Compulsory HIV Testing of Alleged Sexual Offenders Bill: hearings

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
5 February 2003
COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL: PUBLIC HEARINGS

Documents handed out:
Centre for the Study of Violence and Reconciliation submission
Statistical Evidence on the Impact of Appeals on the Administration of Justice: Follow-up
Report
Statistical Evidence on the Impact of Appeals: Follow-up Report
Constitutional Perspective on the Compulsory HIV Testing of Alleged Sexual Offenders Bill
Compulsory HIV Testing of Alleged Sexual Offenders Bill
HSRC Study on HIV/AIDS
Background to the Bill by the South African Law Commission
AIDS Law Project submission

Chairperson: Adv JH de Lange (ANC)

SUMMARY
In 1998, the Law Commission was asked by the Justice Portfolio Committee to investigate the possibility of legislating the compulsory testing of sex offenders for HIV, with a view to providing victims with these test results. Increasing pressure was being brought to bear upon the authorities to take action against the deliberate transmission of HIV/AIDS. Having completed the investigation, the draft Bill was now being discussed by various role-players, some of whom presented their views to the Committee during the public hearings.
The Bill was supported by the Commission on Gender Equality, Department of Justice and Law Commission. The Centre for the Study of Violence and Reconciliation presented a submission on behalf of Rape Crisis and questioned the value and utility of the Bill.

The Aids Law Project did not endorse the bill in its current form. They agreed with its purpose, namely to allow survivors of sexual assault to ascertain the HIV status of alleged perpetrators, they felt that the legislation has to form part of a broader package of measures that addresses the needs of survivors of sexual violence in an integrated and holistic manner.

MINUTES
The Chairperson welcomed the attendance of so many role-players, saying that their submissions were absolutely vital to assist the Committee in making informed decisions in its legislative role.

Centre for Study of Violence and Reconciliation submission
Ms Lisa Vetten: Centre for the Study of Violence and Reconciliation, had compiled a submission to represent the response of Rape Crisis to the proposed Bill. She questioned its value and utility. In her submission she explained that It is necessary for post-exposure prophylaxis (PEP) to be administered to the victim within 72 hours after the rape. The perpetrator would therefore have to be arrested within 72 hours of the rape. There is a possibility that this legislation could open the rape victim to further victimisation. Should her application be construed to be malicious, then punitive measures will follow such application. Given the low conviction rate for rape, victims would be disadvantaged.

Furthermore, according to Clause 5(e)(ii), to give the results of the HIV test to the victim and then leave without providing counselling, would be detrimental to that victim. Counselling was an integral part of the coping process for rape survivors. This legislation could benefit only a small number of rape survivors, since only 46% of rapists are caught. Her organisation opposed the Bill, because they felt it would serve only as an "icing on the cake measure". It should not be a priority at this point.

Discussion
The Chairperson stated that the matter of counselling would be addressed very carefully by the Bill. Should the Bill be passed, who should provide the victim with the results?

Ms Vetten responded that the Health Department is currently drafting legislation, the Sexual Offences Bill, and suggested this issue could be addressed there. A holistic approach to health care needs was required, as opposed to reducing what had happened to the victim to only one particular thing. She cautioned against the possible error of creating fragmented pieces of legislation. Without the necessary health care, how does the victim deal with the knowledge she is given?

Mr T Delport (DP) stated that without this bill, it will be impossible to test persons accused of rape for HIV. This will be information which the victim must deal with. There was a limit to what the Committee could legislate, and he thought that what Ms Vetten was suggesting would go beyond the scope of their legislature.

Mr S Swart (ACDP) requested Ms Vetten to explain what she meant by "a false sense of security". He suggested that she consider amendments to the Bill in order to improve it. He made specific reference to Clause 6, which states that test results may not be used in litigation, and Clause 11, which warns the victim against malicious intent.

Ms Chohan-Khota (ANC), raising the issue of probable cause, mentioned that rapists who rape knowing that they are HIV positive, necessarily open themselves up to murder charges. Here was an area that needed to be looked at for possible amendments, since it would be crucial to disclose the test results in court.

The Chairperson mentioned that this form of law-making, in which the legislature identifies a particular act as criminal, while leaving the courts no access to prosecute this crime, is self-defeating.

The Chairperson asked Ms Vetten whether rape survivors themselves were opposed to this proposed legislation, and if they thought it was premature.

Ms Vetten responded that this was the feeling of the organisation, not necessarily that of rape survivors. She conceded that yes, they wanted to know the HIV status of their attackers.

