Chapter 9

Sexual violence and HIV testing

A victim of sexual violence can apply to court for an order to have the person who committed the sexual violence have an HIV test and for the results of the test to be given to the victim. This application can also be brought by any person who has an interest in the victim’s well-being or the investigating officer investigating the case. The application must be brought within 90 days after the act of sexual violence was committed.

If the person is successful with the application, the investigating officer must take the person who committed the act of sexual violence for an HIV test. The HIV test results must then be given to the victim in writing. The HIV test results are private and confidential and should not be disclosed to others.

PROBLEMS WITH COMPULSORY HIV TESTING

The provision for HIV testing was introduced to protect victims of sexual violence. There are however some problems with this. If the person who committed an act of sexual violence was tested for HIV during the window period his body will not indicate that he has contracted HIV yet. This means that the test results can indicate that he is HIV negative even though he is HIV positive. The negative result could therefore be false. The false test results can lead to the victim believing that she did not contract HIV and therefore does not need to practice safe sex or use anti-retrovirals. The window period can last for up to 4 to 6 weeks.

POST-EXPOSURE PROPHYLAXIS (PEP)

PEP is an antiretroviral treatment that is used to prevent a person from contracting HIV after having possibly been exposed to the virus. PEP is however not effective in all instances. It must be taken within 72 hours after contracting the virus and can have better results if taken 48 hours after possible contraction of the virus. It is very important to ask for the PEP as soon as possible but within 72 hours of the sexual assault or rape.

WHAT DOES THE LAW ALLOW IN TERMS OF PEP?

A victim is entitled to:

  • Receive pep free of charge at a designated public health establishment
  • Free medical advice on pep before using it
  • The list with the names, addresses and contact details of designated public health establishments providing PEP

If the victim (or a person who has an interest in the victim’s well-being) laid a charge with the police regarding a sexual offence or reported the sexual offence to a designated public health establishment within 72 hours after the sexual offence took place, the police member, medical practitioner or nurse to whom the sexual offence was reported must inform the victim of:

  • The importance of getting pep within 72 hours of having been exposed to HIV
  • The fact that a victim can obtain PEP free of charge from a designated public health establishment