The Criminal Law (Sexual Offences) Amendment Bill--implications of criminalising non-disclosure of HIV status.

Abstract

In its preamble the Criminal Law (Sexual Offences) Amendment Bill affirms South Africas obligations towards the eradication of violence against women and children in terms of several international legal conventions and covenants as ratified by the country. In addition it stresses that the high incidence of sexual offences in this country has a particularly disadvantageous effect on vulnerable persons and that women and children are especially vulnerable in this regard. Genital or anal penetration would be prima facie unlawful if committed inter alia under false pretences or by fraudulent means which in turn is defined as intentionally failing to disclose being infected with a life-threatening sexually transmissible infection in circumstances in which there is significant risk of transmission of such infection. The question raised is whether this expanded concept of rape in the Bill would in reality protect women as it sets out to do in its preamble or whether womens vulnerability would increase even further as a consequence. The negative public health implications of the latter effect would make doubtful any perceived benefits of such a strategy. (excerpt)