Compulsory HIV Testing of Alleged Sex Offenders (Medicine and the Law) (Report)
Alleged sex offenders may be compelled to be tested for HIV at state expense without their consent. The Sexual Offences Act (1) (the Act) allows victims of sexual offences, interested persons on their behalf, and investigating officers of the South African Police Service (SAPS) to apply to a magistrate for such a court order. (2) To protect the alleged offender’s constitutional right to privacy, special procedures exist to protect the confidentiality of the court application and the HIV test results. A person’s constitutional right to bodily integrity and privacy (3) is violated if their blood is tested for HIV without their informed consent (4) except when this is allowed by reasonable and justifiable legislation. (5) For example, a health service may be provided to a person without consent when authorised in terms of a law or court order (6)–as is allowed in terms of the Act. (2) Given the high incidence of sexual violence and HIV in South Africa, the compulsory testing of alleged sex offenders for HIV without their consent is reasonable and justifiable, provided that constitutional safeguards regarding confidentiality are maintained.