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Chapter 9 - HIV and AIDS AND THE LAW

Women and HIV or AIDS

The impact of the HIV pandemic has been far greater on women than men. Women are at greater risk of being infected by HIV because of the power relationships between women and men. For example:

• Women are often dependent on men for money and shelter so they do what their partners say, including sexual behaviour.
• Women are not able to demand that their sexual partners practice safer sex by wearing a condom.
• Traditional views allow men to believe that women don't have a right to say no to sex with their partners.
• Most victims of domestic violence are women and children who are usually unable to take control of their relationships and unable to demand safer sex. This puts them at greater risk of getting HIV.

Rape and HIV infection

If a woman has been raped she should ask for an HIV test. Even if the result is negative, she should go for another test after 3 or 4 months. If she is HIV positive this will be proof that she was infected by the rapist. She should report this to the prosecutor in her case who will be able to raise it in court. If a rapist is found by the court to be HIV positive, and he knew of his HIV status before the rape, this could be used to give him a harsher sentence.

A rape survivor can also make a civil claim against a rapist. If she has been infected with HIV during the rape, and she can prove this, she can make a claim against the rapist for her medical expenses and for pain and suffering because of the rape.

See Problem 6: Reporting rape or assault and going to court.

See Sexual violence and HIV testing

Abortion

If a woman falls pregnant and does not want to continue the pregnancy, she can choose to have an abortion without the consent of her partner. This becomes very important for a woman who is HIV positive and doesn’t want to risk passing on the virus to the foetus.

Sterilisation

A woman with HIV cannot be sterilised unless she agrees to this. All women, including women with HIV, have the right to have children. However, women who are HIV should think carefully about having children as it is possible that the children will also get HIV.

Domestic violence

Women who suffer abuse are usually unable to take control of their relationships and unable to demand safer sex. This puts them at a greater risk of getting HIV. The Domestic Violence Act protects women by giving them a quick way to apply for a Protection Order to stop their partner from abusing them again.

See Getting a Protection Order.
See Problem 7: Using the law against domestic violence.
See Problem 8: Getting a Protection Order.

Sexual harassment

Sexual harassment is unwanted attention given to a peron in the workplace. Women are often the targets of sexual harassment. The person being harassed will be at greater risk of getting HIV. Sexual harassment is an unfair labour practice and should be reported to a supervisor. The Code of Good Practice on the handling of Sexual Harassment Cases in the Workplace says how people must deal with allegations of sexual harassment in the workplace.

See Code of Practice on the handling of Sexual Harassment Cases

Commercial sex work

Commercial sex workers are vulnerable to HIV because:

• their customers often don't want to use condoms
• sex is often violent and without a condom which makes it easier to pass on HIV
• many sex workers are raped or abused but they are unable to report this to the police because sex work is a crime

Customary practices

Some customary practices affect the rights of women by giving them less power than men in the community. Practices that make women unequal to men put them at greater risk of contracting HIV. Virginity testing for example, is a custom sometimes practiced on girls. Some people believe that this practice prevents the spread of HIV and AIDS as it encourages young girls not to have sex (in other words, if a young girl knows she is going to have her virginity tested she will be less likely to have sex.). Other people say this isn't true and it may have the effect of putting young girls at greater risk because -

• they will have anal sex to avoid vaginal penetration and this has a higher risk of transmitting HIV
• there is a myth that a person can be cured of AIDS by having sex with a virgin so men are encouraged to have sex with virgins which leads to rape and other forms of abuse.

Mother-to-child transmission of HIV

Research has shown that giving anti-retroviral drugs to HIV-positive pregnant mothers before they give birth decreases the risk of passing HIV on to the baby.

The Constitutional Court has said that the national government must make it possible for all pregnant mothers to have access to drugs that will prevent mother-to-child transmission of HIV.