New sexual offences bill fails to protect rape survivors

Gender activists are describing a new sexual offences bill, expected to be tabled in the South African parliament this week, as a step backwards in terms of rape survivors' ability to protect themselves from HIV infection. After languishing in various draft forms for nearly a decade, the bill was approved by cabinet last week and is expected to pass this month, with little opportunity for further public debate. Several activists and experts interviewed by PlusNews speculated that the Justice Department's apparent haste to pass the bill was a response to public pressure arising from the rape trial of former Deputy President Jacob Zuma. "They've sat on the bill for eight and a half years, and now there's a public outcry because of the Zuma trial they want to rush it through," said Joan van Niekerk, national coordinator for Childline South Africa, who helped draft a previous bill presented to the justice minister by the South African Law Commission in 2003. According to Van Niekerk, the present version of the bill "bears little resemblance" to the South African Law Commission draft, which relied on extensive consultation with experts as well as input from public hearings. The original draft recommended that all rape survivors have access to post-exposure prophylaxis (PEP), a course of antiretroviral drugs that can reduce the risk of contracting the HI virus from an HIV-positive attacker by as much as 80 percent if started within 72 hours of exposure. In addition to the provision of PEP at all medical facilities, the draft bill recommended that rape survivors receive treatment for the prevention of pregnancy, other sexually transmitted diseases and psychological distress. The new version of the bill mandates designated public health facilities to provide rape survivors with PEP, but makes no mention of other treatment or counselling services; unlike the original bill, it makes access to PEP drugs dependent on the victim laying criminal charges. In the context of statistics suggesting that only about one in seven adult victims of sexual assault and one in 10 children report being attacked to the police, Prof Ames Dhai, head of the bioethics department at the University of Witwatersrand Medical School, believes that the stipulation either coerces women into laying charges or prevents them from accessing PEP altogether. According to Liesel Gerthotholtz, director of the Johannesburg-based NGO, Tshwaranang Legal Advocacy Centre, some service providers already insist that women report their attack to the police before giving them PEP, despite the department of health's policy that it is not a requirement. "The bill now means you can't walk into a health facility and say you've been raped and ask for PEP and just be assessed on a medical basis," Gerthotholtz said. "I personally think that the requirement may even be unconstitutional in terms of the right to access healthcare." The South African government pledged to provide PEP to rape survivors in 2002 but, according to a Human Rights Watch report published in 2004, the pledge was not accompanied by a public awareness campaign educating survivors about its availability or adequate training for police and healthcare workers. According to Gerthotholtz, access to PEP is still "patchy", especially in rural areas. "It depends on where you go and your own level of knowledge," she said. "Facilities may have it, but you may not be offered it - you may have to ask for it - or some facilities that don't have it won't refer you to places that do." Also of concern to those involved in drafting the original bill is the absence in the cabinet-approved version of any obligation for health facilities to provide rape survivors with other essential support services. "PEP needs to be located within a package of care for survivors," Gerthotholtz said. "We know, for example, that if people receive counselling they're more likely to complete a course of PEP and to deal with the other consequences of rape. After all, protecting yourself from HIV is only one of the problems for rape survivors." "We need to look at the broader vision of the bill," commented van Niekerk, "and the broader vision actually negates the protection of victims. If they don't have protection, they're not going to come forward to report, and if they don't report they're not going to access PEP." The new bill does not make any specific provisions for children either. As the law stands now, children under 14 need the consent of a parent or guardian to access PEP, but the difficulty with this requirement, said Dhai, was when the abuse occurred at home and the abuser was the parent or guardian. "Children are hugely neglected," agreed Gerthotholtz. "There are no paediatric formulations of the [PEP] drugs, and the issue of consent is very problematic." Activists also had problems with a section of the new bill that gives rape survivors the right to force alleged perpetrators to be tested for HIV, and had concerns about removing the accused's right to consent to a test before being proven guilty. The South African Law Commission draft bill recommended that rather than paying for the HIV testing of accused sexual offenders, the government should focus resources on the health of the victim. "The woman needs to continue with PEP in any case, because the alleged perpetrator could be in the window period [the 90-day period after HIV infection when the virus does not show up in a test]," Dhai pointed out. The question of resources would be key to implementing the bill's provisions for rape survivors. "Having a clause [about PEP] doesn't guarantee access," she observed. "The whole issue is delivery. You can't have laws that are disconnected from reality. The reality, as we all know, is that we do have problems with service delivery and provision."