Populism or real protection?

Soon Parliament will enact the long awaited Sexual Offences Bill. The legislation aims to afford complainants “the maximum and least traumatising protection that the law can provide”. Unfortunately, it seems the Bill has lost track of its objectives.

Apart from introducing provisions that enable rape victims to receive post-exposure prophylaxis (PEP), the Bill does not do much to reduce secondary victimisation of rape complainants. Instead, it introduces measures such as compulsory HIV-testing of alleged sexual offenders, which will no doubt be applauded by the public, despite failing rape victims.

According to the Bill, rape victims may make an application for an alleged sex offender to undergo a compulsory HIV test within 90 days from the date of the alleged offence.

The victim must apply to the investigating officer, who must submit the application to a magistrate. The magistrate must order an HIV test if she is satisfied that a sexual offence has been committed and that the victim may have been exposed to the body fluids of the alleged offender. The results of the test will be communicated to the alleged offender and the applicant.

So why compulsory HIV-testing of alleged sexual offenders?

During the drafting process of the Bill, experts debated the implications of HIV-testing. Some underlined the emotional relief that tests potentially provided for victims, others emphasised that these tests empowered victims, and still others argued that rape victims simply had a right to know the HIV status of their attacker. The majority of respondents were, however, opposed to compulsory HIV-testing — and for good reason.

Victims will not benefit from compulsory HIV-testing of alleged sexual offenders. The test will not enable the victim to make “informed medical, lifestyle and personal decisions” as the Bill proposes. Decisions about practising safer sex and about PEP treatment cannot wait for the outcome of the test result. PEP needs to be started within 72 hours after the assault — medical scientists recommend a wait of no longer than six hours.

The Bill implies that the outcome of the alleged perpetrator’s HIV test can assist the victim in the process of making such decisions. This is incorrect and misleading.

The test is an unreliable tool because the accused may be in the window period and test negative for HIV. The window period also explains why an HIV-negative test result cannot comfort or emotionally relieve the victim.

Besides the lack of practical utility, the provisions potentially increase the victim’s vulnerability.

It is not necessary for the alleged offender to have been arrested, or for a warrant of arrest to be issued, in order for a victim to apply for compulsory testing of the suspect. The personal safety of the victim is clearly at risk once the application has been handed in. For a testing order to be implemented, the alleged offender must be found and apprehended. Not only is it unclear whether this can happen within the 90-day timeframe, the Bill also fails to provide any measures to protect the victim during this time. An alleged offender who is not in custody might harass, intimidate or even harm the victim for initiating the compulsory HIV-testing process.

Finally, the Bill allows for the prose­cution of victims of sexual offences. The relevant provisions set out that a person who, with malicious intent, lays a charge in respect of a sexual offence or requests an HIV test of an accused is guilty of a criminal offence and is liable to a fine or imprisonment.

Research indicates that only between 5% and 9% of reported rape cases result in conviction. Accordingly, the vast majority of alleged offenders walk free after the criminal proceedings. Under these circumstances, those who are acquitted and who were forced to undergo compulsory HIV testing may try to sue the victim for damages, or have her/him prosecuted for requesting an HIV test with malicious intent.

Such provision might not only deter victims from applying for a compulsory HIV test, but might even prevent them from reporting the rape. Whereas the blame should be on the perpetrators, the relevant provisions might shift the blame on to the complainants by criminalising their conduct.

During the drafting process of the Bill experts presented these concerns to the justice portfolio committee. But no one wanted to listen. Once again, populist ideas outweigh common sense in politics.

Dr Steffi Rohrs is a lawyer and researcher at the gender, health and justice research unit in the faculty of health sciences at UCT

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