at Lobatse (2000)
The appellant appealed his conviction for rape, arguing that the Penal Code sections dealing with rape are discriminatory because they provide increased penalties for a person convicted of rape if they are found to be HIV-positive. The Court held that the relevant provisions of the Penal Code apply when the convicted person was HIV-positive at the time he committed the rape and that it is therefore a reasonable provision in order to combat the spread of HIV/AIDS.
Legislation
The plan outlines the materialization of the National Plan for the Advancement of Women (Plano Nacional para o Avanço da Mulher) by mapping out its objectives, finances, and progress evaluations given specific deadlines. It focuses on expanding services available to victims of domestic, sexual, physical, and psychological violence; improving institutions to educate the public on gender-based violence; implementing advocacy strategies to prevent and combat violence against women; and establishing multi-sector mechanisms to intervene in violent situations in which women may find themselves. For example, as women are 57% of all HIV-positive people in Mozambique, the plan provides for an STI, including HIV, prophylaxis service for victims of sexual violence. Each sector is in charge of managing its own budget in accordance with its objectives, but the Mozambican government and the Economic and Social Plan (Plano Económico e Social) are expected to be driving forces in attracting more partners and resources for the plan. The timeline is set for five years, with the Monitoring and Evaluation (Monitoria e Avaliação) creating conditions, such as annual check-ins, and using the Report on the Economic and Social Plan (Balanço do Plano Económico e Social) to ensure that each division maintains consistency in their actions.
O plano esboça a materialização do Plano Nacional para o Avanço da Mulher ao mapear os seus objetivos, finanças, e avaliações de progresso em prazos específicos. Ele foca em expandir os serviços disponíveis para as vítimas de violência doméstica, sexual, física, e psicológica; melhorando as instituições para educar o público sobre violência de gênero; implementando estratégias legais para prevenir e combater violência contra mulheres; e estabelecendo mecanismos multissetoriais para intervir em situações de violência em que as mulheres se encontrem. Por exemplo, como as mulheres são 57% das pessoas HIV-positivas em Moçambique, o plano fornece serviço de profilaxia para ISTs, incluindo HIV, para vítimas de violência sexual. Cada setor está responsável por administrar o seu próprio orçamento de acordo com os seus objetivos, mas é esperado que o governo Moçambicano e o Plano Econômico e Social sejam forças motrizes na atração de mais parceiros e recursos para o plano. O cronograma é de cinco anos, com a Monitoria e Avaliação criando condições, como check-ins anuais, e usando o Balanço do Plano Ecônomico e Social para garantir que cada divisão mantenha consistência em suas ações.
The President approved the creation of the National Commission of Audit and Prevention of Deaths of Mothers, Newborns and Infants in March 2012. This commission was established to contribute to the reduction of maternal and infant mortality by investigating maternal death, defining appropriate evidence-based interventions and recommending corrective actions. The priorities set out by the commission are to: 1) increase universal access to reproductive health services, namely family planning, prenatal care, and delivery by qualified personnel, and 2) prevention of sexually transmitted infections, including HIV/AIDS.
O Presidente aprovou a criação da Comissão Nacional de Prevenção e Auditoria de Mortes Maternas e Neonatais em Março de 2012. Essa comissão foi estabelecida para contribuir com a redução de mortalidade maternal e infantil ao investigar a morte maternal, definindo intervenções apropriadas baseadas em evidências e recomendando ações corretivas. As prioridades estabelecidas pela comissão são para: 1) aumentar o acesso universal a serviços básicos de saúde reprodutiva, nomeadamente planejamento familiar, assistência pré-natal, e parto realizado por pessoa qualificada, e 2) prevenir a transmissão de doenças sexualmente infecciosas, incluindo HIV/AIDS.
HIV Control of the Disease and Related Issues (Amending Title 33) (2010)
The Act regulates sexually transmitted diseases including HIV, provides information for treatment of HIV, and provides punishment for violations. §18.3 of the Act provides that the Ministry of Health and Social Welfare, the Ministry of Education, and the Ministry of Youth and Sports shall provide education on the prevention and control of HIV. §18.4-18.5 provide that educating the public regarding HIV and AIDS is part of the national response, and the government shall train all relevant personnel. While §18.7 provides that all employees shall receive the HIV training regarding the prevention and control of HIV and AIDS. Several portions of the act speak to the rights of women and girls specifically. §18.9(a) of the Act notes that when providing HIV and AIDS service to women and girls differences in sex and gender should be considered. §18.9(b) directs the government agencies, when implementing the strategies, policies and programs to address the following issues: protection of the equality of women in private and public life, to address their rights to refuse sex and to access reproductive services independently, to address men’s equal responsibilities in sexual and reproductive health, to increase educational, economic, and employment opportunities to women, to reduce inequalities in laws regarding marital issues, and to protect women’s rights in religious contexts. §18.9(c) covers pregnant women with HIV and grants them the right to marry. The government shall provide them with consultation and information regarding future pregnancy decisions and the protection of future children from HIV. Section 18.9(d) requires the government to implement national education and training to health care providers to reduce HIV infection caused by sexual assault, protect the confidentiality of the HIV test result, report the sexual violence, and assist the investigation of such violence, and to develop and implement education and training for security personnel and prosecuting authorities in conducting investigations and prosecutions about the sexual violence. §18.27 provides that willful transmission of HIV by an infected person who knows his or her HIV test constitutes first degree felony. §18.28 prohibits discrimination on the basis of HIV status.
Reports
This report by the Eurasian Coalition on Male Health (ECOM.ngo) discusses the status and treatment of LGBTQ people in Georgia, specifically gay men, other men who have sex with men (MSM), and trans people. It explains existing legal protections for LGBTQ people, societal attitudes, human rights violations, and recommendations for future progress. (PDF is in English. The External Link offers Russian, English, and Estonian.)