HIV/AIDS

Updated 25 June 2014

Non-disclosure of HIV status may constitute rape

Sexually active, HIV-positive South Africans may soon be held accountable for rape if they do not disclose their HIV status to their sexual partners.

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Sexually active, HIV-positive South Africans may soon be held accountable for rape if they do not disclose their HIV status to their sexual partners, according to a press release from attorneys, Bowman Gilfillan.

This follows a recent submission by the Law Commission and the South African Council of Churches (SACC) who propose that present legislation be amended and should include the penalisation of non-disclosure of a person’s HIV status to constitute rape.

“An act of penetration is deemed to be unlawful if committed under false pretences or in respect of a person who is incapable of appreciating the nature of the act,” says Tinyiko Ribisi, Candidate Attorney at Bowman Gilfillan. Ribisi continues, “It is being proposed that if a person is infected by a life-threatening sexually transmissible infection without their knowledge, that this should constitute rape.”

“Even if the recipient is HIV-positive, re-infection and repeated exposure to the virus will place the individual in a more precarious position with regard to their health,” he said.

However, Nikki Taylor of the Women’s Legal Centre in Cape Town has argued that adopting the recommendations of the SACC, would deter people from being tested as this would possibly place criminal liability on the offender if they were to not disclose their status. – (Bowman Gilfillan)

Source: Press release from Bowman Gilfillan

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HIV/Aids Centre

June 2006

 

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Dr Sindisiwe van Zyl qualified at the University of Pretoria before working for an HIV/AIDS NPO in Soweto for many years. She was named one of the Mail & Guardian's Top 200 Young South Africans in 2012.
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