# Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/Pending/Chapter 5

Chapter 5
Services for victims of sexual offences and compulsory HIV testing of alleged sex offenders
Part 1: Definitions and services for victims of sexual offences
Definitions
27. For the purposes of this Chapter, and unless the context indicates otherwise—
“application” means an application in terms of section 30 or 32;
“body fluid” means any body substance which may contain HIV or any other sexually transmissible infection, but does not include saliva, tears or perspiration;
“body specimen” means any body sample which can be tested to determine the presence or absence of HIV infection;
“HIV” means the Human Immuno-deficiency Virus;
“HIV test” means any validated and medically recognised test for determining the presence or absence of HIV infection in a person;
“interested person” means any person who has a material interest in the well-being of a victim, including a spouse, same sex or heterosexual permanent life partner, parent, guardian, family member, care giver, curator, counsellor, medical practitioner, health service provider, social worker or teacher of such victim;
“investigating officer” means a member of the South African Police Service responsible for the investigation of an alleged sexual offence or any other offence or any member acting under his or her command;
“medical practitioner” means a person registered as a medical practitioner in terms of the Health Professions Act, 1974 (Act No. 56 of 1974), and who, for purposes of section 33, is authorised to take body specimens as contemplated in this Chapter;
“nurse” means a person registered as such in terms of any relevant legislation and who, for purposes of section 33, is authorised to take body specimens as contemplated in this Chapter;
“offence” means any offence, other than a sexual offence, in which the HIV status of the alleged offender may be relevant for purposes of investigation or prosecution;
“PEP” means Post Exposure Prophylaxis;
“sexual offence” means a sexual offence in terms of this Act in which the victim may have been exposed to body fluids of the alleged offender; and
“victim” means any person alleging that a sexual offence has been perpetrated against him or her.
Services for victims relating to Post Exposure Prophylaxis and compulsory HIV testing of alleged sex offenders
28. (1) If a victim has been exposed to the risk of being infected with HIV as the result of a sexual offence having been committed against him or her, he or she may—
(a)
(i)
(ii)
(iii)
(b)
(2) Only a victim who—
(a)
(b)
within 72 hours after the alleged sexual offence took place, may receive the services contemplated in subsection (1)(a).
(3) A victim contemplated in subsection (1) or an interested person must—
(a)
(i)
(ii)
(iii)
(b)
Designation of public health establishments for purposes of providing Post Exposure Prophylaxis and carrying out compulsory HIV testing
29. (1) The cabinet member responsible for health must, by notice in the Gazette, designate any public health establishment for the purposes of—
(a)
(b)
and may, by notice in the Gazette, withdraw any designation under this section, after giving 14 days' prior notice of such withdrawal in the Gazette.
(2) The first notice in terms of subsection (1) must be published within two months of the implementation of this section, and at least at intervals of six months thereafter.
(3) The Director-General: Justice and Constitutional Development must, within 14 days of publication of each designation or withdrawal thereof contemplated in subsection (1), provide a copy of the notice to—
(a)
(b)
(4) The National Commissioner of the South African Police Service, National Commissioner of Correctional Services and Director-General of Health must distribute the notice referred to in subsection (1) to all relevant role-players falling under his or her jurisdiction.
Part 2: Application for compulsory HIV testing of alleged sex offender by victim
Application by victim or interested person for HIV testing of alleged sex offender
30. (1) (a) Within 90 days after the alleged commission of a sexual offence any victim or any interested person on behalf of a victim, may apply to a magistrate, in the prescribed form, for an order that—
(i)
(ii)
(b) If the application is brought by an interested person, such application must be brought with the written consent of the victim, unless the victim is—
(i)
(ii)
(iii)
(iv)
(v)
(2) (a) Every application must—
(i)
(ii)
(iii)
(iv)
(v)
(b) The matters referred to in paragraph (a) must be verified by the victim or the interested person, as the case may be, by affidavit or solemn declaration.
(3) The application must be made as soon as possible after a charge has been laid, and may be made before or after an arrest has been effected.
(4) The application must be handed to the investigating officer, who must, as soon as is reasonably practicable, submit the application to a magistrate of the magisterial district in which the sexual offence is alleged to have occurred.
Consideration of application by magistrate and issuing of order
31. (1) The magistrate must, as soon as is reasonably practicable, consider the application contemplated in section 30, in chambers and may call for such additional evidence as he or she deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings.
(2) (a) For the purpose of the proceedings contemplated in subsection (1), the magistrate may consider evidence by or on behalf of the alleged offender if, to do so, will not give rise to any substantial delay.
