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“We have seen there are a lot of repeat offenders in our province where they are continuing with these sexual attacks targeting women and children. Some of them might be carrying this virus and deliberating infecting these women,” says Mr. Malaudzi, arguing that the law that is already partly on the books, though rarely cited.
Human rights and HIV activists have decried the proposal in Limpopo, a somewhat isolated province and not where Booysens was killed.
“The practice further reinforces HIV related stigma, discrimination and prejudice,” says S'khumbuzo Maphumulo, an attorney for civil rights organization Section 27.
Malaudzi says that police were contemplating the new policy even before the attack on Booysens. He adds that police can only petition the courts to order an HIV test for men accused of rape and cannot carry out tests without court backing.
“We feel that it is now proper for us to have this information in the proceedings,” says Malaudzi.
Mr. Maphumulo, however, worries that the practice would likely lead to further overall abuses, especially of those ignorant of their rights, by overzealous police.
“Peoples’ rights are likely to be violated left, right, and center since force – without any due process whatsoever – will in all probabilities be used to test suspects,” he says. Punitive laws adopted hastily often intend to deter crime but can end up stigmatizing and doing harm, says Maphumulo, who also doubts whether the threat of tough laws will deter men who rape.
“Criminalization is based on unfounded fears as there is no evidence that it will stop offenders from transmitting HIV in future,” he says.
Malaudzi, the police official, acknowledged that he was unaware of cases where a rapist attempted to deliberately infect a victim with HIV. However, he maintains the measure is needed to protect women and children.
Maphumulo counters that if the criminalization of HIV were to go beyond men accused of rape, it could be women who face prosecution as they are often the first to learn they are HIV positive in their relationships. Their boyfriends or husbands could then use this to claim the women infected them.
“Even though the arguments in favor of the approach are largely that the measures are meant to protect women and girls, there is a strong likelihood that women will carry the brunt,” he says.