The Challenges of HIV/AIDS Criminal Legislation in Botswana

In an attempt to halt the spread of the HIV epidemic, the Government of Botswana amended in 1998 the country’s criminal code to provide for stiffer penalties for those charged and convicted of the offence of rape. In particular, there was to be compulsory HIV testing of perpetrators and much stiffer sentences for those who tested positive to the HIV virus. In this paper, I argue that the amendment not only vitiates the right to voluntarily submit to an HIV test, it invades the right to privacy and leads to unwarranted disclosure of confidential information. In addition, I contend that the punitive criminal sentences that follow a positive HIV test are not an appropriate way of preventing transmission as these are not likely to encourage people to voluntarily test for HIV. Punitive sanctions are only justified where it can be shown that a person acted intentionally to transmit the disease.