CONSTITUTIONAL PERSPECTIVE ON THE COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL

Geoff Budlender

Constitutional Litigation Unit

Legal Resources Centre

The Constitution guarantees the rights of all of us - whether we are women or men, black or white, poor or rich, and good or bad. People do not forfeit these rights when they are suspected, or convicted, of sexual offences.

This may sound like an obvious statement. However, we need to remind ourselves of it. We often hear it said that criminals have no rights - that they forfeit their rights when they commit atrocious offences. We need to remember that even a vicious rapist has the rights which exist in every human being, by virtue of being a human being.

Section 12 of the Constitution provides that every person has the right to ‘freedom and security of the person’, which includes the right to bodily and physical integrity. Section 14 states that everyone has the right to privacy.

Compulsory HIV testing infringes these rights in two respects:

1 taking a person’s blood for HIV without consent is an invasion of bodily and physical integrity, and is an invasion of privacy; and

2 disclosing a person’s HIV status to someone else without his or her consent is an invasion of privacy.

However, no right is absolute. It is sometimes said that my right to swing my fists in the air ends where your nose begins. Rights are always in tension with each other. An obvious example is the right to free speech. My right of free speech is limited by your right to dignity and to your reputation. I can not simply defame you at will. A great deal of constitutional litigation involves balancing rights which are in tension with each other.

The issue of compulsory HIV testing demonstrates this.

On the one hand there is the right of the suspect to bodily and physical integrity, and to privacy. The suspect has the right not to have his or her blood taken without his or her consent, and the right not to have his or her HIV status made known to others. And he or she has the right to a hearing before his or her rights are infringed.

On the other hand there is the right of the alleged victim, who also has a right to bodily and physical integrity, and to security of the person. The alleged victim has an interest in knowing the HIV status of the alleged offender - because having this knowledge will affect her or his physical and psychological health in various ways.

In addition, sexual offences are highly gendered. They are a cause of disempowerment and inequality. Dealing effectively with them and with their consequences is important for achieving gender equality, which is a founding value of the Constitution. This raises a social interest which goes beyond the interests of the particular individuals involved.

The Constitution creates a mechanism for balancing rights which are in tension with each other. The mechanism is sec 36 of the Constitution, which is usually referred to as the ‘limitations clause’. This provides that the rights in the Bill of Rights

may be limited only in terms of law of general application to the extent that the limitation is reasonable, and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

This introduces proportionality, which is really about balancing the different rights and interests concerned. My right can be limited in order to give effect to your right - but the limitation of my right should not be greater than is reasonably necessary to give effect to your right - and you may also have to give up part of your right, in order to accommodate my right.

In other words, what the Court does (in the words of the SA Law Commission) is decide whether it is justified to limit an entrenched right in terms of sec 36 by undertaking a balancing exercise to determine

the proportionality between the extent of the limitation of the right considering the nature and importance of the infringed right on the one hand, and the purpose, importance and effect of the infringement, taking into account the availability of less restrictive means available to achieve that purpose.

The issue of ‘less restrictive means’ is critical. In considering less restrictive means, Parliament is entitled to have regard not only to constitutional rights, but also to considerations of cost, practical implementation, the prioritisation of certain social demands and needs and the need to reconcile conflicting interests.

Alongside the question of ‘less restrictive means’, is the extent of the infringement, and the strength of the justification. Justice O'Regan and Justice Cameron (the chairperson of the Law Commission Project Committee) explained it as follows in their joint judgment in S v Manamela:

The level of justification required to warrant a limitation upon a right depends on the extent of the limitation. The more invasive the infringement, the more powerful the justification must be.

In the context of this Bill, three key questions must be considered in evaluating the validity of the limitation:

First, how invasive is the infringement of the rights of the alleged offender?

