Police in Limpopo say they are declaring war on rape by forcing all rape suspects to undergo HIV testing. Those who test positive will be charged with attempted murder in addition to rape.
"This is going to give police more ammunition to fight the scourge of rape," spokesman Brigadier Hangwani Mulaudzi said yesterday.
The move comes amid unprecedented public outrage about sexual crimes following the gruesome and fatal attack on Anene Booysen, which has also prompted the Minister of Women, Youth, Children and People with Disabilities Lulu Xingwana to call for the urgent reopening of Sexual Offences Courts.
More than 60000 rapes are reported in South Africa every year, according to the Medical Research Council, and it is accepted that the actual number of attacks is greatly underreported.
Mulaudzi said the escalation of rape in Limpopo had strengthened police resolve.
"From now on we will take every possible legal avenue to ensure heavier sentences - especially in cases where the suspect was aware of his HIV status."
The province's stand came to light this week, when Mulaudzi announced that police were to apply in court to test a serial rapist suspected of targeting teens, but it began asking courts for HIV tests in January. Mulaudzi said magistrates were being supportive. He declined to identify specific cases.
Limpopo was, to his knowledge, the only province to implement the Sexual Offences Act, under which police may ask a magistrate to order an HIV test of a rape suspect.
Wits law professor Cathi Albertyn said: "Technically speaking, the Sexual Offences Act allows the results of an HIV test to be used ... as evidence ... but proving attempted murder may be a step too far".
Wim Trengove SC said although testing a suspect for HIV could violate a person's privacy, it was legal and constitutional.
"It is about balancing of interests. Victims' rights would outweigh that invasion of privacy. It could be important for the legal proceedings to determine whether rape exposed a person to HIV," he said.
Francois van Jaarsveld of the Tshwaranang Legal Advocacy Centre to End Violence Against Women was surprised to hear it had taken so long to implement the law: "We have been fighting for compulsory testing since [the provision] was accepted by parliament six years ago. Every province should implement it to fight rape.
"Not only was this section designed to curb the HIV epidemic, it could act as a deterrent against rape in the country," he said.
But many experts slammed the move as a "knee-jerk reaction".
Many in the legal fraternity and those who work with rape survivors called instead for better prosecution of perpetrators.
Medical Research Council studies show that only 6% of reported rapes end in a conviction.
The council's acting director, professor Rachel Jewkes, said that taking into account the estimated unreported rapes, only about one in 200 rapists was convicted.
She questioned why a charge of attempted murder was needed.
"If a person is properly convicted of rape, the mandatory sentence is 15 years." Rapists of children or the mentally disabled and all those who participate in a gang rape were supposed to get life sentences.
Notably, Jewkes said, "80% of rapists are HIV-negative".
She explained that most rapes were committed by young men and even in provinces with high HIV- prevalence rates, such as KwaZulu-Natal, there was only a 20% prevalence in men in their 20s.
Although the Sexual Offences Act requires someone who has been raped to lay a charge with the police before gaining access to antiretrovirals to help prevent them contracting HIV, Lifeline advocacy officer Joan van Niekerk said the health department took "a far more flexible view".
A person who had been raped could be examined by a health professional and prescribed ARVs immediately, even if they had not yet laid a charge at a police station.
Doctors need to get rape kits from police officers to collect evidence and sometimes police stations ran out of kits, she said.
"If evidence such as semen and hair is not collected soon after the rape, the chance of conviction is very low," said Van Niekerk.
But sometimes patients had to wait hours for rape kits, she said.
"It would make much more sense for hospitals to keep the kits."
Professor Leslie London, of the UCT school of public health and family medicine, said charging rape suspects with attempted murder might deter people from knowing their status.
He said: "The police should spend their time preventing rape, not testing rapists."
Professor Bonita Meyersfeld from the Centre for Applied Legal Studies said fighting rape was about accountability: "All the people in the justice system, from the police to magistrates, need to be held accountable for doing their job."