A rising incidence of rape in Swaziland, coupled with the world's highest level of HIV-infection, is fuelling a national debate on what punishment should be meted out to rapists, especially if the victims of sex crimes become infected with the disease.

"Giving a little girl HIV is like giving her a death sentence," Nonhlanhla Dlamini, director of the Swaziland Action Group Against Abuse (SWAGAA), told IRIN. The group offers medical and legal assistance as well as psychological counselling to victims of abuse, most of whom are women.

Bill stalled

The debate about sex crimes and the high prevalence of HIV/AIDS has stalled passage of the Sexual Offences and Sexual Violence Bill, introduced last year. Originally the bill called for the death sentence for HIV-positive men who infected women they raped while knowing their medical condition, but parliament is now expected to debate the bill later this year.

However, Thembi Nkambule, National Coordinator of the Swaziland National Network of People Living with HIV and AIDS (SWANNEPHA), felt that "being HIV positive is not a criminal offence; we should not criminalise being HIV positive".

Those advocating more severe sentences for offenders who knowingly infect their victims said it was not the medical condition they sought to criminalise, but a violent act that was made worse by an infection that would lead to an incurable disease.

The Constitution enacted last year by King Mswati, the continent's last absolute monarch, provided for capital punishment for HIV-positive rapists, but after objections by human rights groups the penalty was replaced by a life sentence.

A five-year prison term for HIV-positive men and women who infect their sexual partners during consensual sex, dubbed the "condom clause" by one of the bill's consultants, is also included, and is a reflection of the sparse use of safer sex measures in a country where nearly four out of ten sexually active adults are HIV-positive, according to the Ministry of Health and Social Welfare.

Proof onus on prosecution

The proposed legislation places the burden of proof of infection on the prosecution. "When a rape is attended by HIV and AIDS, the prosecution shall prove that the accused either knowingly or negligently or recklessly infected the victim with HIV and AIDS," the bill states.

SWAGAA, which worked closely with the government during the bill's formulation and is widely recognised as placing rape and violence against women on the national agenda, is adamant that infecting a person with HIV/AIDS through rape is the same as murder. "We see more rapes in this country; we see more little girls infected with HIV through rape. They will need medical care for the rest of their lives, and they have received a premature death sentence, because at some point they will develop AIDS and die before their time," Dlamini said.

The argument for stiffer sentences was strengthened last week after an HIV-positive father in the southern Shiselweni region allegedly raped his 14-year-old daughter, and then beat her to try and prevent her from reporting the incident to the police. In reaction, Hlobsile Dlamini, SWAGAA's public relations officer, told the local press the case should be treated as murder.

SWANNEPHA, an umbrella body for support groups for HIV positive people, maintains that having an additional penalty for convicted rapists who are HIV-positive is a form of discrimination.

"We are already having a challenge getting people to know their HIV status," said a counsellor from the organisation. "This bill will have a chilling effect on our attempt to get people to know their status for their own good, so they can seek treatment. The law would be harsh on people who know their HIV status and then go on to infect other people, not just through rape but through negligence, or maybe if a condom bursts."

Fuelling the controversy this week was the sentencing of a 40-year-old man to a 20-year jail term after being convicted of raping an underage girl and possibly infecting her with HIV/AIDS.

Even without the new Sexual Offences Act on the statute books, the courts have been permitted discretionary power to give harsher sentences when HIV-infection takes place. In cases where this has not occurred, SWAGAA and women's rights groups have decried what they considered a light sentence for the convicted HIV-positive rapist.

He can be released early for good behaviour, or as part of a nationwide mercy release that is done at some national anniversaries," said SWAGAA's Dlamini. "Meanwhile, the girl he raped may be dead from AIDS."

Justice Qinisile Mabuza, who presided over the rape case and lamented the belief that HIV/AIDS could be "cured" if an HIV-positive man had sex with a virgin, commented, "The crime of rape has become so prevalent that there is no week where there are not reports of it in the press."

However, the judge said the prosecution had failed to link the victim's HIV-positive status to the rapist and called for legislation to make HIV/AIDS testing mandatory for rape suspects.

While handing down judgment, Justice Mabuza took a moment to wonder what the future held for the HIV-positive girl allegedly infected by the rapist, a question that remains at the forefront of the heated national debate in Swaziland, where HIV/AIDS and violence against women and girls are proving an increasingly deadly combination.