Women's groups and anti-rape activists have welcomed a proposed new law making HIV testing of rapists and other sexual offenders compulsory.
Leslie Liddell, director of Rape Crises in Cape Town, said yesterday the planned legislation would reduce some of the trauma that the rape survivor has to go through in, that she doesn't have to constantly worry (about contracting Aids).
The SA Law Commission, in a report released yesterday, recommended that the law should provide for testing for any victim of an alleged sexual offence, in which exposure to the body fluids of the arrested person may have occurred.
The commission considered the need for legislative intervention because of the high prevalence of HIV coupled with the high prevalence of rape and other sexual offences.
Welcoming the proposals, Liddell said if a rape survivor could get immediate treatment it would reduce the risk of contracting full-blown Aids.
On the constitutionality of compulsory testing, she said she was aware of the debate about the violation of the perpetrator's rights, but the rights of the survivor should take precedence.
This could be a sticking-point, but rights have to be balanced.
Johnny de Lange, chairman of the National Assembly's justice committee, said last night the main concern was the secondary victimisation of women subjected to sex offences.
The Law Commission has in principle accepted in such cases to give women, or the person raped, peace of mind, to allow for compulsory testing of HIV.
Compulsory testing raised complex issues and parliament had not wanted to pass any laws until the research had been done.
The research has been done and it would be for the Department (of Justice) to look at the matter.
De Lange said the new law would not be tabled in time to be passed this year, but would come before parliament in the new year.
The Law Commission had recommended compulsory testing of sex offenders on the principle that the victim must ask for the test.
This will ensure that only a person with a material interest in the arrested person's HIV status may apply for a compulsory testing order.
Among the commission's recommended conditions:
- That there should be prima facie evidence reflected in depositions under oath that a sexual offence has been committed against the victim by the arrested person.
- That in the course of the offence the victim was exposed to the body fluids of the arrested person.
- No more than 50 calendar days may have passed since the date on which it is alleged the offence in question took place.
- That compulsory HIV testing of an arrested person takes place only on authorisation by a court - and that this should be at the discretion of the presiding officer.
- That in order to ensure an uncomplicated and speedy process and to protect the victim from again having to confront the attacker, the arrested person (or his or her legal representative) should not be allowed to be present at or give evidence in an application for compulsory HIV testing.
- That the arrested person should retain his or her right to apply to the High Court for review in the event that an order for compulsory testing is not properly granted in accordance with the prescribed requirements.
- The procedure should provide for confidentiality of the arrested person's HIV test results.
Source: Cape Argus (Cape
Town), July 3, 2001, Posted to the web July 3, 2001