Rape survivors may soon be able to apply for a court order to test alleged perpetrators for HIV, if a proposal by the South African Law Commission submitted to Justice Minister Penuell Maduna becomes legislation. The Commission, which analyses legal problems and advises the Minister has completed a report on the rights of victims in rape and sexual abuse cases. The report, which has yet to be tabled in Parliament, proposes that rape victims be allowed to order the compulsory HIV testing of perpetrators. At present, compulsory HIV testing is not possible in South Africa, but the Law Commission found that in the cases of criminal acts, the perpetrator forfeited some of his or her rights.
The benefit to victims is not only practical in that it enables them to make life decisions and choices, but it is also beneficial to them psychologically in that they can have a limited degree of certainty regarding their exposure to the disease.
In terms of the proposals, an order for the compulsory testing of an alleged rapist or sex offender may only be made by a court, where it is satisfied there is sufficient evidence of the sexual offence alleged.