Abstract
Since 2003 the Portfolio Committee on Justice and Constitutional Development has deliberated on legislation providing for the compulsory HIV testing of accused sexual offenders. After having been approved by the National Assembly and submitted to the National Council of Provinces in May 2007, it seems likely that compulsory HIV testing of alleged sexual offenders will be enacted as part of the new sexual offences legislation. This article describes the development and content of the provisions on compulsory HIV testing and examines their practical utility against the background of the alleged offender’s constitutional rights. It is argued that these provisions are unlikely to provide the relief sought by victims, and may result in an unconstitutional limitation of an accused’s right to privacy.
Highlights
South Africa is battling with an extremely high incidence of sexual offences
In the year 2005/2006 the South African Police Service (SAPS) received 54 926 reports of rape. (SAPS 2006) these figures do not reflect the true scope of the problem because sexual offences are highly under-reported
The law reform process Pressured by mounting public concern about the coupled high prevalence of sexual offences and HIV/AIDS, the Portfolio Committee on Justice and Constitutional Development asked the South African Law Reform Commission (SALRC) in 1998 to examine the possible enactment of legislation for the compulsory HIV testing of alleged sexual offenders
Summary
Since 2003 the Portfolio Committee on Justice and Constitutional Development has deliberated on legislation providing for the compulsory HIV testing of accused sexual offenders. The provisions allow victims of sexual offences and investigating officers to apply for a mandatory HIV test of the alleged offender. Victims’ application Before the victim or a person acting on behalf of the victim can apply for a compulsory HIV test of an alleged sexual offender, the victim must lay a criminal charge with the SAPS. Another requirement for the application is that not more than 90 days have passed since the alleged commission of the offence. Opponents of the legislation believed that the infringement of the alleged offender’s constitutional right to privacy (s 14 of the Constitution) – among others – was unjustifiable and that compulsory HIV testing lacked practical utility
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