FORM 4

[Regulations 5(4)(a)(i) and 6(8)(a)(i)]

NOTICE TO OFFENDER REGARDING ORDER FOR HIV TESTING

Section 31(5)(b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) (the Act)

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF .................................................................

HELD AT ..................................................................................................................................

CASE NO:  ...............................................................................................................................

(To be handed to the alleged offender by the investigating officer)

To: ...........................................................................................................................................

(alleged offender) charged with the offence of ........................................................................

.................................................................................................................................................

against ........................................................................................................... (the victim).

The purpose of this notice is to provide you with information about an order of court which has been obtained to have you tested for HIV without your consent, and for your HIV status to be disclosed to your alleged victim or an interested person acting on behalf of the alleged victim or to an investigating officer, and, where applicable, to the prosecutor who needs to know the results for purposes of the prosecution of the matter in question or any other court proceedings.

What is HIV infection?

HIV refers to infection with the human immunodeficiency virus. HIV destroys important cells which control and support the immune system. As a result the body's natural defence mechanisms cannot offer any resistance against illnesses. Most people infected with HIV ultimately develop AIDS and die as their bodies can no longer offer any resistance to illnesses such as TB, pneumonia and meningitis. Infection with HIV therefore has serious consequences for you as an individual. There is currently no cure for HIV/AIDS.

How is HIV transmitted?

HIV is transmitted in three ways: via sexual intercourse; when HIV infected blood is passed directly into the body; and from mother to child during pregnancy, childbirth or whilst breast feeding.

Can HIV be transmitted during a sexual offence?

Yes. If there has been any exposure to HIV infected blood, semen or vaginal fluid during the alleged offence, HIV may have been transmitted.

Why should I be tested for HIV?

You may have exposed the victim to HIV during the alleged sexual offence or offence as defined in section 27 of the Act with which you are charged. (Section 27 of the Act defines a "sexual offence" as a sexual offence in terms of which the victim may have been exposed to body fluids of the alleged offender, and an "offence" is defined as any offence, other than a sexual offence, in which the HIV status of the alleged offender may be relevant for purposes of investigation or prosecution). In the light of the serious consequences of HIV infection and victims' fear of becoming infected with HIV, they have been granted a right to apply for the HIV testing of their alleged offenders and for the disclosure of the test results. Furthermore, investigating officers may also apply to have alleged offenders tested for HIV.

How will knowledge about my HIV status help the alleged victim?

The information may help him or her—

Who has granted the order that I be tested for HIV?

A magistrate from the magistrate's office in the district in which you allegedly committed the sexual offence or offence has granted the order.

On what basis has the court order been granted?

The magistrate has granted the order after considering evidence on oath by the person who applied to have you tested for HIV and by the investigating officer. The magistrate is satisfied on a prima facie basis—

You must note that the existence of prima facie evidence against you does not mean that if the criminal case against you went to trial you would be convicted of the crime. The State will still have to prove beyond reasonable doubt that you committed the offence you were charged with. Prima facie evidence is being used only for the application to have you tested for HIV without your consent.

May I refuse to have body specimen tested for HIV?

No. It is an order of court. The magistrate may also issue a warrant of arrest if there is reason to believe that you may avoid compliance with such order or if you have avoided compliance with the order. If you fail or refuse to comply with or avoid compliance with a court order that you be tested for HIV, you are guilty of an offence and may be liable on conviction to a fine or to imprisonment for a period not exceeding three years.

How will I be tested for HIV?

The investigating officer will take you to a registered medical practitioner or nurse who will on the same occasion take two blood specimens from you. The investigating officer will take the properly identified specimens to a designated public health establishment where they will be tested for HIV.

Who will pay for the HIV test?

The State.

Will I be informed about the result of the HIV test?

Yes. The investigating officer will ensure that you receive the HIV test result and information on where you can get help with understanding the implications of the result.

What if the charge against me is a false charge?

Any person who, with malicious intent lays a charge with the South African Police Service in respect of an alleged sexual offence and makes an application in terms of section 30(1), with the intention of ascertaining the HIV status of any person, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years.

Will the test result be disclosed to other people?

In terms of the Act the HIV test results may only be disclosed to the victim or the interested person who initiated the application for the compulsory HIV testing of the alleged offender, yourself (the alleged offender), the investigating officer, and where applicable a prosecutor or any other person who needs to know the test results for purposes of any civil proceedings or an order of a court.

Will the test result be used in the trial against me?

Yes. Section 34 of the Act provides that the results of an HIV test may be used as evidence in any ensuing civil proceedings as a result of the sexual offence in question or to enable the investigating officer to gather information with the view to using it as evidence in criminal proceedings.

How does my HIV status affect others?

Your HIV status does not only have serious implications for your alleged victim, but also for your own health and the health of others (eg your sexual partner or baby). Every person has a responsibility to ensure that they don't put others at risk of HIV infection. It is important that you get expert advice, assistance and information on treatment if you are HIV positive and how to protect yourself and others against infection with HIV.

Service organisations which can provide counselling and support

Expert assistance in dealing with the implications of HIV test results is available at a number of different service providers. These include:

Contact details of the above service providers are available in the telephone directory, from the investigating officer, and from the prison authorities.