Abstract
Since being approved by both the National Assembly and the National Council of Provinces, it seems likely that the provisions on compulsory HIV testing of alleged sexual offenders will soon be enacted as part of the new Criminal Law (Sexual Offences and Related Matters) Amendment Bill. Whereas an earlier article (see SA Crime Quarterly 20, 2007), questioned the constitutionality of the provisions, this commentary focuses on the implementation challenges of compulsory HIV testing. Despite good intentions, these provisions will not actually be useful for rape complainants. Instead, the potential exists that rape complainants will be endangered and criminalised. Another concern is the feasibility of compulsory HIV testing, which will place an overwhelming burden on the police, who have neither the resources nor the training to provide such services.
Highlights
Since being approved by both the National Assembly and the National Council of Provinces, it seems likely that the provisions on compulsory HIV testing of alleged sexual offenders will soon be enacted as part of the new Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Compulsory HIV testing provisions The legislation allows both male and female victims of sexual offences to apply for a compulsory HIV test of the accused sexual offender
Giving victims the opportunity to apply for an HIV test of the alleged sexual offender implies that the test result is somehow relevant to them
Summary
Giving victims the opportunity to apply for an HIV test of the alleged sexual offender implies that the test result is somehow relevant to them. Compulsory HIV testing neither helps victims to make ‘medical decisions’ around postexposure prophylaxis (PEP) nor ‘lifestyle decisions’ around safer sex, because the test result is unreliable. It may, but does not necessarily, reflect the accused’s HIV status because the alleged offender may be in the ‘window period’ when s/he is tested for HIV. For instance, a victim stops taking PEP, or stops practising safer sex, because the test of the alleged offender came back negative, s/he is at an increased risk for contracting HIV. The legislation is very misleading and – without in-depth education of the victim – will jeopardise the physical and psychological well-being of victims and their consensual sexual partners
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