Rape and HIV infection are closely linked. This has been recognised in the new Sexual Offences Bill, passed by the National Assembly on 22 May 2007. The Bill - full name Criminal Law (Sexual Offences and Related) Matters Amendment Bill, includes clauses that deal with the dangers of rape and HIV infection.

The Bill broadens the definition of rape to include forced anal or oral sex, irrespective of the gender of either the victim or the perpetrator.

It thus recognises male rape, which was hitherto classified as indecent assault, and also widens the definition of rape to include sexual penetration with an inanimate object or animal genitalia.¹

The Bill acknowledges the high incidence of sexual offences committed in South Africa. According to statistics released by the South African Police on rape for the period 2004/2005, 55 114 cases of rape were reported. Since it is estimated that only 1 out of 9 rapes is reported, the number of rapes is far larger. The figures do not include those for indecent assault - 10 123 over the same period. In future, in terms of the new definitions contained in the Sexual Offences Bill, very many of these indecent assault cases will be treated as rape.²

Recent statistics indicate that about 5.4 million people out of a total population of 48 million in South Africa are infected with the HI virus.³ It is therefore appropriate that HIV was taken into account while drafting the new legislation.

Rape as a risk factor for HIV infection⁴
Violent or forced sex can increase the risk of transmitting HIV to both women and men. This can occur in the following ways:

• In forced vaginal or anal penetration, abrasions and cuts commonly occur, thus facilitating the entry of the virus into the bloodstream.
• Those who suffer anal rape are also considerably more susceptible to HIV since anal tissues can be easily damaged, allowing the virus an easier entry into the body.
• Adolescent girls are particularly susceptible to HIV infection because their vaginal mucous membrane has not yet acquired the cellular density necessary to provide an effective barrier - this develops in the later teenage years.

Treatment needed after rape
Sexual violence causes physical and psychological trauma. After a sexual offence, the victim/survivor may require medical and psychosocial treatment for the following:⁵

• HIV - including pre-and post-test counselling, and post-exposure prophylaxis (PEP);
• the possible transmission of sexually transmitted infections;
• injuries to any part of the body;
• the prevention of pregnancy;
• the termination or management of pregnancy;
• psychological shock (including post-traumatic stress disorder, disturbed sleep and eating patterns, anxiety and depression); and
• disturbance in relationships.

The Bill aims to provide survivors of rape and sexual assault with the maximum and least traumatising protection the law can provide. But it contains few measures providing for medical treatment and counselling.

The only medical service to survivors proposed by the Bill is post-exposure prophylaxis (PEP) to prevent HIV-infection.⁶ However this is nothing new, PEP having been available since a cabinet decision in 2002. For this to be effective, survivors should be able to access it within 72 hours. 

The Bill does make provision for compulsory HIV testing of alleged offenders. Survivors of rape or sexual assault may obtain a court order for alleged offenders to undergo compulsory HIV testing and for the results to be revealed to them.

Two concerns relating to the Bill are:

1. Most of the measures proposed by the South African Law Reform Commission (SALRC) report that were intended to support and protect survivors in court have been removed. It is therefore highly unlikely that the Bill will significantly impact the trauma experienced by complainants in court.
2. The Bill does not recognize the need for counselling to deal with the psychological trauma, or treatment to prevent pregnancy and sexually transmitted infections. Civil society has raised concerns that omissions such as these, will subject survivors to trauma, and conviction rates are unlikely to increase.

A previous draft of the Bill also sought to make an impact on the HIV/AIDS pandemic, by stipulating that a person who intentionally fails to disclose to the person with whom they have intercourse that they have a life-threatening sexually transmitted infection is guilty of unlawful conduct. This would have protected women, whether married or not, who are coerced into unprotected intercourse despite the HIV positive status of their partners.⁷ However this clause was not included in the Bill that has been passed. This is in fact a good thing because it may have put women at risk. Given that women are more likely to know their HIV status (usually as a result of ante-natal testing) and that a fair number of women do not disclose to their partners out of fear of being abandoned or abused, they could very well have been charged with this new offence. Further, it is possible to use existing legislation for attempted murder, for example, to prosecute those who knowingly expose others to the virus.

Download the Criminal Law (Sexual offences and related matters) Amendment Bill (pdf format, 878 kb)

Sources

1. http://www.pretorianews.co.za/index.php?fArticleId=3846134
2. Biggs M. 31 July 2006. http://www.net-workingwomen.com/editorial.php?editorialid=22
3. Dorrington R E, Johnson L F, Bradshaw D and Daniel T. The Demographic Impact of HIV/AIDS in South Africa. National and Provincial Indicators for 2006. Cape Town: Centre for Actuarial Research, South African Medical Research Council and Actuarial Society of South Africa.
4. http://www.svri.org/hiv.htm
5. Mills S. 12 December 2006. The new Bill: a guide.
   http://www.mg.co.za/articlePage.aspx?articleid=293074&area=/insight/monitor/
6. Editorial. 24 May 2007. The first step in a much longer journey. http://www.mg.co.za/articlePage.aspx?articleid=309399&area=/insight/insight__editorials/
7. http://www.inspiringwomen.co.za/index.php?option=com_
   content&task=view&id=366&Itemid=45

Author: Ms Mary Mattheyse
E-mail: afroaidsinfo@mrc.ac.za
Date: June 2007