HIV testing for rape suspects

2003-02-05 23:25

Adrian Lackay

Cape Town - Under the constitution, the rights of rape victims weigh heavier than those of the alleged rapist and this should be the deciding factor for parliament to pass legislation that will make HIV testing compulsory for the accused.

This was what Geoff Budlender, a lawyer from the Legal Aid Centre, told the justice portfolio committee during the public hearings into the controversial new draft legislation that will initiate compulsory HIV testing for alleged sexual offenders.

The crux of the complicated legal argument centres on whether the right of the victim to know the HIV status of the alleged rapist infringes on the alleged attacker's constitutional rights to privacy, physical integrity and dignity.

Budlender admitted the draft legislation did, indeed, impose on the offender's rights, although this infringement could be justified under section 36 of the constitution, whereby no law is absolute.

He said the draft legislation might bring about a change in public perception and could establish that the South African legal system provided more protection to victims than perpetrators.

"This (the draft legislation) will pass the constitutional test because the limitations on these rights will be defendable," Budlender said.

He said it could help victims who wanted to face the trauma of their attacker's HIV status.

However, some non-governmental organisations are opposing the concept legislation.

The Centre for the Study of Violence and Reconciliation supported the draft legislation in principle, but said it was an "inadequate" reaction to the problem of HIV transmission within the context of sexual violence.

Lisa Vetten, gender co-ordinator at the centre, said the draft legislation was being considered "in isolation of other attempts" to create a "comprehensive package" of support services to victims of sexual assault.

She was concerned about that the legislation did not provide for counselling when the victim was told of the attacker's HIV status.

However, it did put victims in a position to decide on the use of antiretrovirals where perpetrators were arrested within 72 hours, said Vetten.

She crossed swords with committee chair Johnny de Lange on several occasions when she referred to the draft as "a piece of fragmented draft legislation that did not provide holistic support to rape victims".

The Aids Law Project voiced a similar opinion and said that, although the legislation was acceptable in principle, it would benefit only a limited number of victims.

- Die Burger