Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/2012-06-26/Chapter 5

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Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (as at 26 June 2012)
enacted by the Parliament of South Africa
Chapter 5: Services for victims of sexual offences and compulsory HIV testing of alleged sex offenders
1519806Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (as at 26 June 2012) — Chapter 5: Services for victims of sexual offences and compulsory HIV testing of alleged sex offendersenacted by the Parliament of South Africa

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)

subject to subsection (2)—

(i)

receive PEP for HIV infection, at a public health establishment designated from time to time by the cabinet member responsible for health by notice in the Gazette for that purpose under section 29, at State expense and in accordance with the State's prevailing treatment norms and protocols;

(ii)

be given free medical advice surrounding the administering of PEP prior to the administering thereof; and

(iii)

be supplied with a prescribed list, containing the names, addresses and contact particulars of accessible public health establishments contemplated in section 29(1)(a); and

(b)

subject to section 30, apply to a magistrate for an order that the alleged offender be tested for HIV, at State expense.

(2) Only a victim who—

(a)

lays a charge with the South African Police Service in respect of an alleged sexual offence; or

(b)

reports an incident in respect of an alleged sexual offence in the prescribed manner at a designated health establishment contemplated in subsection (1)(a)(1),

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)

when or immediately after laying a charge with the South African Police Service or making a report in respect of the alleged sexual offence, in the prescribed manner, be informed by the police official to whom the charge is made or by a medical practitioner or a nurse to whom the incident is reported, as the case may be, of the—

(i)

importance of obtaining PEP for HIV infection within 72 hours after the alleged sexual offence took place;

(ii)

need to obtain medical advice and assistance regarding the possibility of other sexually transmitted infections; and

(iii)

services referred to in subsection (1); and

(b)

in the case of an application contemplated in section 30, be handed a notice containing the prescribed information regarding the compulsory HIV testing of the alleged offender and have the contents thereof explained to him or her.


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)

providing PEP to victims; and

(b)

carrying out compulsory HIV testing,

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)

the relevant role-players falling under his or her jurisdiction; and

(b)

the National Commissioner of the South African Police Service, the National Commissioner of Correctional Services and the Director-General of Health.

(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)

the alleged offender be tested for HIV and that the results thereof be disclosed to the victim or interested person, as the case may be, and to the alleged offender; or

(ii)

the HIV test results in respect of the alleged offender, obtained on application by a police official as contemplated in section 32, be disclosed to the victim or interested person, as the case may be.

(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)

under the age of 14 years;

(ii)

a person who is mentally disabled;

(iii)

unconscious;

(iv)

a person in respect of whom a curator has been appointed in terms of an order of court; or

(v)

a person whom the magistrate is satisfied is unable to provide the required consent.

(2) (a) Every application must—

(i)

state that a sexual offence was committed against the victim by the alleged offender;

(ii)

confirm that the alleged offence has been reported as contemplated in section 28(2);

(iii)

state that the victim may have been exposed to the risk of being infected with HIV as a result of the alleged sexual offence;

(iv)

if it is brought by an interested person, state the nature of the relationship between the interested person and the victim, and if the interested person is not the spouse, same sex or heterosexual permanent life partner or a parent of the victim, the reason why the application is being made by such interested person; and

(v)

state that less than 90 days have elapsed from the date on which it is alleged that the offence in question took place.

(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)

a sexual offence has been committed against the victim by the alleged

offender;

(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 from the date on which it is alleged that the offence in question took place,

the magistrate must—

(i)

in the case where the alleged offender has not been tested for HIV on application by a police official as contemplated in section 32, order that the alleged offender be tested for HIV in accordance with the State's prevailing

norms and protocols, including where necessary—

(aa)

the collection from the alleged offender of two prescribed body specimens; and

(bb)

the performance on the body specimens of one or more HIV tests as are reasonably necessary to determine the presence or absence of HIV infection in the alleged offender,

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)

in the case where the alleged offender has already been tested for HIV on application by a police official as contemplated in section 32, order that the HIV test results be disclosed in the prescribed manner to the victim or interested person, as the case may be.

(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)

inform the victim or interested person, as the case may be, of the outcome of the application; and

(b)

if an order has been granted in terms of subsection (3), inform the alleged offender thereof by handing to him or her a notice containing the information as prescribed and, if necessary, by explaining the contents of the notice.


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)

the alleged offender be tested for HIV; or

(b)

the HIV test results in respect of the alleged offender, already obtained on application by a victim or any interested person on behalf of a victim as contemplated in section 30(1)(a)(i), be made available 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.

