COMMISSION FOR GENDER EQUALITY WORKSHOP

COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL
Cape Town Thursday 16 January 2003

BRIEFING AND RECOMMENDATIONS ON THE BILL

by Anna-Marie Havenga
Researcher, South African Law Commission

INTRODUCTION
Thank you for the opportunity to speak.

I was asked to brief you on the draft Bill that will be discussed here today.

The proposed legislation is based on proposals by the Law Commission.

I am doing the briefing in my capacity as researcher at the Commission who worked on the development of the Bill together with the Commission’s project committee under the leadership of Judge Edwin Cameron.

The briefing will broadly cover

I Some background information
II
What the legislation provides for and how this changes our current law.
III. The reasons for the Commission’s recommendations and the envisaged purpose of the legislation.

1 Background

1.1 The Law Commission was requested by the Justice Portfolio Committee at the end of 1998 to investigate the possibility of compulsory HIV testing of sex offenders with a view to provide the test results to victims of such offences. The request was prompted, amongst others, by the increasing pressure on the authorities to take appropriate action against the deliberate transmission of HIV.

1.2 The Commission concluded and recommended that legislative intervention is necessary and developed the necessary draft legislation. Its recommendations were preceded by the publication of a Discussion Paper. There was overwhelming support from the public, experts and interested parties for the intervention proposed.

1.3 In response to a need reflected in the comments on the Discussion Paper, the Commission also developed draft regulatoins addressing the practical implementation of the proposed legislation. This also served the purpose of presenting the Commission’s proposals to Parliament as a complete, practical and workable process.

2 What is the aim of the proposed legislation/ what does it provide for?

2.1 The planned legislation creates a simple and speedy process for a victim of a sex offence to apply to have the arrested person tested for HIV, and to obtain those test results.

3 How will this process work in practice?

Very broadly the Commission recommended the following procedure:

i) A victim of a sex offence will be allowed to apply for having the accused tested for HIV if she has laid a charge.

ii) The SAPS will inform her about this right.

iii) She (or somebody acting on her behalf) will have to fill in an application form in which she will give information about the alleged offence and her possible exposure to the accused’s body fluids. The information will be in the form of a sworn statement.

iv) The investigation officer will submit the application to a magistrate. The magistrate will consider the application and order that the accused be tested for HIV; or he may dismiss the application. The investigation officer will inform the victim of the magistrate’s decision.

v) The investigating officer will take the accused to a testing facility designated by the Department of Health.

vi) His blood will be drawn and tested.

vii) The test result will be recorded in duplicate on a prescribed form and the forms will be sealed and handed to the investigation officer.

viii) The investigating officer will hand the one sealed record to the accused and the other to the victim.

4 I Want To Highlight The Following Specific Points In The Proposed Process

(There are other important points also, bearing on the rights of the accused - I will deal with them later.)

i) Testing will not take place automatically – but only on application of the victim - there is however no obligation on her to bring the application.

ii) The procedure is made as accessible (and fair in the case of the arrested person) as possible by providing for various informational forms to be handed to the victim an/or the arrested person at certain stages in the process. Significantly the information to the victim also contains a warning against misuse or abuse of the process.

iii) Testing of the arrested person will take place BEFORE conviction.

iv) The mechanism will be available to both male and female victims.

v) A sense of urgency is built into the process to facilitate the initiation of PEP where it is accessible and available.

vi) The victim is not obliged to attend the proceedings; and the arrested person (or his or her legal representative) is not allowed to be present or give evidence at the proceedings. This is to ensure an uncomplicated and speedy process and to protect the victim form unnecessary contact with the justice system and from contact with the assailant which could lead to further traumatisation.

5 How does this change the current legal position?

5.1 In general our law at present provides for HIV testing only with the informed consent of the person concerned; every person is entitled to privacy regarding medical information and no general legislation exists which allows for disclosure of such information.

5.2 Furthermore, neither currently available public health law nor criminal procedure makes provision for compulsory HIV testing of persons arrested for sexual offences with a view to disclosing their HIV status to victims. 

5.3 The proposed legislation changes this in allowing HIV testing without the consent of the arrested person and disclosing the test results in accordance with the requirements as prescribed in the proposed legislation. NOTE in this regard that the word "compulsory" HIV testing is used in the sense that the arrested person will have no choice as to whether the testing is to be undertaken or not. It was envisaged by the Commission that the testing may include consensual as well as non-consensual testing. "Compulsory" testing does not refer to "automatic" testing of all arrested persons; it also does not refer to any obligation on the victim to have testing done or to request the testing.