(b) Evidence contemplated in paragraph (a) may be adduced in the absence of the victim, if the magistrate is of the opinion that it is in the best interests of the victim to do so.
(3) If the magistrate is satisfied that there is prima facie evidence that—
(a)
offender;
(b)
(c)
the magistrate must—
(i)
norms and protocols, including where necessary—
(aa)
(bb)
and that the HIV test results be disclosed in the prescribed manner to the victim or interested person, as the case may be, and to the alleged offender; or
(ii)
(4) An order referred to in subsection (3) must be made in the prescribed manner and handed to the investigating officer.
(5) The investigating officer must, as soon as is reasonably practicable, after an application has been considered—
(a)
(b)
Part 3: Application for compulsory HIV testing of alleged offender by investigating officer
Application by investigating officer for HIV testing of alleged offender
32. (1) An investigating officer may, subject to subsection (2), for purposes of investigating a sexual offence or offence apply in the prescribed form to a magistrate of the magisterial district in which the sexual offence or offence is alleged to have occurred, in chambers, for an order that—
(a)
(b)
(2) An application contemplated in subsection (1) must—
(a)
(b)
(3) If the magistrate is satisfied that there is prima facie evidence that—
(a)
(b)
the magistrate must, in the case of an application contemplated in subsection (1)(a), order that the alleged offender be tested for HIV in accordance with the State's prevailing norms and protocols, including, where necessary—
(i)
(ii)
and that the HIV test results be disclosed in the prescribed manner to the investigating officer or, where applicable, to a prosecutor who needs to know the results for purposes of the prosecution of the matter in question or any other court proceedings and to the ​alleged offender, if the results have not already been made available to such offender as contemplated in section 30(1)(a)(i).
(4) An order contemplated in subsection (3) must be made in the prescribed manner and handed to the investigating officer.
(5) The investigating officer must, as soon as is reasonably practicable, after an application has been granted in terms of subsection (3), inform the alleged offender by handing to him or her a notice containing the information as prescribed and, if necessary, by explaining the contents of the notice.
Part 4: Execution of orders for compulsory HIV testing and results of HIV tests
Execution of order and issuing of warrant of arrest
33. (1) As soon as an order referred to in section 31(3) or section 32(3) has been handed to an investigating officer—
(a)
(b)
(c)
(d)
(i)
(ii)
(iii)
(iv)
(e)
(i)
(ii)
(2) (a) An order made in terms of section 31(3) lapses if the charge is withdrawn by the prosecution at the request of the victim.
(b) Any specimens taken or results obtained prior to the lapsing of the order, if any, as contemplated in paragraph (a), must be destroyed in accordance with the Department of Health's prevailing norms and protocols or where relevant, in accordance with any national instructions issued by the National Commissioner of the South African Police Service in terms of section 66(1)(c).
(3) The magistrate may, when or after issuing an order contemplated in section 31(3) or 32(3), issue a warrant for the arrest of the alleged offender if there is reason to believe that such offender may avoid compliance with such order or such offender has avoided compliance with such order.
​Use of results of HIV tests
34. The results of an HIV test, performed in terms of an order contemplated in sections 31(3) and 32(3), may only be used in the following circumstances:
(a)
(i)
(ii)
(b)
Part 5: Miscellaneous
Register of applications and orders
35. (1) The National Commissioner of the South African Police Service must cause all applications made, and all orders granted, in terms of this Chapter, to be recorded in a register and kept in the manner determined by the National Commissioner as prescribed.
(2) Access to the register must be limited as prescribed.
Confidentiality of outcome of application
36. The fact that an order for HIV testing of an alleged offender has been granted as contemplated in section 31 or section 32 may not be communicated to any person other than—
(a)
(b)
(c)
(i)
(ii)
(d)
Confidentiality of HIV test results obtained
37. (1) The results of the HIV tests performed on an alleged offender in terms of this Chapter may, subject to subsection (2), be communicated only to—
(a)
(b)
(c)
(i)
(ii)
(2) A presiding officer, in any proceedings contemplated in this Chapter or in any ensuing criminal or civil proceedings, may make any order he or she deems appropriate in order to give effect to this section, including the manner in which such results are to be kept confidential and the manner in which the court record in question is to be dealt with.
Offences and penalties
(b)
(c)
(2) An alleged offender who, in any manner whatsoever, fails or refuses to comply with or avoids compliance with, or deliberately frustrates any attempt to serve on himself or herself, an order of court that he or she be tested for HIV, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years.
Regulations
39. (1) The Minister, after consultation with the cabinet members responsible for safety and security and health, may make regulations regarding—
(a)
(b)
(c)
(2) Any regulation made in terms of subsection (1) must be—
(a)
(b)