(2) An application contemplated in subsection (1) must—

(a)

set out the grounds, on the strength of information taken on oath or by way of solemn declaration, in which it is alleged that a sexual offence or offence was committed by the alleged offender; and

(b)

be made after a charge has been laid, and may be made before or after an arrest has been effected, or after conviction.

(3) If the magistrate is satisfied that there is prima facie evidence that—

(a)

a sexual offence or offence has been committed by the offender; and

(b)

HIV testing would appear to be necessary for purposes of investigating or prosecuting the offence,

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)

the collection from the alleged offender of two prescribed body specimens; and

(ii)

the performance on the body specimens of one or more HIV tests as are reasonably necessary to determine the presence or absence of HIV infection in the alleged offender,

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)

the investigating officer must request any medical practitioner or nurse to take two prescribed body specimens from the alleged offender, and the investigating officer must make the alleged offender available or cause such person to be made available for that purpose;

(b)

the medical practitioner or nurse concerned must take two prescribed body specimens from the alleged offender;

(c)

the investigating officer must deliver the body specimens to the head of a public health establishment designated in terms of section 29 or to a person designated in writing by the head of such establishment;

(d)

the head of the establishment or the person referred to in paragraph (c) must—

(i)

perform one or more HIV tests on the body specimens of the alleged offender as are reasonably necessary to determine the presence or absence of HIV infection in the alleged offender;

(ii)

record the results of the HIV test in the prescribed manner;

(iii)

provide the investigating officer with duplicate sealed records of the test results; and

(iv)

retain one sealed record of the test results in the prescribed manner and place; and

(e)

the investigating officer must—

(i)

in the case of an order contemplated in section 31(3), hand over to the victim or to the interested person, as the case may be, and to the alleged offender the sealed record of the test results and a notice containing prescribed information on the confidentiality of and how to deal with the HIV test results, and if necessary explain the contents of the notice; or

(ii)

in the case of an order contemplated in section 32(3), hand over to the alleged offender a sealed record of the test results and a notice containing prescribed information on how to deal with the test results, and if necessary explain the contents of the notice, and retain the other record of the test results as prescribed or, where applicable, make the record of the test results available to a prosecutor who needs to know the results for purposes of the prosecution of the matter in question or any other court proceedings.

(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)

to inform a victim or an interested person whether or not the alleged offender in the case in question is infected with HIV with the view to—

(i)

reducing secondary trauma and empowering the victim to make informed medical, lifestyle and other personal decisions; or

(ii)

using the test results as evidence in any ensuing civil proceedings as a result of the sexual offence in question; or

(b)

to enable an investigating officer to gather information with the view to using it as evidence in criminal proceedings.


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)

the victim or an interested person referred to in section 30;

(b)

the alleged offender;

(c)

the investigating officer and, where applicable, to—

(i)

a prosecutor; or

(ii)

subject to section 35(2), any other person who needs to know the test results for purposes of any criminal investigations or proceedings or any civil proceedings; and

(d)

the persons who are required to execute the order as contemplated in section 33.


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)

the victim or the interested person referred to in section 30;

(b)

the alleged offender; and

(c)

the investigating officer and, where applicable, to—

(i)

a prosecutor if the alleged offender is tested as contemplated in section 32; or

(ii)

any other person who needs to know the test results for purposes of any civil proceedings or an order of a court.

(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

38. (1) (a) Any person who, with malicious intent lays a charge with the South African Police Service in respect of an alleged sexual offence and makes an application in terms of section 30(1), with the intention of ascertaining the HIV status of any person, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years.

(b)

Any person who with malicious intent or who in a grossly negligent manner discloses the results of any HIV tests in contravention of section 37, is guilty of an offence and is liable to a fine or to imprisonment for a period not exceeding three years.

(c)

The institution of a prosecution for an offence referred to in paragraph (a) or (b) must be authorised in writing by the relevant Director of Public Prosecutions.

(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)

any form required to be prescribed in terms of this Chapter;

(b)

any matter necessary or required to be prescribed in terms of this Chapter; and

(c)

any other matter the Minister deems to be necessary or expedient to achieve the objects of this Chapter.

(2) Any regulation made in terms of subsection (1) must be—

(a)

submitted to Parliament at least 30 days before publication in the Gazette; and

(b)

made after consultation with the cabinet members responsible for safety and security and health, except for the matter prescribed in section 35, which must be made in consultation with the cabinet member responsible for safety and security.