Can I take action if I get infected with HIV?

POLOKWANE – Vulani Arnold Baloyi, from Baloyi VA Attorneys in Polokwane, explained to Review that when you have consensual sex with someone and you find out that you have contracted HIV, you would be required to prove the accused did indeed infect you. With a rape case the rapist would be forced to get tested for HIV, however, in the instance of consensual sex it can be difficult to prove whether the person who infected you knew of their HIV status when they had sexual intercourse with you. According added there is also the challenge to prove that it is indeed the accused who infected the victim and not somebody else.

“If the person who infected you didn’t know they have HIV either, then it can’t be a crime. If you can prove they knowingly gave you HIV you can claim damages, but it then becomes a civil case and not a criminal one,” he said.

To prove that the accused indeed infected you would require you to prove that they got tested and received the results prior to having sexual intercourse with you, but such information is not readily available due to the confidentiality clause that protects a person’s medical records. “Unless there is a case against the accused, there is no way to get the medical records. It is difficult to prove whether someone gave you HIV unless it is a rape case where the accused is obligated to take an HIV test,” he added.

He explained if you are able to prove that a person infected you, you can be compensated for being infected with a disease that you didn’t have, if one looks at the harm you experienced. “You will have to get medical experts to help you prove your case and in the long run, it’ll be more costly to create a case than to keep the affairs out of court,” he said and added because of the stigma around HIV, people are afraid to take legal action or report it because they will be exposing their own status.