The compulsory taking of blood or other specimens is not uncommon in criminal cases, where the specimen is required as evidence in the criminal prosecution. It seems to me that this is a fairly limited infringement of the rights of the alleged offender. Disclosing the alleged offender’s HIV status to the complainant is a much more significant invasion. This is a deeply personal and private matter. Disclosure can lead to stigmatisation and discrimination. The fact that disclosure is made only to the complainant, limits the infringement to some extent. However, one can well imagine that an alleged offender would be genuinely and legitimately concerned about the risk of the information being more widely disseminated.

The invasion is aggravated by the fact that the alleged offender is not given any hearing at all before the decision is made. These rights are infringed without notice to the alleged offender.

Recognising this, the Commission has recommended a number of safeguards to limit the infringement. The procedure has to be initiated by the victim or on her or his behalf, and must be preceded by laying a criminal charge. It requires an application made under oath. Authorisation must be given by a magistrate - though the process is such that as long as the police and the complainant follow the correct procedures, an order will be a virtual inevitability. There is a right to have that order reviewed if it is not made in accordance with the prescribed provisions - but again, that right is of very limited practical value if the alleged offender does not have access to the application before the order is made. Strict confidentiality measures apply. The application must be made within a limited period, when the outcome of the test will be of practical benefit to the complainant. The test result is not admissible in the criminal proceedings which follow. And it will be a criminal offence to use this procedure maliciously, or disclose the test results maliciously.

Second, how powerful is the justification for the infringement?

The justification is the benefit to the complainant. The extent of these benefits can be over-stated. According to the report of the Commission, the risk of HIV transmission through sexual assault is not high. If transmission does occur, prevention through the PEP intervention (Post Exposure Prophylaxis) will only be successful if it takes place within 24 to 36 (some say 72) hours. Thereafter, HIV is currently incurable, whatever the state of knowledge of the infected person. And even assuming the complete reliability of HIV testing, a negative test result does not exclude the possibility of HIV transmission, as the alleged offender may at the time have been in the ‘window period’, when the virus is not detected by current tests.

Against that, one has to weigh the very large benefits which accrue from knowledge of one’s HIV status - even if that knowledge is not absolutely certain. In some cases it will enable the complainant to decide to undergo the PEP intervention. It allows the complainant to take special precautions to avoid spreading the virus, through sexual activity, through pregnancy and giving birth, and through nursing a baby. And it is likely to provide a great psychological benefit to the complainant. The fear of and uncertainty about HIV infection can produce devastating psychological consequences. A reduction of that uncertainty is a significant benefit, even if it does not produce absolute certainty.

Third, are less restrictive means available to promote the rights of the alleged victim?

The Commission has examined in detail various measures which might produce a lesser invasion of the rights of the alleged victim. Subject to one qualification, I have not seen any suggestion for a less invasive measure which would promote the rights of the alleged victim.

The qualification is this: In the immediate post-exposure period, there is a very high level of urgency if a PEP intervention is to be undertaken successfully. It seems to me that if the alleged offender is given a hearing at this stage, it is likely to lead to delays which will make an effective PEP intervention impossible. At that time, there is no less restrictive means available, other than that which is proposed in the Bill.

However, once that immediate period has passed, although urgency remains, it is reduced in its intensity. The damage caused by a delay of a few days would be limited. It seems to me that at that stage, it is possible to have a less invasive measure which achieves the desired result, by giving the alleged offender the opportunity to respond to the application for compulsory testing. It should be possible to construct a procedure which is quick, which is conducted only on paper, which does not provide for oral argument, and which does not allow the complainant to confront the complainant, but which nevertheless enables the alleged offender to answer the application.

In summary:

It is not possible to lay down an absolute standard or test for justification of an infringement of rights. One has to apply these principles on a case-by-case basis, and weigh all of these factors together. In my opinion, doing this leads to the conclusion that the proposed legislation will meet the requirements of sec 36 of the Constitution, and will be held to be a justified limitation of the rights of the alleged offender, except for the exclusion of any hearing for the offender if the application has been made after the time when a PEP intervention will be effective.