POSITIVE OR NEGATIVE? Compulsory HIV testing of alleged sexual offenders

This research paper examines the proposed legislation for the compulsory HIV testing of alleged sexual offenders in South Africa, which was incorporated into the Criminal Law (Sexual Offences and Related Matters) Amendment Bill. The author argues that these provisions are redundant for police investigations and lack practical utility for victims due to the HIV 'window period,' thereby constituting an unjustifiable limitation of an accused person's constitutional right to privacy.

• The proposed legislation allows both victims of sexual offences and investigating officers to apply for a court order for the mandatory HIV testing of an alleged offender. For victims, the application requires a criminal charge to be laid with the South African Police Service (SAPS) and must be made within 90 days of the alleged offence.
• The author contends that provisions allowing investigating officers to apply for compulsory HIV tests are redundant because the Criminal Procedure Act No. 51 of 1977 (CPA) already enables police to obtain blood samples for evidence. Section 37 of the CPA is broad enough to cover HIV testing if necessary for investigating a crime.
• Compulsory HIV testing is argued to be of no practical utility for victims because of the 'window period'—the first three to six weeks after infection when HIV antibodies are not detectable by standard tests. This means an offender could test negative while being highly infectious, potentially leading victims to make dangerous decisions regarding post-exposure prophylaxis (PEP) or safer sex.
• The author asserts that forcing an alleged offender to undergo HIV testing and disclosing the results without consent violates the constitutional right to privacy. This is because HIV status is considered highly sensitive medical information, and the individual remains an accused person rather than a convicted criminal.
• The utility of HIV test results as evidence in criminal proceedings is limited. HIV status is only a relevant element for sentencing in rape cases where the offender knew they were HIV positive at the time of the crime; however, a test conducted weeks or months later cannot prove the offender's status or knowledge at the exact time of the offence.

APA

Roehrs, S. (2007). POSITIVE OR NEGATIVE? Compulsory HIV testing of alleged sexual offenders. Institute for Security Studies. https://issafrica.org/01-jun-2007-sacq-20/01-jun-2007-positive-or-negative-compulsory-hiv-testing-of-alleged-sexual-offenders-dr.-stefanie-roehrs

Chicago

Roehrs, Stefanie. POSITIVE OR NEGATIVE? Compulsory HIV testing of alleged sexual offenders. Institute for Security Studies, 2007. https://issafrica.org/01-jun-2007-sacq-20/01-jun-2007-positive-or-negative-compulsory-hiv-testing-of-alleged-sexual-offenders-dr.-stefanie-roehrs.

Wikipedia

{{cite report |last1=Roehrs |first1=Stefanie |title=POSITIVE OR NEGATIVE? Compulsory HIV testing of alleged sexual offenders |publisher=Institute for Security Studies |date=1 June 2007 |url=https://issafrica.org/01-jun-2007-sacq-20/01-jun-2007-positive-or-negative-compulsory-hiv-testing-of-alleged-sexual-offenders-dr.-stefanie-roehrs |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{roehrs2007positive, author = {Roehrs, Stefanie}, title = {{POSITIVE OR NEGATIVE? Compulsory HIV testing of alleged sexual offenders}}, institution = {Institute for Security Studies}, year = {2007}, month = jun, url = {https://issafrica.org/01-jun-2007-sacq-20/01-jun-2007-positive-or-negative-compulsory-hiv-testing-of-alleged-sexual-offenders-dr.-stefanie-roehrs}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }