Sexually transmitted Diseases and the Law: Can victims in Nigeria seek Justice? by Lanase Usman
by Lanase Usman A.[1]
1.0: INTRODUCTION: Sexually transmitted infections (STIs), or sexually transmitted diseases (STDs), are infections that are passed from one person to another through sexual contact. They are usually spread during vaginal, oral, or anal sex. But sometimes they can spread through other sexual contact involving the penis, vagina, mouth, or anus[2].
They may also be contacted through contact with the blood of an affected person (HIV). Undoubtedly, (STDs) are public health concern globally[3]. Nigeria as a country has its own share of these global issue with research revealing the prevalence of STDs among youths in Nigeria[4].
In a study[5] conducted in Benin City, it was observed that the prevalence of STDs among a population of sexually active undergraduate students is 27.7%.
According to this research, the common sexually transmitted infections include gonorrhea (41.9%), syphilis (29.9%), staphylococcus (21.0%), Chlamydia (9.7%), HIV/AIDS (6.5%) and Hepatitis B (4.8%). Beyond the health implications that are associated with STI’s (Sexually transmitted infections), the intentional or reckless transmission of an STD raises legal questions about accountability, liability, and victim rights.
Hence, the need to examine the perspective of the law in relation to this issue. It is the conclusion of this writer that although there is no express provision which specifically prescribes punishment for transmitting STDs or that specifically regulate transmission of STD, however the available legal frame works are enough to cover the field pending the enactment of specific legislation.
It is thus recommended that law makers address these issues to protect the life of people and ensure the promotion of welfare of citizens which is the primary purpose of the government[6].
This article seeks to examine whether it is legally possible for an individual to sue another person for transmitting an STD in Nigeria considering the physical, emotional and economic consequence of same.
2.0: UNDERSTANDING THE LEGAL REMEDIES FOR VICTIMS OF STD TRANSMISSION IN NIGERIA
As mentioned earlier, there is no specific legislation that specifically address the prevalent reckless transmission of STDs and prescribes punishment for transferring same from one person to another. Regardless of the status quo however, it is legally wrong to assume that anyone who intentionally, recklessly, negligently and willfully transmit STDs to another will not suffer any liability.
The general position of the law is that Ubi jus ibi remedium. This translate to means where there is a wrong, there must be a remedy. In Nigeria, it is legally possible for an individual to sue another person for transmitting an STD to them, but the success of such cases depends on the evidence led, applicable legal frameworks and the circumstances of each case. An individual may decide to sue under law of tort or criminal law.
2.1.0: NEGLIGENCE AS A TORT
Firstly, victim may institute legal actions based on negligence[7]. Suffice to say that these are general principles. It is not every act of carelessness or negligence that is actionable under the tort of negligence[8]. Lord Wright explained[9]:
in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.
From the above statement of Lord wright, it becomes evident that the tort of negligence involves the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. Thus, the ingredients are:
- A duty of care owed by the defendant to the plaintiff;
- Breach of that duty of care by the defendant;
- Damage to the plaintiff resulting from the breach[10].
In any action for negligence, the first issue to be determined is whether the defendant actually owe a duty of care to the plaintiff. A person cannot be liable in negligence if a duty of care is not established against him as in this case[11].
The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the legal duty of care against the defendant, the action must fail.
Let us cite example of a legally married couples or two adults in a sexual relationship. Mr A is a promiscuous man who unknowingly to his partner has contacted a sexually transmitted infection. Mr A subsequently withheld that information despite being fully aware that he has tested positive, proceeds to have unprotected intercourse with his partner and infected her with same.
As a matter of law, Mrs B (partner of Mr A) has the right to sue to Mr A for intentionally infecting her with the diseases if she can prove all the ingredients of negligence cited earlier without any evidence to contrary which may suggest that she willingly consent after full disclosure.
In State v. Lankford[12], the court held that a husband who infected his wife with syphilis was guilty of battery on the ground that his wife, “in confiding her person to her husband,” did not consent to infection with a “loathsome” disease.
In the case of Hendricks v. Butcher[13], the court noted that once an individual is aware of his infection, it is his duty to keep away from others, but where contact occurs he is obligated to inform them of his disease “so that they might protect themselves.”
It is not a defense that a man contacted sexually transmitted disease through an immoral relationship and he would not have the right to seek redress in such instance. This argument is not tenable as there is a clear difference between “consent to sex” and “consent to contact sexually transmitted disease”.
The consent in this circumstance is distinguishable. The consent in the former relates to act of intercourse, not to the harmful contamination. It would have been different if one agrees to proceed with the sexual intercourse after full disclosure by the infected person. In this instance, liability will not arise.
In the case of State v. Lankford cited earlier[14], a husband infected his wife with syphilis. He failed to inform his wife of his health status. The court inferred the intent to communicate the disease from the “actual results” because of the husband’s failure to disclose his infection.
