Chairperson, this Bill extensively and comprehensively reviews and amends all aspects of the law and its implementation relating to sexual offences. It deals with these in a single piece of legislation, based on the values of human dignity, equality and nonsexism as stated in the Freedom Charter of our people, which today lies at the heart of our constitutional democracy.
Chapter 5 of the Bill provides for certain services to certain victims of sexual offences, including affording a victim of certain sexual offences the right to require that the alleged perpetrator be tested for his or her HIV status.
I am mindful that HIV/Aids is a heavily contested terrain in South Africa today. It is not my intention to enter this discourse, save to say that our government's response to the challenge of HIV/Aids is not as narrow as in your medical model but a holistic and comprehensive approach, taking into consideration also the issues of underdevelopment, poverty and the status of women in particular in our society.
My purpose here is to explain, firstly, chapter 5 in a practical way so that victims might clearly understand the possible risk of HIV infection which they are exposed to in an encounter with the sexual offender and, secondly, what medical treatment and services they are entitled to as a result of such a violent encounter. Thirdly, the process provided for in this Bill to be followed affords victim the opportunity of knowing as soon as possible whether he or she might have contracted HIV. Fourthly, there are the constitutional implications of the rights to privacy, bodily and psychological integrity, and the right to access health care services and, fifthly, there is the right of every accused person, including an alleged sexual offender, in this regard to be presumed innocent until a court of law proves otherwise.
Without any doubt, the prevalence of sexual violence against persons, especially women and children, and the Aids pandemic in our country create the real possibility that sexual offenders having HIV might infect their victims with the virus when they commit sexual assaults of a penetrative nature.
Because our government is concerned about the risks which victims are exposed to, the Bill provides for a legal procedure for the compulsory testing of alleged sexual offenders. In essence, chapter 5 makes provision for medical treatment and advice for the victim, compulsory HIV testing of the alleged offender, procedures to be followed to procure such tests, the role of third parties with a material interest in this process and maintaining the confidentiality of the information.
In this regard the sexual offences Bill entitles the victim who has been exposed to risks of infection with HIV as a result of sexual assault to receive, at state expense, a post-exposure prophylaxis or Pep treatment at a health facility designated by the Minister of Health. It also entitles a victim to get free medical advice on the administering of Pep and to be supplied with a list of public health institutions which provide these services.
With regard to the application for compulsory HIV testing of the alleged offender, the victim or an interested party on behalf of the victim, may make an application to the magistrate for a court order directing that the alleged offender be tested for HIV.
If an interested party is involved, such an application must be with the written consent of the victim unless the victim is under the age of 14 years, mentally disabled, unconscious, under curatorship in terms of an order of court or a person whom the magistrate is satisfied is unable to provide the requested consent. The magistrate must consider the application in chambers as soon as possible. Moreover, a police official may, for the purposes of investigation, apply to the magistrate in whose jurisdiction the offence occurred for an order for compulsory HIV testing.
All of this may be done in the absence of the victim if the magistrate is of the opinion that there is prima facie evidence and that it is in the best interests of the victim.
The results of the test may not be communicated to any person other than, firstly, the victim or an interested person as defined in the Bill; secondly, the alleged offender; and thirdly, the investigating officer and, where applicable, a prosecutor.
The confidentiality of the results must be maintained and any test obtained with a false charge is an offence liable on conviction to a fine or imprisonment not exceeding 3 years. Disclosure of the results with malicious intent or in a grossly negligent manner is an offence, liable on conviction to a fine or imprisonment for a period not exceeding 3 years.
Inspired by a vision to create and build a society based on the values of human dignity, freedom, equality and nonsexism, as expounded in the Freedom Charter, the ANC believes that incidents of sexual violence, particularly against women and children, undermine this vision.
Central in this regard is the right to freedom and security of the victim which includes, amongst other things, the right to bodily and psychological integrity, and the right to access health care services.
Sexual violence in the context of a serious HIV/Aids pandemic, as is the case in South Africa, severely undermines the victim's freedom, dignity and security of his or her person. This is the context in which the right of access to the HIV status of the alleged offender should be approached and assessed.
It is important to understand that the right to determine the HIV status of the alleged offender in appropriate circumstances would empower victims to gain some control over their lives at a time when they have been violated by sexual assault. It is precisely because of this that knowledge of the HIV Status of the alleged offender by the victim should be approached and understood.
It will inform and enhance the choices that victims have to make about the rest of their lives. It must be emphasised that there are real benefits for the victim in having knowledge about the HIV status of an alleged offender.
For instance, when there is the possibility of infection, it would assist the victim in making further choices as to whether or not to continue the post-exposure prophylaxis, or Pep treatment and also how they conduct themselves with regard to matters of sexual and reproductive activities.
Our democratic Parliament would be failing in its constitutional democracy if it did not also express concern for the constitutional rights of the alleged offender. Central in this regard is section 35 of the Constitution which provides, amongst other things, that every accused person, including the alleged sexual offender, be presumed innocent until a court of law pronounces on the matter.
Therefore, taking into account the constitutional guarantees, the sexual offences Bill creates the procedural mechanisms to safeguard and protect the constitutional rights of alleged offenders as follows. The application for compulsory HIV testing must be considered by the magistrate in chambers. The magistrate must be satisfied that there is prima facie evidence that (a) a sexual offence has been committed, (b) the victim may have been exposed to the body fluids of the alleged offender, and (c) no more than 90 calendar days have lapsed since the alleged offence occurred.
The alleged offender retains his or her right to apply to the High Court for a review of the order directing compulsory testing if that order was not granted in accordance with the prescribed requirements in the Bill.
In conclusion, I believe this is an excellent and modern piece of legislation that will adequately meet the needs of our society. However, the success of it hinges on the following: adequate conscientisation, education and training of all relevant role-players including the broader society.
The GCIS can play a crucial role to facilitate the public awareness part of this process. Thank you.