6 What safeguards have been built into the process to protect the accused?

6.1 The Commission acknowledged that its recommendations imply that the accused’s rights are infringed; and recommended that this must be reflected in procedural and substantive safeguards built into the process created: These safeguards include the following:

i) The accused should not be automatically tested. The process should be initiated by the victim (through an application) to ensure that only a person with a real interest in the arrested person's HIV status will apply for testing.

ii) Testing of the accused may take place only when a court has ordered it.

iii) The court may only order testing under certain circumstances prescribed in the legislation.

iv) Although the arrested person (or his or her legal representative) is not allowed to be present or to give evidence in an application for HIV testing, the accused will retain his or her right to review.

v) The process provides for the confidentiality of the arrested person's HIV test result.

vi) A limited period of time is allowed for bringing an application and executing it. This period coincides with the period during which a victim's own HIV test would clearly indicate whether he or she had been infected with HIV (the "window period"). A time limit of 60 days has been set (a maximum of 50 days to apply for and grant the order and 10 days to execute the order).

vii) The information regarding the HIV status of the accused will not be admissible as evidence in any criminal or civil case.

viii) Maliciously making use of the procedure or maliciously disclosing the accused’s HIV test results will be criminally punishable.

7 What were the reasons for the Commission’s conclusion and recommendation?

7.1 The Commission believed that the intervention is necessary in the light of -

* women's undoubted vulnerability in South Africa today to widespread sexual violence;

* amidst a nationwide epidemic of HIV;

* and in the absence of adequate institutional or other victim support measures.

They submitted that under these circumstances there is a compelling argument for curtailing an arrested person's rights of privacy and bodily integrity to a limited extent to enable his or her victim to know speedily whether he or she has HIV.

7.2 In reaching this conclusion the Commission emphasised that the proposed legislation does not seek to undercut other valid approaches to victim support (such as for instance universal provision of PEP for rape survivors). All it does seek to do is to provide disempowered victims with a further option - which they are under no obligation to exercise.

7.3 In this regard the Commission expressly stated that:

"the proposed procedure is simply a first part of the development of a holistic system of victim support – it is not offered as a final solution or the only solution to all the problems facing victims of sexual offences."

7.4 The Commission supported the view of most of the respondents to its Discussion Paper which saw the provision of comprehensive health services to victims of sexual offences as essential IN ADDITION to the proposed intervention regarding HIV testing of sex offenders. In fact the sense of urgency (aimed at enabling the initiation of PEP) built into the process created, bears evidence to the Commission’s intention in this regard.

 

8 What is the purpose of the legislation: How will it benefit victims of sexual offences?

8.1 In international legal literature, the most significant debates concerning compulsory HIV testing of arrested persons probably centres on the utility and limitations of HIV testing. The Commission examined this from various points of view:

* from the medical and scientific point of view;

* from the perspective of the victim’s physical and mental health;

* with regard to the criminal process; and

* in the context of PEP.

AND concluded that utility and value do indeed derive from obtaining information about the arrested person’s HIV status.

8.2 The Commission believed that in spite of the limitations of testing, the benefit to alleged victims of the knowledge of the arrested person’s HIV status:

* will be immediately practical in that it will enable them to make life decisions and choices for themselves and people around them; and

* that it will also be profoundly beneficial to their psychological state to have even a limited degree of certainty regarding their exposure to a life threatening disease.

These arguments are extensively debated in the Report.

8.3 In coming to this conclusion the Commission accepted:

* First: Scientific evidence that the current forms of HIV testing used in the public sector are 99% accurate if performed according to accepted medical standards;

* Second: that although the theoretical possibility of the arrested person being in the window period exists, the probabilities of such person testing negative because of this factor are small and may be minimised in future by more sophisticated forms of testing. This possibility was therefore not sufficient to deny ALL victims the opportunity of obtaining accurate information on the arrested person’s HIV status.

The Commission further accepted that in view of the well-known fact that one of the primary concerns of victims of sexual offences if the possibility of becoming infected with HIV, information on the arrested person’s HIV status would directly assist them in dealing with the psychological trauma of the sexual offence. Information on their alleged assailant’s HIV status in particular may give victims a sense of control after the attack, decrease their anxiety about possible HIV infection, and enable them to take steps to protect their physical as well as mental health and those of their sexual partners and immediate family.

9 In Conclusion:

9.1 I want to emphasise that the Commission was convinced that, despite its perceived shortcomings and limitations, the proposed intervention will indeed provide victims with a significant benefit (while infringing the arrested person’s rights in only a limited way).

9.2 The Commission was supported in this conclusion by the majority of interested parties and experts who participated in the Commission’s research and reform process.