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Sexual
Offences Act
August 17, 2001
Contents
PART
V
Prevention
of Spread of HIV
15. Deliberate
transmission of HIV.
16. Sentence for certain offences where offender is infected
with HIV.
17. Testing of sexual offenders for HIV infection.
18. Presumptions regarding HIV infection.
19. Jurisdiction of regional magistrates.
15 Deliberate
transmission of HIV TOP
(1) Any person
who, having actual knowledge that he is infected with HIV, intentionally
does anything or permits the doing of anything which he knows or ought
reasonably to know—
(a) will
infect another person with HIV; or
(b) is likely
to lead to another person becoming infected with HIV;
shall be guilty of
an offence, whether or not he is married to that other person, and shall
be liable to imprisonment for a period not exceeding twenty years.
(2) It shall be
a defence to a charge of contravening subsection (1) for the person charged
to prove that the other person concerned—
(a) knew
that the person charged was infected with HIV; and
(b) consented
to the act in question, appreciating the nature of HIV and the possibility
of his becoming infected with it.
16 Sentence for certain offences where offender is
infected with HIV TOP
Where a person is
convicted of—
(a) rape
or sodomy; or
(b) having
sexual intercourse with a young person in contravention of section three;
or
(c) having
sexual intercourse with an intellectually handicapped person in contravention
of section four; or
(d) contravening
subsection (1) of section eight by committing an act referred
to in paragraph (a) or (c) of that subsection;
and it is proved that,
at the time of the offence, the convicted person was infected with HIV,
whether or not he was aware of his infection, he shall be sentenced to
imprisonment for a period not exceeding twenty years.
17 Testing of sexual offenders for HIV infection TOP
(1) In this section—
"designated
person" means a member of a class of persons designated for the
purposes of this section by the Minister responsible for health;
"sexual offence"
means—
(a) rape,
sodomy, incest or indecent assault; or
(b) a contravention
of section three or four; or
(c) a contravention
of subsection (1) of section eight by the commission of an
act referred to in paragraph (a) or (c) of that subsection; or
(d) a contravention
of section fifteen; or
(e) an
attempt to commit an offence specified in paragraph (a), (b), (c)
or (d);
"sexual offender"
means a person who has been convicted of a sexual offence.
(2) Without
derogation from any other law, where a person is charged with committing
a sexual offence, the court may direct that an appropriate sample or samples
be taken from the sexual offender, at such place and subject to such conditions
as the court may direct, for the purpose of ascertaining whether or not
he is infected with HIV.
(3) The
sample or samples taken from a sexual offender in terms of subsection
(2) shall be stored at an appropriate place until the finalisation of
the trial.
(4) The
court shall, where the sexual offender is convicted, order that the sample
or samples be tested for HIV and, where he is acquitted, order that the
sample or samples be destroyed.
(5) Where
a court has given a direction under subsection (2), any medical practitioner
or designated person shall, if so requested in writing by a police officer
above the rank of constable, take an appropriate sample or samples from
the sexual offender concerned, and may use such force as is reasonably
necessary in order to take the sample or samples:
Provided that the
medical practitioner or designated person may decline to take an appropriate
sample in terms of this subsection if he considers that such taking would
be prejudicial to the health or proper care or treatment of the sexual
offender.
(6) An appropriate
sample or samples taken in terms of subsection (5)—
(a) shall
consist of blood, urine or other tissue or substance as may be determined
by the medical practitioner or designated person concerned, in such
quantity as is reasonably necessary for the purpose of determining whether
or not the sexual offender is infected with HIV; and
(b) in the
case of a blood or tissue sample, shall be taken from a part of the
sexual offender’s body selected by the medical practitioner or designated
person concerned in accordance with accepted medical practice.
(7) Without
prejudice to any other defence or limitation that may be available in
terms of any law, no claim shall lie and no set-off shall operate against—
(a) the State;
or
(b) any Minister;
or
(c) any medical
practitioner or designated person;
in respect of any
detention, injury or loss caused by or in connection with the taking of
an appropriate sample in terms of subsection (5), unless the taking was
unreasonable or done in bad faith or the person who took the sample was
culpably ignorant or negligent.
(8) Any
person who, without reasonable excuse, hinders or obstructs the taking
of an appropriate sample in terms of subsection (5) shall be guilty of
an offence and liable to a fine not exceeding ten thousand dollars or
to imprisonment for a period not exceeding two years or to both such fine
and such imprisonment.
18 Presumptions regarding HIV infection TOP
(1) For the purposes
of sections fifteen and sixteen, the presence in a person’s
body of HIV antibodies or antigens, detected through an appropriate test
or series of tests, shall be prima facie proof that the person
concerned is infected with HIV.
(2) For the purposes
of sections fifteen and sixteen, if it is proved that a
person was infected with HIV within thirty days after committing an offence
referred to in those sections, it shall be presumed, unless the contrary
is shown, that he was infected with HIV when he committed the offence.
19 Jurisdiction of regional magistrates TOP
A court of a regional
magistrate shall have jurisdiction to impose the penalty prescribed in
section fifteen or sixteen on a person convicted of contravening
that section.
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