The Court examined the following issues: (1) whether the consideration of the HIV status of a person convicted of rape as an aggravating circumstance in sentencing violates Section 15 of the Constitution and (2) whether the presumption that an HIV-positive person convicted of rape has infected the victim is unjust.
The Court noted that Section 15 of the Constitution prohibits discrimination on the grounds of “race, tribe, place of origin, political opinions, colour or creed.” It does not specifically enumerate HIV status as a prohibited ground of discrimination. However, the framers of the Constitution did not intend the listed grounds to be exhaustive. The Court subsequently determined that discrimination based on HIV status falls within the scope of the Section 15. Therefore, the imposition of a harsher penalty because of an offender’s HIV-positive status amounts to discrimination. Section 15(4)(e) of the Constitution allows for justifiable limitations on a person’s right to nondiscrimination. However, the Court found that the heavier punishment imposed on HIV-positive offenders was justified. Section 142(2)(b) is intended to deter HIV-positive people from committing rape, and to limit the spread of the disease.
The Court held that the limitation on an offender’s right to nondiscrimination is justified only when the offender knew that he was HIV positive when he committed the rape. Section 142(2) should thus apply only where the Court is satisfied that the offender was HIV positive at the time of the rape, and that he knew his health status. The Court determined that Appellant was tested only after his conviction. Consequently, the Court was not satisfied that Appellant was or knew he was HIV positive when he committed the crime.
The Court held that the HIV-positive status of a person convicted of rape does not constitute an aggravating circumstance in assessing the length of a sentence.
The Court concluded that the discriminatory treatment under Section 142(2) does not violate Section 15 of the Constitution, provided the penal provision is applied in a manner that achieves its legislative objectives, namely to deter HIV-positive persons from committing rape, and to limit the spread of the disease. In the present case, the Court was unable to determine whether the offender was or knew he was HIV positive at the time he committed the rape. Consequently, the imposition of a harsher penalty is not justified, as it would not serve the objectives of the penal provision. The state cannot regard the offender’s present HIV status as an aggravating circumstance in sentencing, as mandated by Section 142(2). The Court replaced Appellant’s 16 year sentence with a 10-year sentence.