Inter Press Service - October 25, 2002
Farah Khan

South Africa has one of the highest rates of rapes in the world and the second highest rate of AIDS infection, according to the United Nations.

These two trends mean that rape survivors face not only the trauma of rape, but also the spectre of AIDS infection. Now, the "Compulsory HIV Testing of Alleged Sexual Offenders" draft law provides that where a rapist is arrested, his victim can apply for him to be tested for HIV.

The law is said to provide peace-of-mind. "The benefit to alleged victims of the knowledge is not only immediately practical in that it enables them to make life decisions. It is also profoundly beneficial to their psychological state to have even a limited degree of certainty regarding their exposure to a life-threatening disease," said the South African Law Commission.

The law is also an attempt to deal with the so-called virgin myth, where researchers have reported the growing trend of child rape in pursuance of the belief that sex with a virgin will cure AIDS.

In addition, another trend of "revenge rape" where men who are HIV-positive use rape as a means to transfer the disease has also been noted. The Law Commission says the law is a response to such "deliberate transmission" of the disease.

Cabinet's approval of the law this weekend has provoked a mixed response: most organisations and activists have welcomed it as a means to empower rape survivors and ease some of the trauma. Others question its value in a country, where not even one in three rapists is caught annually.

"Any move to put the rape survivor in a more empowered position is welcomed," says Kelly Hatfield, director of People Opposing Women Abuse.

The official opposition, the Democratic Alliance, welcomed the draft law, but said it needed swift government action to provide anti-retrovirals to rape survivors to be truly beneficial. Government has committed itself to providing the potentially life-saving drugs to rape victims, but the provision has been haphazard, with the drugs not available nationally and with ease.

"The bill will entrench the right of assaulted victims for speedy treatment through prophylaxis," says Sandy Kalyan of the Democratic Alliance. Prophylaxis is anti-AIDS drug treatment.

The law provides that rape survivors can request the test provided there is proof that the arrested person committed the rape. Only a court can authorise the test and the results are available only to the survivor and the alleged perpetrator.

As welcome as the legislation is, its drafters have had to tread with particular care because the legislation has dealt with colliding rights, says Vinod Jaichand, the national director of Lawyers for Human Rights. The victim's rights have been placed above those of the privacy rights of the alleged rapists.

"The law is a reaction to the high rate of sexual violence and of HIV. It's what is regarded as a merited intervention into privacy rights," says Jaichand.

Gender activist Lisa Vetten of the Centre for the Study of Violence and Reconciliation says the law may be too small a step to make much difference. "The motivations and intentions of the new law are good, but we have to consider whether the money could not have been better spent."

She says it would have made better sense for the state to ensure that drug treatment is universally available and to focus resources on improving the criminal justice system.

Research has shown that arrest and conviction rates for rape are between 30 percent and 50 percent nationally, which means that most perpetrators are not even brought to book. Her work also shows that while the country has state of the art laws and policies to deal with rape, the practical implementation has been hobbled by a lack of resources.

Special sexual violence police units are often under-resourced, both with regard to human resources (enough people) and physical resources like cars and equipment. Vetten says the drafters have also not put enough thought into the efficacy of testing · window periods mean that rape survivors can show up a negative result, but still be HIV-positive.

State pathology laboratories have large backlogs and the new law does not tackle how it will deal with such institutional hurdles. Getting test results to survivors fast is crucial. "The idea is a good one, but the implementation and practice will be difficult," says Vetten.(END/IPS/HD/HE/FK/MN/02)

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