Mr M Masutha (ANC) felt that waiting for the Health Department to pass its Sexual Offences Bill would leave a vacuum, leaving rape survivors hanging in the balance. It could take another year before that Bill is passed. He suggested that, though the Bill might not be perfect in its present form, with the passing of time, certain aspects of it could be augmented by the Minister, as the need is perceived.

A member of the Rape Crisis team responded to Mr Swart's question on the "false sense of security" the Bill would give to rape victims. Just because a test shows a negative result, that does not mean that the survivor is negative. It could merely mean that the perpetrator was in a "window period", which can last for up to six months.

With regards to waiting on the Health Department's legislation, Ms Vetten stated that the Department could be compelled to produce legislation by a certain date. In terms of health care, women want to know the HIV status of the perpetrator, because they want to be able to do something with this knowledge, such as making use of PEP.

The Chairperson stated that there were many social consequences for the victims of rape. If, for instance, the person is in a relationship, this brings added strain. He took issue with Ms Vetten's standpoint, which seemed to suggest that rape survivors would only take medication once they know that their assailant is HIV-positive. He felt that anyone who had experienced rape should be started on medication immediately.

Commission on Gender Equality submission
The Commission on Gender Equality, with support from Mr Geoff Budlender, of the Constitutional Litigation Unit, Legal Resources Centre were requested by Adv de Lange to brief the Committee on the confidentiality stipulation with regard to the inadmissability of test results in court proceedings.

In her opening statement, Commissioner Rashida Manjoo stated that the Commission supported the Bill. All legislation had potential implications and problems. In a recent workshop there was a great deal of opposition expressed to the Bill. Asked by the Chairperson if any of those opposed were themselves rape survivors, Commissioner Manjoo said their response was informed by the experience as providers of services in the area. She had no knowledge of their personal experience.

Ms Suraya Williams: Parliamentary Officer, CGE, suggested the following areas for attention in the Bill: the relevant authorities (magistrates, members of staff and the police) must be trained on the implications of the new Bill in order to implement it successfully. Secondly, the implementation of the Bill would require added funds, for example to pay for the services of an additional clerk of the court, for the keeping of records. The Commission also felt it important that all police stations in the Western Cape have people available at all times who understand Xhosa, Afrikaans and English, to circumvent the language barrier. A fourth area in question is the matter of the alleged perpetrator's right to a fair hearing, which, because of the stipulations of the Bill, are infringed. Lastly, the public needs to be educated on the provision of PEP for rape survivors.

The Chairperson suggested that the Health Department could be called upon to produce a booklet with the relevant information.

Ms Williams acknowledged that the Bill does redress the damaging consequences to rape survivors. Not all women would benefit, but they should have the choice to make use of the option. Certain rights would be infringed, but in this case, the Commission felt it was justified.

Mr Geoff Budlender stated that the Bill infringes the individual's rights on two counts: taking a person's blood for HIV-testing without their consent is an invasion of bodily and physical privacy; disclosing a person's HIV status to someone else without that person's consent is an invasion of privacy.

However he added that no right was absolute. Rights are always in tension with each other, and a large part of constitutional litigation involves balancing these rights. Commenting on what the Bill calls "malicious" intent, in terms of the Bill, it cannot be seen as "malicious" if the survivor informs their partner, counsellor or investigating officer.

He stated there was no real benefit in the perpetrator being tested a year after the crime. The rape survivor should really be tested immediately.

Both Ms Chohan-Khota and Mr Delport pointed out that the initial physical invasion (taking of the blood), being of a lesser nature than the latter (involving disclosure), could serve as notice given to the perpetrator. After this he could appeal to the Courts for an interdict against disclosure, if he so wished.

Mr M Masutha (ANC) raised a question as to the hierarchy of rights, and whose rights had greater priority. The fact that the victim's right to life is under threat should weigh heavier than the rights to privacy of the alleged perpetrator, who may not have been the offender. However, the suspect's privacy is being pitched against the life of the rape survivor. He felt it was obvious whose right should receive greater priority.

On the matter of the use of information regarding the suspect's status in criminal proceedings, Mr Budlender mentioned these contraventions: the contravention of privacy in being compelled to give self-implicating evidence; and the invasion of personal integrity. He suggested protecting the person's privacy until there are criminal proceedings.

In response to this, the Chairperson suggested possibly two grounds for which HIV-testing could be applied: when asked for by the victim and for the purposes of criminal proceedings.

There are three relevant periods after a rape has taken place: the first 72 hours, in which knowing the perpetrator's HIV status can save the survivor's life: it comes down to her life versus his invasion of privacy. After the 72 hours, in which peace of mind and knowledge of how to act is imperative for the victim. Here, it is no longer a question of saving her life, as it is too late for precautionary measures. Rather, at this stage, it is possibly a matter of saving the sexual partner's life.

