Compulsory HIV testing of alleged sexual offenders – a human rights violation

Abstract

Chapter 5 of the Sexual Offences Amendment Act strives to achieve two objectives. It makes post-exposure prophylaxis (PEP) accessible to victims of sexual assault, whether a charge is laid or not. In addition, it allows for the victim or the investigating officer to make application for the forcible disclosure of the HIV status of the accused, within 90 days of the assault. It is argued that the provision of PEP to victims of sexual assault is required by section 27(1) of the Constitution, and is an obligation that the state should assume and discharge efficiently and ably. However, it is considered that the provisions compelling the accused to disclosure his HIV status to the victim and investigating officer serve no medical purpose, and seriously infringe a number of important constitutional rights. The authors go on to argue that a magistrate has to be satisfied that a prima facie case has been made that the accused sexually assaulted the victim before compelling disclosure. Given the seriousness of this finding, it is very likely to be robustly contested by the accused and consequently victims may have to testify twice, initially at these proceedings and subsequently at the criminal proceedings. They argue that the medical, legal and support services provided to the victim should be upgraded and improved. The authors identify some clinics that are operating with reasonable efficiency. They argue that the simplistic solution of compelling the accused to disclose his HIV status is aimed at making up for the inadequacies of policing and the inability to prosecute effectively. They also submit that the test results may bring false hope and result in poor choices being made regarding treatment. They submit that the testing provisions may not be in the medical best interests of the patient and the provisions are not reasonable and justifiable in an open and democratic society and consequently unconstitutional.