Submission on the Compulsory HIV Testing of Alleged Sexual Offenders Bill, 2003
The arguments and recommendations in this submission are based on a number of human rights and public health considerations. In particular we have focused on the following four areas: the rights of the survivor of sexual assault; the rights of the accused; theimpact of the draft bill on public health measures to limit spread of HIV; and the impact of the bill on state services for survivors of sexual assault. These are not isolated concerns, being interrelated and having an impact on each other.
We wish to state at the outset that we find ourselves unable to endorse the bill in its current form. We do however support the view that legislation that allows survivors of sexual assault the right to ascertain the HIV status of alleged perpetrators may, in certain circumstances, be an important aspect of empowerment and choice, especially for women survivors of rape and sexual assault. We believe however that any such legislation needs to form part of a broader package of measures that addresses the needs of survivors of sexual violence in an integrated and holistic manner.
We also recognise that such legislation is likely to benefit a small number of people. For a number of reasons, more vulnerable groups of women and other survivors of sexual assault are unlikely to benefit from this law. In particular, it will not benefit the following survivors of sexual assault:
- Women who do not report rape and other forms of sexual assault, including women in coercive and abusive relationships who, for various reasons, do not define their experiences as rape;
- Women whose assailants are either not arrested or are arrested outside of the statutory period;
- Women who are already HIV positive;and
- Women who have been subject to gang or group rape, where not all the perpetrators are in custody.
We also note that it is unlikely that such legislation will benefit large numbers of male survivors of sexual violence. The majority of men who survive sexual assault do not report their experiences because of the high level of shame and stigma attached to these crimes, and will thus be unable to access the provisions of such legislation. It is also not clear whether such legislation will benefit men in prisons who are subject to repeated sexual violence, unless it is linked to measures to protect survivors of sexual violence in prisons from further assault and they are able to access pos-exposure prophylaxis and related services.
Despite the small number of people likely to benefit from legislation allowing for the compulsory testing of alleged perpetrators, we believe that the right to apply for testing is an aspect of choice, enshrined particularly in the rights to freedom and security of the person (s 12 of the Constitution) and dignity (s 10), that some persons may wish to exercise.