Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
Use of results of HIV tests
34. The results of an HIV test, performed in terms of an order contemplated in sections 31(3) and 32(3), may only be used in the following circumstances:
(a)
to inform a victim or an interested person whether or not the alleged offender in the case in question is infected with HIV with the view to—
(i)
reducing secondary trauma and empowering the victim to make informed medical, lifestyle and other personal decisions; or
(ii)
using the test results as evidence in any ensuing civil proceedings as a result of the sexual offence in question; or
(b)
to enable an investigating officer to gather information with the view to using it as evidence in criminal proceedings.
Part 5: Miscellaneous
Register of applications and orders
35. (1) The National Commissioner of the South African Police Service must cause all applications made, and all orders granted, in terms of this Chapter, to be recorded in a register and kept in the manner determined by the National Commissioner as prescribed.
(2) Access to the register must be limited as prescribed.
Confidentiality of outcome of application
36. The fact that an order for HIV testing of an alleged offender has been granted as contemplated in section 31 or section 32 may not be communicated to any person other than—
(a)
the victim or an interested person referred to in section 30;
(b)
the alleged offender;
(c)
the investigating officer and, where applicable, to—
(i)
a prosecutor; or
(ii)
subject to section 35(2), any other person who needs to know the test results for purposes of any criminal investigations or proceedings or any civil proceedings; and
(d)
the persons who are required to execute the order as contemplated in section 33.
Confidentiality of HIV test results obtained
37. (1) The results of the HIV tests performed on an alleged offender in terms of this Chapter may, subject to subsection (2), be communicated only to—
(a)
the victim or the interested person referred to in section 30;
(b)
the alleged offender; and
(c)
the investigating officer and, where applicable, to—
(i)
a prosecutor if the alleged offender is tested as contemplated in section 32; or
(ii)
any other person who needs to know the test results for purposes of any civil proceedings or an order of a court.
(2) A presiding officer, in any proceedings contemplated in this Chapter or in any ensuing criminal or civil proceedings, may make any order he or she deems appropriate in order to give effect to this section, including the manner in which such results are to be kept confidential and the manner in which the court record in question is to be dealt with.
Offences and penalties
38. (1) (a) 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.