Similarly, in the case of Crowell v. Crowell[15], the North Carolina Supreme Court held that a “husband’s concealment of the risk of venereal disease infection vitiated his wife’s consent to sexual intercourse and subjected him to liability.”
Thus, victims may seek damages to cover medical expenses, the emotional distress suffered, and other losses. Note importantly that the success of such a claim hinge on the ability to prove the defendant’s knowledge of their STD status and the causal link between their actions and the harm suffered, preferably through medical evidence from expert.
2.2.0: CRIMINAL LAW
While Nigeria’s criminal statutes (such as the Criminal Code Act and Penal Code Act) do not specifically mention STD transmission, several provisions could also apply indirectly.
Circumstances may arise that a victim had contacted sexually transmitted diseases through rape. Rape is a serious offense under our criminal justice system. The Criminal code prescribes life imprisonment as the punishment of rape[16] and 14 years imprisonment as punishment for an attempt to commit the offense if same is successfully proved[17].
The penal code[18] which is applicable in the northern part of the country also has a similar provision criminalizing rape and prescribes punishment for same. The penal code provides that the punishment for rape shall be imprisonment for life or for any less term and the payment of fine[19]. In any event that a victim contacts STI and evidence was led which successfully established same, court shall provide adequate compensation for the victim while also convicting the accused.
2.3.0: THE NATIONAL HEALTH ACT (NHA), 2014
The National Health Act establishes a legal framework for regulating Nigeria’s healthcare system. It covers aspects like healthcare access[20], universal health coverage[21], provider practices[22], and patient rights[23]. Under the Act, both public and private healthcare providers are obligated to provide emergency treatment, disclose procedures, risks, and costs to patients, and maintain patient confidentiality. Patients can also file complaints against providers, and there are penalties for breaches, such as fines or imprisonment for providers refusing emergency care.
PART III of this Act also makes provisions for rights and obligations of users (patients) and health care personnel. The Act provides that[24]:
Every health care provider shall give a user relevant information pertaining to his state of health and necessary treatment relating… the user’s right to refuse health services and explain the implications, risks or obligations of such refusal. (2) The health care provider concerned shall, where possible, inform the user in a language that the user understands and in a manner which takes into account the user’s level of literacy.
Some individuals are victims of Sexually transmitted diseases through the negligent act of some medical practitioners. Any medical practitioner that breaches the above act shall also be liable under the Act and shall face the Medical and Dental Practitioners Disciplinary Tribunal[25]. Some examples of medical negligence in this context is a clear instance of [26]using medical equipment which had earlier been used for a victim who had tested positive for any STI or blood transfusion from an infected person negligently to an healthy individual as in the case of HIV.
2.4.0: FRAUDLENT MISREPRESENTATION
Most people in Nigeria today contacted STD through deceit or fraud which arises when a person intentionally misrepresents their health status. For example, knowingly lying about being STD-free to induce consent. Where two consenting adult decides to engage in a sexual act and the other person misrepresent their STD status to induce the other party to have sexual intercourse with them, the other party may sue them on that basis[27] for fraudulent misrepresentation[28] under the criminal code or the penal code.
Thus, question may arise as to whether it is important to disclose if the innocent party did not ask. It is the submission of this writer that full disclosure is very important since the fundamental right to life of the person will be endangered. Right to life is sacrosanct. Any attempt to directly or indirectly endanger same will be unlawful or unconstitutional.
This position would be fortified with the provision of section 33 of the 1999 constitution as amended. Right to life and dignity of human persons are affected as certain STD’s affect the quality of life and may rob victims of the dignity associated with such quality or expose victims to ridicule in the society.[29]
2.5.0: The Violence Against Persons (Prohibition) Act, 2015 (VAPP Act)
The VAPP Act provides is an innovative legislation which addresses various forms of violence and harm against persons irrespective of the gender or status. These forms of violence include acts that result in physical, psychological, or emotional harm. While the Act does not explicitly mention STD transmission, several provisions are relevant to this discussion.
Section 5 of the act criminalizes acts that cause physical, psychological, or emotional harm. The section provides that any person who compels another, by force or threat, to engage in any conduct or act, sexual or otherwise, to the detriment of the victim’s physical or psychological well-being commits an offense and is liable on conviction to a term of imprisonment not not exceeding 2 years or a fine not exceeding N500, 000.00 or both.
The wordings of this section suggests that any act that may cause physical, psychological or emotional harm is an offense under the act. No doubt, transmission of an STD falls under this provision if the act was intentional or reckless. The law is clear that when the words of the statute are plain, unambiguous, its ordinary meaning should be adhered to[30].
