Compulsory testing of alleged sexual offenders – implications for human rights and access to treatment

Abstract

Rape is a major criminal and public health problem in South Africa. Not only does it inflict major trauma on the victim, but it also affects the integrity and dignity of the victim and puts him or her at risk of contracting various sexually transmitted diseases such as HIV and other sexually transmitted infections (STIs).

This paper proceeds with the current definition of rape, the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and the arguments relating to compulsory HIV testing of perpetrators, and post-exposure prophylaxis for rape victims/survivors. It reviews the legal and ethical issues relating to compulsory HIV testing of perpetrators, as well as the access to antiretroviral treatment of rape victims and perpetrators if they are diagnosed with HIV infection.

It concludes that compulsory testing may provide a feeling of reassurance to victims/survivors but does not protect them from infection, since they have to take all the necessary precautions that they would otherwise have taken had they not demanded the HIV test of the perpetrator.