sexual health and human rights in the african region - The ICHRP

minor who has not attained the statutory age of consent and laws, mostly
customary and religious laws that recognize the capacity of a person below that
statutory age to marry and by implication partake of marital sex.
[64] South Africa provides important human rights benchmarks in rendering ages of
consent responsive to the eradication of discrimination based on age, sex and
sexual orientation. The decision of the Constitutional Court in National Coalition
for Gay and Lesbian Equality and Others v Minister of Justice and Others, 442 is the
benchmark on sexual orientation generally. The decision of the South African
Supreme Court of Appeal in Geldenhuys v The State 2008 ZACC 21 443 , and the reform
of ages of consent by the Criminal Law (Sexual Offences and Related Matters)
Amendment Act No 32 of 2007 are useful benchmarks for the African region in
the specific area of reforming ages of consent for young persons.
[65] Regulating sexual activities between persons that are closely related is
particularly important where the relationship gives rise to opportunities for
sexually abusing a person who by reason of young age is in a position of
dependency and is unable to protect himself or herself from the other party. In
this way, incest laws reinforce other laws that protect the young and vulnerably
for forced or exploitative sexual access. However, in respect of persons that are
otherwise able to decide on whether to engage in sexual activities, including
second degree relatives in the category of prohibited relationships as does the
Zimbabwean Criminal Law Reform Act of 2004 says more about protecting the
institution of custom and tradition than protecting the vulnerable.
[66] While several African jurisdictions have in recent years been persuaded to adopt
laws that specifically criminalize HIV transmission, the jurisdictions already had
in place laws that could be used for the same purpose notwithstanding they were
not HIV-specific. There is no evidence that the HIV-specific laws are being
actively enforced or that they are making a difference by way of providing
protection that would otherwise be unavailable under the ordinary laws that
impose criminal and civil liability for intentional, reckless or negligent conduct
that injures another person and causes them suffering and loss.
[67] HIV-specific laws that criminalize HIV transmission are generally drafted very
broadly in terms of conduct that constitutes the offence as to raise questions of
the constitutional validity of many such laws.
[68] African courts treat HIV as an aggravating factor during sentencing.
442 National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 1999 (1) SA 6
(Constitutional Court of South Africa).
443 Geldenhuys v The State 2008 ZACC 21 (Supreme Court of Appeal of South Africa).
136