However, one may argue further that the above section specifically relates to instances where such transferor uses threat, force or compulsion to engage in any conduct or act to the detriment of the transferee which subsequently causes physical, psychological or emotional harm. It is the submission of this writer that same section may apply to instance where the threat or force is indirect.
For instance, a man who knowingly withhold the fact of his state of health and induced another person to have sex with them may be deemed to have infected such other person against their will and without their consent. Thus, same section applies. It is hoped that court will interpret this section as it will further contribute to our jurisprudence.
Section 14 of the Act provides that any person who causes emotional, verbal and psychological abuse on another commits an offense and is liable on conviction to a term of imprisonment not exceeding 1 year or to a fine not exceeding N200,000.00 or both.
No doubt, anyone who intentionally infect another person with STD has caused them emotional and psychological abuse. Victims of STD in a country like ours often face significant emotional trauma, making this provision relevant. This is the more reason why laws like the HIV/AIDS (Anti-Discrimination) Act 2014 seeks to prohibits any form of discrimination against individuals living with HIV/AIDS. Sadly, this law does not directly criminalize the transmission of the virus[31].
Section 38 of the Act also provides for comprehensive right of violence victims to all necessary legal and medical assistance.
3.0: CONCLUSION
Right to life is sacrosanct and should be protected. Any act which may directly or indirectly endanger the lives of citizens should be prevented and prohibited at the earliest stage. It is important to note that the act of intentionally or recklessly transmitting sexually transmitted diseases, although not expressly provided could still amount to an offense and in fact a violation of fundamental human right of citizens. An attempt to infect unsuspecting citizens is an attempt to endanger their life. Thus, affected people may seek redress in court to that effected. It is also recommended that law makers enact laws that will specifically tackle situations of this nature. These laws will explicitly criminalize the intentional or reckless transmission of STDs, with clear provisions for civil and criminal remedies. It is also hoped that more states will adopt the VAPP Act as same has not been adopted in some states.
[1] Lanase Usman, AICMC. LL.B Hons (UNILORIN). He currently works as a Legal Administrative Assistant at the law firm of L.O Fagbemi, SAN (Rahma Chambers). He can be contacted via: 08106646768, Email:lanaseabidemi@gmail.com.
[2] Sexually Transmitted Infections, https://medlineplus.gov/sexuallytransmittedinfections.html, Accessed 5th January, 2025.
[3] World Health Organization, Sexually transmitted infections (STIs), https://www.who.int/health-topics/sexually-transmitted-infections, Accessed 5th January, 2025.
[4] National Cancer Institute, https://www.cancer.gov/publications/dictionaries/cancer-terms/def/std, Accessed 5th January, 2025.
[5] P.A Oduvwu, p. 81-90 https://dx.doi.org/10.4314/johasam.v7i2.7 Sexually Transmitted Infections: A Narrative Review with a Note on Prevalence in Nigeria, https://www.ajol.info/index.php/johasam/article/view/272034/256754, Accessed 5th January, 2025.
[6] Section 14 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
[7] Section 196 of the Penal Code.
[8] Donoghue V Stevenson. (1932) AC, 562.
[9] Lochgelly Iron & Coal Co. v McMullan (1934) A.C 1. At page 25.
[10] Ojo v. Gharoro (2006) 10 NWLR (Pt.987) 173.
[11] Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356.
[12] State v. Lankford, 29 Del. (6 Boyce) 594.
[13] 144 Mo. App. 671, 129 S.W. 431 (1910).
[14] State v. Lankford, 29 Del. (6 Boyce) 594.
[15] 181 N.C. at 68, 106 S.E. at 150.
[16] Section 357 and 358 of the Criminal Code.
[17] Section 359 of the Criminal code.
[18] Section 282 of the Penal Code.
[19] Section 283 of the Penal Code.
[20] National Health Act, 2014, Section 20
[21] National Health Act, 2014, Section 21
[22] National Health Act, 2014, Section 23
[23] National Health Act, 2014, Section 26
[24] Part III User to have full Knowledge.
[25] section 17 of the Medical and Dental Practitioner Act.
[26] Nigeria: A Review Of Medical Negligence In The Nigerian Healthcare Sector: Utilising The Law As A Panacea, <https://www.mondaq.com/nigeria/healthcare/1266406/a-review-of-medical-negligence-in-the-nigerian-healthcare-sector-utilising-the-law-as-a-panacea->, Accessed 22October, 2023.
[27] Section 16 and 17 of the Penal Code.
[28] Section 357 and 358 of the criminal code.
[29] Section 34 of the 1999 constitution of the Federal Republic of Nigeria.
[30] Ojukwu v. Obasanjo, Awolowo v. Shagari, Akintola v. Adegbenro, Idehen v. Idehen.
[31] Section 3,4,5,6,7,8,9, 22 and 23 of the Act.
