Criminal non-disclosure of HIV or AIDS vs. Rape / Rape- 3 (4) false pretences or fraudulent means, as referred to in subsection (2) (b), are circumstances where a person (c) intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection to that person. / Rape- 2 (4) false pretences or fraudulent means, referred to in subsection (2) (b), are circumstances where a person- (C) Intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection to that person. / Criminal non-disclosure of HIV or AIDS- Part 1, Section 5, clause (1) A person (“A”) who engages in intimate contact with another person (“B”) and who intentionally does not disclose to B that he or she has HIV or AIDS is guilty of an offence of criminal non-disclosure of HIV or AIDS. (2) “Intimate contact” means contact of a sexual nature that exposes the body of one person to a bodily fluid of another person. (3) It is a defence to a charge under subsection (1), if B was aware that A was infected with HIV or AIDS and consented to intimate contact with that knowledge. (4) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the National Director of Public Prosecutions and may only be instituted if such prosecution is in the interests of justice with due regard to the following- (i) the nature and duration of the relationship between A and B; (ii) whether A is financially dependent on B; (iii) the likelihood of retaliation, whether emotional, financial, physical, or otherwise against A or his or her family by B or his or her family if A disclosed that he or she has HIV or AIDS. (iv) the attitude prevailing in the community in which A and B reside towards persons who have HIV or AIDS, with specific reference to previous incidents of violence towards or discrimination against such persons; and (v) the likelihood of loss of employment or accommodation resulting from disclosure of the fact that A has HIV or AIDS. (b) The National Director of Public Prosecutions may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.
Comments:
- The February 2004 version of Bill differs from SALC’s bill and August 2003 bill in that failure to disclose HIV status in circumstances where there was a risk of transmission no longer amounts to rape. The February 2004 Bill adds an additional offence titles Criminal non-disclosure of HIV or AIDS.
- The Criminal non-disclosure of HIV or AIDS clause includes not only penetration but also “intimate contact” as an offence Intimate contact is defined as contact of a sexual nature that exposes the body of one person to the bodily fluid of another person.
- The February 2004 Bill also contains an additional clause which criminalizes non-disclosure of a sexually transmissible infection other than HIV
- There were 10 submissions that opposed or questioned the validity of the HIV non-disclosure clause in the definition of rape (4) (c). Most submissions argued against HIV non-disclosure being included in the bill at all. In the February 2004 bill the offence is criminal non-disclosure of HIV/AIDS rather than rape.
- Women are more likely to be tested for HIV/AIDS. The effects of disclosing HIV status is more detrimental for women then for men. Women frequently suffer abuse and abandonment after HIV status is disclosed to partner.
4. Clause may lead to fewer people being tested.