Do not victimise suspects with HIV, says judge

A High Court judge has criticised the practice in the criminal justice system of slapping aggravated defilement and rape charges against suspects on account that they are infected with the HIV/Aids.

Justice Margaret Mutonyi, a judge attached to the Criminal Division of the High Court, reasons that this practice is against the Constitution. She said the affected people also have conjugal rights.

“People with HIV are also human beings and they have the right to fall in love, but some of them just find themselves doing it with children below 18 years and this shouldn’t be a reason for them to be charged with aggravated defilement or rape,” Justice Mutonyi reasoned on Wednesday during a high-level meeting on removal of barriers in accessing HIV, TB and malaria services in criminal justice held in Kampala.

Speaking at the same event, Justice Vincent Wagona supported Justice Mutonyi’s view. He said being HIV positive is an aggravating factor in some offenses, which should not form part of the elements for sexual offences.

“I think the focus should be on the reasons why someone committed an offence rather than on their status of being HIV positive,” Justice Wagona said.

Legally

Under the Penal Code Act, one is charged with aggravated rape or defilement when the sexual offender is living with HIV.

Justice Mutonyi also hit out at police medical officers whom she said they rampantly falsify HIV results for their own selfish reasons. 

“I fully support screening of suspects in all offences for Tuberculosis, HIV and Malaria but medical officers should desist from falsification of results. I have always encountered situations where a suspect was charged with aggravated defilement or rape on account that he has HIV but upon thorough medical checkup, he was found negative,” Justice Mutonyi said.

The Director of Public Prosecutions (DPP), Ms Jane Frances Abodo, said since the project to fight AIDS, Tuberculosis and Malaria in the criminal justice system commenced in 2021, a total of 360 officers from the Judiciary, police, prisons and probation have been sensitised on the impact of the diseases in the criminal justice system.

Ms Abodo applauded Global Fund for financing the project, saying it has greatly improved health rights of the suspects.

The project coordinator, Ms Proscovia Ayebare, said they have since established consented screening of suspects in 16 police stations within the Kampala Metropolitan area.