Opinionista Paul Berkowitz 16 November 2011

Helen Zille and the case of the bad law

The leader of the opposition and Premier of Western Cape has copped a lot of flak for her Twitter comments this week. She suggested that men who sleep around and don’t use condoms should be charged with attempted murder. Pretty poor suggestion, I think.

Sex is a funny thing, more funny peculiar than funny ha-ha. Most of the time, anyway. Our obsession with it makes us do crazy things. Some of us have written crawlingly bad poetry in pursuit of it. Some of us believe in deities that prescribe and proscribe just what we can do and with whom. And some of the politicians among us have been driven crazy enough by sex to try to regulate how the rest of us do it.

This week it was the turn of Helen Zille to catch the fever and call for a law making it a crime for men to sleep with multiple partners without condoms. In fact, she wants them charged with attempted murder.

Groovy idea. Anyone found guilty of such a crime is clearly a scumbag and deserves to be removed from society, most law-abiding and morally upright citizens would agree. And maybe some of us are even fantasising about such a man’s degradation and humiliation in a dingy prison cell somewhere, because even law-abiding citizens go a little loopy at the whiff of sex.

Except… there are a lot of problems with the proposal. Let’s assume for the moment that Zille’s comments should be taken at face value, and that she’s publicising what is essentially her opinion because she believes it to be right. (We’ll look later at what other motivations she might have had for saying what she said.)

Firstly, it would be nigh impossible for a court to prove that there was intent to infect on behalf of the man, as certain legal experts have noted. It might result in perverse outcomes: if there is an incentive for men to claim ignorance about their HIV status (and this law would certainly increase that incentive) then fewer men are likely to be tested.

In the event that such a case was brought to the courts, there is a very low probability of a successful conviction. You’d have to at least prove that the accused knew he was HIV-positive at the time that he infected others, and get him to admit this in a court to argue that he acted with intent. Good luck with that one. There’s also the small matter that being infected with the virus isn’t an automatic death sentence.

The acid test of any law proposed or passed is the probability that it will improve the quality of citizens’ lives and their society. There are many ways laws can fail this test. One is that they can be costly and difficult to enforce. Or costly and impossible to enforce. They can be badly designed and badly implemented, creating more problems than they solve. Good intentions, unfortunately, don’t count for much when the law makes society poorer.

This proposed law by Zille fits the definition of bad law. Bad law isn’t defined by its intended outcomes, but by its actual outcomes. Having such a law on the books could only clog up the machinery of the criminal justice system with very little prospect of justice for anyone unfortunate enough to be infected with HIV.

The current alternatives may or may not go far enough to punish someone selfish and negligent enough to infect others, unfortunately. There is, for example, the possibility of charging a person with rape by arguing that they obtained invalid consent to sex by misrepresenting their HIV status. This could be argued under Section 1(3)(c) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act which addresses the issue of ‘consent obtained by fraud’. Such a charge would face similar challenges in court if it were difficult to prove that the HIV-positive person knew their status at the time of act.

Once you start to pick the law apart and put it through its paces, it becomes clear that it’s very difficult to prosecute such an act. There’s no such thing as ”attempted culpable homicide” for example, so you can’t even take the issue of intent off the table and hope to panelbeat some variation of justice into shape.

Of course, justice is not the only appealing factor of Zille’s proposal to our sexed-up little puritanical minds. There’s also the prurient pleasure of punishment and judgement to be had. People who sleep around and don’t care about themselves or others should be made to suffer. I wonder if we are or would be as quick to call for a murder charge to be brought against carriers of extremely drug-resistant (XDR) TB who break out of state hospitals and can, by a similar argument, end up killing a lot of people. Maybe we would, if we were consistent in our approach to justice and the law. But I suspect that crimes that smell of sex spark some judgemental short-circuit in our brain. Zille is not the first politician to use sex to sell things to us. She’s just the first this month.

To be fair to Zille a tweet (or twenty) is not a legal endorsement and an opinion is not a party position. To conflate Zille’s party (the DA) with Zille itself is as unfair as judging the ANC on the basis of stupid ideas broadcast by its individual members. And there are surely other reasons for Zille tweeting what she likes. To whom is her message likely to appeal? To women and to responsible middle-class and aspirational working-class people with conservative social and sexual mores. People who delivered Western Cape to her party in the last two elections, possibly the young professionals of Gauteng. Zille’s views could be more about the branding and marketing of her party than about the laws it would like to pass.

In addition, if we read between the lines of her tweets it could just be that she’s frustrated with all of the money the Western Cape health department has to pay for preventable diseases like Aids and alcohol-related trauma. And her party has already done something about the alcohol problem that smacked of the smothering embrace of the nanny state; it passed laws limiting the sale and consumption of alcohol. It went about this process with  a we-know-what’s-good-for- you attitude and it justified its position (at least in part) with an appeal to the social costs of alcohol abuse. So perhaps linking Zille’s tweets to her party’s position on public healthcare is neither grossly unfair nor a giant leap of logic.

I sympathise with the size of the public health challenges the government faces and the libertarian in me baulks at paying for other people’s wilful, careless and selfish choices. But the same libertarian in me baulks at the passing of laws that are impractical and burdensome on the state. My inner libertarian is particularly unimpressed with proposals that look like cynical populist ploys to generate support, rather than realistic and workable solutions to complex problems. I’m particularly unimpressed times infinity when just 10 minutes of head-scratching reveals that said proposals might make the problem worse, not better.

Politicians (across history and geography) propose and pass laws for all sorts of reasons and many of their motivations are not guided by the principle of good law. Politicians are always under pressure to pass or change laws, because they believe it justifies their existence and their taxpayer-funded salaries. Some politicians believe their contribution to society is directly proportional to the number of laws they pass, thinking that a piece of legislation can only have a positive value.

Every time a politician proposes legislation and his motivation is from a place that is not sober-minded and that does not prioritise the role of good law in creating a better society, the public places a little less value in the legislature and the need for the rule of law. (Also an angel dressed as a lawyer dies and two My Little Ponies get the mange.)

Every time a lawmaker proposes legislation that appeals to our baser instincts and not our higher powers of reasoning we are more likely to regard the law as there to satisfy our thirst for vengeance and not justice. (Incidentally, that’s another problem some libertarians have with laws that are heavier on the punitive side than the restorative justice side. If the state punishes the wrong person we should all bear culpability for its mistake. If we want the state to satisfy our desire to punish people who haven’t directly wronged us we should accept the blame if innocent people are punished in our name. That is, if we are consistent in our approach to justice and the law.)

If Zille’s comments are a calculated approach to winning support for some kind of “DA-values” ticket, it is my duty to tell her as an independent voter and a potential “customer” that I don’t care for what she’s selling. And if her comments are borne out of the frustration of spending money on things she feels her government shouldn’t have to pay for, then I have to tell her that I don’t care for her sales methods. Her approach to highlighting the problem cheapens the value of good laws in the process, a sort of legal version of Gresham’s Law.

The DA has grown quite a bit in the last five years and some of this growth has come through convincing voters that it will defend the Constitution and the rule of law (presumably from abuse by the ANC). When its leader proposes going Pimp-My-Ride-style on some legislation (for whatever reason) and creating something which looks flashy, but can’t steer to save its life, maybe it’s time for the rest of the party to curtail Zille’s Twitter privileges. DM