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Chapter 9 - HIV and AIDS and The Law

Prisoners and HIV/AIDS

In many cases, prisoners with HIV or AIDS continue to be strongly discriminated against.

Some rights and rules about prisoners and HIV/AIDS

  • It is against the law for a prisoner to be tested for HIV against his or her wishes or knowledge. A prisoner does not have to have an HIV test even if the prison authorities demand this. Informed consent must always be given for an HIV test.

See HIV testing and informed consent

  • It is against the law to force a person to make a confession or admission, for example about his or her HIV status, so that this can be used against him or her.
  • The courts cannot use evidence that was forced out of a prisoner in a way that goes against the person's rights.
  • Prisoners have the right to adequate medical treatment. This means prisoners with HIV should have access to the same kinds of treatment and care that are available to non-prisoners. In the case of EN v Government of South Africa (2007), the Durban High Court held that affected prisoners had a right to be provided with ARV treatment
  • Prisoners have the right to confidentiality about their HIV status.

See Confidentiality

  • It is against the law to segregate (separate) a prisoner with HIV or AIDS from other prisoners.
  • HIV education and condoms should be available to all prisoners, as they are available to people in the community.

EXAMPLE

In the case of Van Viljon and Others v Minister of Correctional Services (1997), the High Court ordered the Department of Correctional Services to provide combination anti-retroviral drugs to two prisoners because the doctor had prescribed these drugs for them. This case makes it clear that if a doctor has prescribed anti-retroviral drugs, the Department of Correctional Services must provide them.

The rights of accused people

Accused people are people who have been charged with crimes but who have not yet been found guilty or not guilty. However because of the potential prejudice to a victim of sexual violence if he or she does not know the HIV status of the perpetrator, the victim can apply to court for an order to have the perpetrator have an HIV test and for the results of the test to be given to him or her. This application can also be brought by any person that has an interest in the victim’s well-being or the investigating officer investigating the case. The application must be brought within 90 days after the act of sexual violence was committed.

If the person is successful with the application, the investigating officer must take the person who committed the act of sexual violence for an HIV test. The HIV test results must then be given to the victim in writing. The HIV test results are private and confidential and should not be disclosed to others.

See Sexual violence and HIV testing

Bail and sentencing for rape accused with HIV/AIDS

All accused people have a right to apply for bail. However, where the crime is very serious, for example, rape, the law makes it more difficult to get bail particularly where the accused knew that he was HIV positive or had AIDS at the time of the rape. The minimum sentence for a person accused of rape who is HIV positive, is much higher than the minimum sentence for a person accused of rape who is NOT HIV positive.

See The Criminal Procedures Second Amendment Act (Bail law).

 

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