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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   
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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   
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(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   
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(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   
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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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