A draft bill that will allow any survivor of a reported rape to apply to have the rape suspect(s) tested for HIV/Aids is under discussion. Not only might this enable women to obtain some peace of mind about their attackers' HIV status, but it should also assist them to make important choices around the use of anti-retroviral drugs, and safer sex practices.
This is a fine proposal, yet given the limited number and type of rape survivors it is likely to assist, its real value is symbolic rather than practical. According to statistics supplied by the ministry of safety and security, the police in Northwest province, Mpumalanga and Gauteng make arrests in less than 40 percent of rape cases, while Northern Cape and Western Cape appear to have the best arrest records of all (58 percent and 56 percent respectively). It is probable then that less than half of all women who report being raped will benefit from the bill's provisions.
But whatever its limitations, the bill is a move in the right direction. Symbolic laws have their place. They are useful in pushing for further change, as well as indicating that a problem is thought serious enough to warrant legislation. But the bill raises questions about the need to develop a law that incorporates and addresses South Africa's social context, as well as the need to avoid addressing complex issues in a piecemeal fashion.
Although some individual hospitals have set up guidelines on how to deal with rape and HIV, no national protocol is yet in place to guide health workers. Some health workers tell women about anti-retroviral drugs, others do not. Some women have access to these drugs, either through private medical aid schemes and rape insurance policies, while the vast majority do not. As the state shows no sign of making such treatment available to rape survivors, this group of women remain left out in the cold.
It is true law makers can issue recommendations around what the department of health should be doing, but these recommendations are not enforceable and usually end up in overflowing bottom drawer, never to see the light of day again.
Because stress is known to exacerbate the progression of HIV/Aids, the situation of women who are already HIV-positive must be considered. In addition to the rape itself, other factors compound such women's stress, including police investigations that go nowhere, and court cases that limp along. Police officials and court prosecutors need to be made aware of how their behaviour may (unintentionally) play a role in worsening someone's health. Prosecutors may even need to prioritise rape cases involving HIV-positive women. If not, we may see more cases such as that which occurred in Soshanguve last year. In this instance the 14-year old victim died of Aids before the case came to court, allowing the alleged rapists to go free.
A co-ordinated, multi-departmental state strategy is needed that includes not only the South African Law Commission but also the departments of justice, health, welfare and safety and security.
While the Law Commission puts together draft legislation, so these departments should develop directives, policy, standing orders, and training programmes – all of which need to come into effect at the same time as the legislation. If not, approaches to dealing with rape and HIV/Aids will continue to be fragmented and rape survivors will have as bad a time as ever in the criminal justice system.
Lisa Vetten is the former Manager of the Gender Programme at the Centre for the Study of Violence and Reconciliation.
Originally published in The Sunday Independent, 9 April 2000.