COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS:
1. INTRODUCTION
The organisations making this submission include those providing legal services to survivors of sexual violence, organisations conducting research into violence against women, organizations focusing on issues of women’s health, and organisations providing counseling and support services to survivors of sexual violence.

This specific Bill arose out of research conducted by the South African Law Commission (SALC) into the question of whether or not it is possible to introduce legislation to provide for compulsory testing of sexual offenders for HIV. According to the SALC, this infringement on an accused’s rights is justified by women’s vulnerability to sexual violence within a South Africa combining both high levels of sexual violence and a national epidemic of HIV.

Should the Bill come into effect, it will permit a rape victim (or person acting on their behalf) who has reported the attack to the police, to apply to a court to have the alleged rapist tested for HIV. The application should be brought within sixty days of the rape having taken place. The results of the test may only be made known to the victim and alleged perpetrator and cannot be used as evidence in either civil or criminal matters arising from the rape.

The SALC claims that this process will benefit rape survivors in at least two ways. Not only might this knowledge give women some peace of mind about their attackers’ HIV-status, but it should also assist them to make important choices around the use of anti-retroviral drugs, and safer sex practices (SALC, 2000: ix).

In principle we welcome initiatives to improve the treatment of rape survivors and create systems responsive to their needs, and view this legislation as an attempt by the state to fulfill its obligation to protect women from all forms of violence. The Department of Justice is also to be commended for taking note of very real public concerns around the exposure of women and young girls to HIV infection during a sexual assault. Thus the good intentions behind this bill are unquestionable; what is in doubt is its value and utility. Our submission will argue that the proposed legislation is an inadequate and incomplete response to the problem of HIV-transmission in the context of sexual assault. Further, it is premature in light of the fact that the Sexual Offences Bill has yet to appear before the Portfolio Committee - let alone be enacted. The Bill is therefore being proposed in isolation of other attempts to address rape and effectively puts the cart before the horse. It also does not form part of a comprehensive package of services and legislation for rape survivors and runs the risk of reducing the many needs and concerns of rape survivors to those associated with HIV-infection alone.

Finally, the promulgation of legislation cannot be divorced from the context in which it is to be implemented. This is particularly relevant in a country with limited resources and competing priorities. From a cost-benefit point of view, government departments must consider what interventions will have the greatest positive impact on the largest number of people and prioritise interventions on this basis. Thus while the Bill may be relatively innovative, it cannot be imposed upon a system that is fundamentally flawed and in need of an extensive overhaul. We do not think this Bill can be a priority at this point in time.

As mentioned earlier, the Bill aims to give women some peace of mind about their attackers’ HIV-status, and also assist them to make important choices around the use of anti-retroviral drugs, and safer sex practices. We are not convinced that it meets these aims.

Firstly, the extent to which this legislation is likely to assist women make decisions around anti-retroviral drugs is open to question. Anti-retroviral drugs to reduce the risk of HIV infection (or post-exposure prophylaxis (PEP)) must be administered within the first 72 hours immediately after the rape and taken for 28 days if they are to be effective. This means that a rape suspect must be arrested and his HIV status determined within twenty-eight days of the rape if this legislation is to be meaningful in assisting women to decide whether or not they want to take PEP. It is unknown how swiftly most arrests occur.

Thus the 60 day time period proposed by the legislation to allow for the execution of an order to test the alleged perpetrator bears no relation to the time period during which a person must take PEP to prevent the transmission of HIV. This is not explained in the notice sheet to be handed to the survivor. This legislation has the potential then, to confuse survivors about the time period in which PEP must be taken, and encourage them to postpone this crucial and immediate decision-making process.

Further the decision to take PEP is not solely dependent upon the alleged perpetrator’s status. Indeed, knowing the HIV-status of the alleged rapist does not tell rape survivors what their own HIV-status is. Rape survivors must themselves be tested and their HIV-status determined before PEP can be administered. A false sense of security may be created amongst rape survivors who now know the alleged rapist’s status, but not their own. It is therefore advisable to build upon Public Health measures that encourage all people to know their HIV status by having themselves tested.

Secondly, even when the alleged rapist is arrested within this 28-day period, and tests HIV negative, caution suggests that rape survivors should probably still complete a course of PEP as the perpetrator may not be negative, but in the window period before HIV becomes detectable.

In its submission, the AIDS Law Project argues that this risk is minimal and calculates the chances of an accused being in the window period as 0.7%. Leaving aside for the moment questions of the accuracy of this calculation, this risk is too high to brush aside. International research (cited in Kim, 2000) estimates the risk of HIV transmission from a single act of unprotected receptive vaginal intercourse to be from 0.0005 – 0.0015, and from 0.008 – 0.032 for unprotected receptive anal intercourse. The risk associated with percutaneous occupational exposure is estimated to be 0.003. The risks of transmission during rape are very likely to be higher, given the violent nature of rape which creates a higher risk of genital injury and bleeding (so increasing the risk of HIV transmission), and, in cases of gang rape, where exposure to multiple assailants also increases the risk of transmission. That noted, the chance of an accused being in the window period is probably greater than the risk of infection after rape. Further, people are highly infectious while in the window period and their viral load higher than that of people infected, but out of, the window period. Thus it is particularly important that rape survivors take PEP if an alleged rapist is in the window period. The only way to eliminate uncertainty regarding the window period is to administer a PCR test rather than the ELISA test currently utilized in public health settings. However, the PCR test is considerably more expensive than the ELISA test and, as a result, only used in private health care settings.

