Yesterday cabinet approved draft legislation that would provide for testing of the HIV status of rape suspects. The issue at hand reflects the challenge that the criminal justice system has in balancing competing rights and interest. While the suspect is presumed to be innocent and has the rights to bodily integrity and privacy the victim of sexual assaults also has the right to know whether the accused has HIV. It is necessary for the psychological state of the victim and enables them to make life decisions and choices for themselves.

Finding the balance between these competing interests are complex but having regard to the nature of sexual violence in our society and the far reaching consequences of the HIV pandemic we support the proposals. In our view they constitute a reasonable and justifiable limitation of the rights of the accused, in particular the safeguards in the proposed legislation, namely, the testing be victim initiated, that testing only happens in pursuance of a court order. That the results of such testing be communicated only to the victim, the arrested person and that results not be used in any criminal or civil proceedings provide in our view the necessary safeguards that would avoid an abuse of the process.

ISSUED BY THE SAHRC
24 October 2002
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