Abstract

On 25 September 2024 Leon Santos Conga, who infected his former partner with HIV, was sentenced to life imprisonment for rape and attempted murder by the Pretoria Magistrate’s Court. The basis for the rape conviction was that he deceived his partner into believing that he was HIV-negative, and she would not have had sex with him had she been aware of his HIV-positive status. This is the first HIV-related conviction for rape ‘committed under false pretences or by fraudulent means’ in terms of section 1(3)(c) of SORMA. Using the Conga judgment as a point of departure, this contribution critically examines the current South African legal position on deceptive sex, including the rationale for criminalising deceptive sex as rape, and each element of the crime as affected by HIV-related deception in particular. It concludes that while the Conga ruling may be a legally correct expansion of the application of section 1(3)(c) in principle, there are persuasive policy reasons for not following its approach in future owing to the wider societal cost of criminalising HIV-related deception as rape, including exacerbating stigma against HIV-positive individuals and negative public health ramifications.