Further, a positive test result on the part of the rape suspect does not mean that the rape survivor will have HIV and is not proof that the suspect was positive at the time of the assault. It is possible for the alleged perpetrator to have been infected after the sexual offence from another source, and so test positive - although they may have been HIV-negative at the time of the alleged offence.

In conclusion, the result of one HIV test of an accused does not necessarily provide the survivor with accurate knowledge of the accused’s status – either at the time of the rape, or the time of the test. As a consequence, decisions around taking PEP, as well as practising safer sex, may be based on inaccurate information.

Overall then, we do not think that the Bill meets the aims it sets out for itself. There are however further issues to consider.

The proposed regulations accompanying the Bill allow the alleged offender to bring a civil claim for damages against a rape survivor if the application for the test is shown to be malicious. Given the low conviction rate for rape in South Africa, as well as the number of cases withdrawn, we are concerned that many rape survivors may be exposed to the risk of such civil claims. Some may interpret the withdrawal of charges or acquittal of an accused as proof of the falseness of the rape charge, and so claim that the application for the test was motivated by malice. As the statistics in the next paragraph suggest, the number of rape survivors who may be open to such claims is not insignificant.

According to figures taken from a government report cited in the Mail and Guardian newspaper, 8.9% of reported child rapes and 6.8% of adult reported rapes resulted in convictions in 2000. Mpumalanga province recorded the lowest number of convictions (3% for adults and 4% for children) followed by Gauteng which secured convictions in 7% of reported child rape cases and 4.9% in adult cases. Forty-three percent of reported rape cases were withdrawn in 2000, with 46% of these withdrawals occurring at the request of the victim.

There are many reasons for the low conviction rate that have nothing to do with the falseness of rape survivors’ claims but much to do with poor police investigations, the loss of dockets, sub-standard medico-legal examinations, incompetent prosecutions, and laws hostile to rape survivors. We will not go into detail here as many of these problems are alluded to in the Sexual Offences Bill, which also aims to address many of these problems.

As a separate point, the legislation specifically provides that information obtained from the test cannot be used by the survivor in any other legal proceedings, so preventing the survivor from bringing a damages claim for wrongful or intentional infection of HIV (in cases where they are subsequently infected). Furthermore, the information cannot be used in any criminal case to increase the sentence that the accused receives.

The manner in which the rape survivor is to be informed of the accused’s status leaves much to be desired, with it being proposed that the accused’s test results be given to her in a sealed envelope by the investigating officer. This is most likely to take place at a time convenient to the investigating officer, providing the survivor with little control over when and where she is told.

It is standard, ethical practice to make pre- and post-test counselling available to those being tested for HIV. Indeed, the Bill makes provision for such counselling for the alleged perpetrator. However, no provision is made in the draft legislation for the counseling of the survivor, either before s/he makes an application or after the test results are delivered. Providing information about whether or not one has been exposed to HIV, and therefore at risk of infection, may have very similar psychological and emotional consequences as being tested. Far more concrete support should be made available to rape survivors than a vague recommendation that they seek counseling (which may be very difficult where no services exist, and where poorer rape survivors must now find the money to travel and seek such counseling services).

In this section we attempt to identify some of the costs of the legislation, weighed against its putative benefits.

In 1999 the Minister of Safety and Security supplied the following statistics regarding the police’s arrest rate in response to a question raised by a Member of Parliament:

Costs and resources required for this legislation include (but are not limited to) magistrates and their time, investigating officers and their time as well as vehicles and petrol, health care workers and their time, training for members of the police around the Bill, stationery and photocopying costs for the reproduction of the various forms and the costs of PCR tests (unless the Department of Justice considers the risks of the ELISA test and its inconclusiveness around the window period to be acceptable risks for rape survivors to bear).

This Bill makes a number of assumptions about access to PEP at state institutions, as well as the extent of implementation of guidelines around the provision of PEP. In practice, counseling organizations are finding that primary health care facilities where PEP is available are not clearly identified, nor always accessible to survivors (taking into account transport constraints and employment constraints). In many cases the survivor is unable to return to the original Health Care facility to obtain the remainder of her PEP because of these difficulties. There is also a lack of adequate and clear information to rape survivors about transmission of HIV, as well as PEP, its possible side effects and how these could be managed. Organisations have also noted how much confusion exists amongst rape survivors around the window period.

Given these challenges, which suggest that the state is unable to effectively and consistently provide PEP, we must question the urgency and wisdom of adding yet another obligation to under-resourced, over-burdened state facilities. We believe that the State resources will be better spent in ensuring immediate and effective forensic health care to sexual assault survivors through, for example, the provision of PEP for sexual assault survivors, counseling and testing, and the employment of more health workers (which could reduce the time spent waiting for forensic medical examinations).

In addition, Rape Crisis Cape Town Trust is particularly concerned that implementation of the provisions of this Bill will detract from the resources available to implement bail legislation. Their clients indicate that the arrest of the suspect(s), as well as the correct application of bail procedures, is of primary concern to their well-being and sense of safety.

6. CONCLUSION

On the face of arrest rates alone, this Bill offers no benefits to the majority of survivors of sexual violence. Nonetheless, we acknowledge that some rape survivors may benefit from this legislation - but this has to be offset against the possible costs to other rape survivors.

We are of the view that this legislation should be not prioritized for promulgation at this point. We recommend that all the Department of Justice’s resources and energies in this area go towards the enactment and implementation of the Sexual Offences Bill. This Bill will benefit all rape survivors and reform responses by the health system, police and courts to rape survivors. Thereafter, within a period of two to five years, the Committee should reconsider this particular Bill. With revisions, it could be considered as a kind of ‘icing’ on the Sexual Offences Bill.