Responding to Mr Masutha's point on the hierarchy of rights, Mr Budlender stated this could be a tricky issue, although the Constitution does place a high premium on the right to life.
The Chairperson thanked the presenters and enquired why the following authorities had not made submissions: the Prosecuting Authority, the Department of Health, South African Police Services.

Briefing by Department of Justice on Impact of Appeals
The Department of Justice, represented by Dr J D'Oliveira briefed the Committee on the the impact of appeals.

He mentioned the differentiation between the services offered in the Regional courts, and in the Magistrate's courts. Some debate centred around the possible lack of adequate representation for the defendant, should he appeal to a magistrate against the victim's application. Dr D'Oliveira was of the opinion that procedures outlined in the Bill compared well with normal procedure in the courts.

On the submission of statistics on the impact of appeals on the Department, it was felt there were not sufficient statistics gathered to make an informed comparison of the impact of appeals over the past number of years. There had been three significant periods in the country's history with regard to leave to appeal. The Committee needed to know statistically how those periods compared in order to assess possible trends for the future, especially should this Bill be passed.

Afternoon session
Department of Justice and Constitutional Development submission
Ms Teresa Ross, representing the Department of Justice, raised the following issues:
-Background information on the Bill.
-How it changes our current law, emphasising specific points in the proposed process
-The reasons for the Commission's recommendations and the envisaged purpose of the legislation. (please see submission attached)

The Chairperson noted that Clause 6 of the Bill, when read with S37 of the Criminal Procedure Act, creates an anomaly. His concern was that this clause excludes the application of Section 37, but that this is pointless because Section 37 could be used on its own anyway, without reference to the Bill. He failed to see the difference between the two and asked why the SALC had drawn a distinction between the Section 37 and Clause 6. In this regard, he wanted to know why the one section rendered evidence inadmissible while the other did not.

Ms Ross explained that the distinction is made for evidentiary purposes and does not provide for disclosure to the victim, while evidence considered by the present Bill does provide for such disclosure.

Ms Ross suggested that they could perhaps prepare an alternative draft.

Ms Ross concluded their submission by stating that this Bill is by no means the end of the road and is rather the first part in the development of holistic system of victim support. The Bill has practical advantages and at the same time is beneficial to the psychological state of the victims.

Discussion
The Chairperson raised two concerns. The first was that Clause 4 expressly denies the alleged offender the option of an appeal, but does not mention review at all. The alleged offender therefore has recourse to the review process. Why is appeal and not review excluded in the bill? He was concerned that the review process could delay proceedings just as much as the appeal process and wanted to know what the purpose was behind this omission.

Mr de Lange (Department of Justice) stated that the common law grounds for review are very limited and there is, therefore, a big distinction between the appeal and the review process. It is therefore easy to justify the exclusion of appeal, but the exclusion of both appeal and review could open up the bill to a constitutional challenge.

The Chair was not convinced that review should be excluded.

The Department then re-iterated the fact that the possibility of review is small since as far as this process is concerned, there is no possibility for audi alterem partem to be used as a ground of review.

The Chair stated that even if appeal and review were excluded, the alleged offender would still have the option of an interdict and this could delay the process just as much as appeal or review.

The Department stated that they had originally included review in the Bill, but had left it out in order to ensure the constitutionality of the bill.

The second issue raised was the 60-day time period in Clause 5. The Chairperson asked how this time period had been decided.

Ms Ross stated that medical evidence had shown that reliable AIDS tests could be taken between 30 and 90 days after the offence had occurred and they had simply chosen a middle ground: 60 days. The primary reason for choosing the 60 days was to try and limit the Bill's infringement on the rights of the alleged offender.

The Chair stated that whatever the incubation period is, this should be the period within which tests could be taken from the alleged offender. Based on the present information, this is 90 days. The period in which tests could be taken from the alleged offender should be as long as possible. He stated that the Health Department should be consulted in this regard.

Mr de Lange pointed out that the Health Department had recommended 90 days.

Miss Chohan-Kota (ANC) then took issue with the SALC, stating that they had been approached for a response on the Bill as far back as 1998 and had not done much. Their response today simply raised peripheral issues and was in essence unsatisfactory. The SALC had not interacted with the Committee since receiving the request to investigate the possibility of testing offenders. In order to make their work more worthwhile, there should be constant interaction between the committee and the SALC.

Mr Jefferey (ANC) then stated that it is important for the SALC to bear in mind the intention with which the Committee referred the work to them in the first place. This would ensure that any work done by them would not be redundant.

A Member was concerned that the definition of a sexual offence in the act is a very limited one and could be problematic in that it is not very useful. It refers to sexual violence. What is this? He noted that sexual crimes are both psychological as well as physical. The definition in the Bill does not adequately deal with this and therefore needs to be altered.

Mr Jeffery then raised a question over the definition of bodily fluids, stating that these were expressed in the negative. It stated what is not bodily fluids, rather than giving examples of what they are.

A representative from the SALC responded that this makes the definition as wide as possible and it also makes the legislation more elegant.

The Chair asked why a distinction had to be made between bodily fluids and bodily specimens.

Ms Ross cleared up this issue by stating that bodily fluids are those fluids which expose the victim to the risk of catching HIV while a body specimen is a sample taken from the victim for the purpose of determining whether or not the victim is HIV positive.

Aids Law Project submission
The Aids Law Project, represented by Ms Liesl Gernholtz, submitted that they were unable to endorse the bill in its current form. They agreed with its purpose, namely to allow survivors of sexual assault to ascertain the HIV status of alleged perpetrators. However, they felt that the legislation has to form part of a broader package of measures that addresses the needs of survivors of sexual violence in an integrated and holistic manner.

Ms Gernholtz submitted that, in order to ensure that the Bill is constitutional, it is essential that the alleged offender first be given the choice of whether or not to have an AIDS test. If he refuses, then he can be forced to undertake such a test. It was also important that the alleged offender undergo pre and post test counseling and the Bill must make provision for such counseling. It was stressed that at this stage, the person in question is an alleged offender and as such his rights must be protected as much as possible.

Discussion
Ms Chohan-Kota, acting Chairperson, stated that the Bill, as it stands, survives the proportionality test and, unless it can be shown that there is a constitutional imperative for including such clauses in the bill, it is highly unlikely that it will happen. The rights of the alleged offender are already protected to the extent that the Bill includes legal procedures/safeguards to protect the dissemination of information.

Mr de Lange brought it to the Committee's attention that draft regulations for the Bill had already been drafted. These regulations contained further measures to ensure that the rights of the alleged offender are protected as much as possible. One such measure was a compulsory notice to be handed to the alleged offender prior to aids testing, informing him of what AIDS is about, the test and so on.

Adv Schmidt (DP) asked the Aids Law Project whether they thought that the Bill should include a scenario where two consenting adults, A and B, engaged in sexual intercourse. Unknown to B, A has AIDS and had B known that A has AIDS, would not have consented. He also asked their view on the term 'sexual violence' in the Bill.

Ms Gernholtz stated that the Bill should apply simply because in such a scenario consent is vitiated and as such, would fall under the criminal law definition of rape. The Bill would apply. As to the definition of 'sexual violence', their submission was that this definition is too broad and therefore problematic.

Mr Jeffery was interested to know why the Aids Law Project thought that this legislation must be integrated with other similar legislation and why it could not be kept separate. As a matter of policy, he was concerned about such proposals.

Ms Gernholtz responded that there are more important services for rape survivors and if this Bill was not part of those, then it had the potential to draw much needed funds away from such survivors. For this reason, legislation should be part of the reform of sexual offences and should not be separated.

Adv de Lange then stated that if one takes the Bill as it stands now, the extra costs it would entail for the state would be minimal. This was especially so if one considered the fact that there are only 50 days from the day of the rape in which an AIDS test can be taken. Only a very small number of alleged offenders would be subjected to such a test.

Ms Gernholtz agreed that the cost would not be massive, but was at pains to highlight the fact that they were dealing with a sector that does not already work well for women.

The Chair then pushed the Aids Law Project to factually back their assertion that such a Bill would deviate funds from other important services. He also questioned the presenter on whether a rape victim would indeed not welcome such a deviation of funds. He asked her if she personally knew of any rape-victims who would prefer not to have a deviation of funds in order to carry out the purposes of the present Bill.

Ms Gernholtz acknowledged that there was no direct factual evidence to support their assertion, but that this assertion is based on their experience and their work. In response to the last question, the response was affirmative.

The Chair then closed the public hearings, stating that while he and the Committee would take into consideration the submission that a more integrated approach is required, he did not buy the argument at present. He also stated that practically, he did not think such an integrated approach is possible. Finally he stated that although they gave the Aids Law Project a hard time, the Committee welcomed such submissions. The Committee did not have its own research facility and they therefore appreciated submissions from organizations such as the Aids Law Project.

The meeting was adjourned.