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The rights of rape survivors: access to free PEP

The 2007 Sexual Offences Act (SOA) requires that certain services be made available to rape survivors. Among these services, survivors of oral, anal and vaginal rape are entitled to receive post-exposure prophylaxis (PEP), a 28-day course of antiretrovirals for the prevention of HIV infection. This must be provided to survivors – at state expense – when they report to the police or a healthcare facility within 72 hours of their assault.

However, rape survivors are increasingly denied not only accurate information about their right to PEP, but also the emergency (and potentially life-saving) drug itself.

Earlier this year I received a call for help from a rape survivor I work with in Grahamstown. She said her friend had been raped over the weekend. The second rape survivor* visited an Eastern Cape clinic the day after her rape in order to gain access to emergency services. While there, she said healthcare workers denied her access to PEP on the grounds that she had not opened a rape case with the South African Police Services (SAPS). Unless she laid a charge, they said, she could not “prove” she had been raped and did not qualify for PEP.

The survivor pleaded with healthcare workers for access to PEP for two days, and made contact with me on day three. By that time she had already suffered secondary victimisation at the hands of the healthcare workers.

Worse still: more than 72 hours had passed since she was raped. Rape survivors must begin their PEP course within 72 hours of their rape; if taken after this time frame has lapsed the drugs will be rendered ineffective in the prevention of HIV infection.

Tshwaranang Legal Advocacy Centre director Lisa Vetten emphasised that health workers cannot use “their own discretion” in terms of when to administer PEP treatment to survivors. “Rape is a legal issue as well as a health issue, and health workers often forget this. A rape survivor is also a patient in need of treatment. If a patient presented with a gunshot or stab wound, it would be ridiculous to insist that they report to the police before they receive treatment. The same applies in sexual offence cases,” Vetten said.

The denial of PEP treatment to a survivor because she did not want to lay a criminal charge is inconsistent with the Sexual Offences Act, which places no such requirement on a rape survivor. The section 28(2) of the Sexual Offences Act states that a survivor who “lays a charge with the South African Police Service in respect of an alleged sexual offence; or reports an incident in respect of an alleged sexual offence in the prescribed manner at a designated health establishment… within 72 hours after the alleged sexual offence took place, may receive the services” (my emphasis added). These services include: PEP for HIV infection, at state expense, from a designated public health establishment and free medical advice surrounding the administering of PEP.

Section 28(2) has led to a great deal of confusion among sexual violence NGOs, healthcare workers and other stakeholders. This clause states that a ‘victim’ may be provided with PEP if a) s/he lays a criminal charge OR b) reports an incident to a designated (with PEP) health establishment. I contend that this conditional, in the form of the word “or”, is crucial, in that it does not oblige the survivor to lay a charge. Rather, a survivor who has laid a charge with the SAPS or a survivor who reports to a health establishment designated with PEP “may” receive PEP for HIV infection. This point has also been discussed and established in a 2008 article in the South African Medical Journal:

For persons exposed to the risk of HIV infection as a result of a sexual offence to qualify for free medical advice and PEP, they must within 72 hours after the alleged offence: (i) lay a charge against the alleged perpetrator with the South African Police Service (SAPS); or (ii) report the alleged sexual offence in the prescribed manner to a designated health establishment. Victims need only report to one or the other, but if they wish to lay a criminal charge, this must be reported to the SAPS.

This “or” has been consistently overlooked however, which has resulted in South African women’s rights NGOs incorrectly informing survivors that they are not entitled to PEP if they do not lay a criminal charge with the SAPS. When I sought advice about the above case from a legal advisor working at a women’s rights NGO, which I have chosen not to name, I was told that, according to the SOA, rape survivors who do not to lay a rape charge are not entitled to PEP. The legal advisor further explained that the SOA apparently denies these survivors PEP on the grounds that “some women have unsafe sex and lie that they were raped so that they can get free PEP”.

The problems with this assertion are three-fold. Firstly, the SOA does not deny survivors access to PEP if they do not lay a rape charge, as I have shown above. Secondly, I find it disconcerting that a legal advisor (of a women’s rights NGO, no less) would fail to question the use of a deplorable rape myth – that women often lie about being raped – to explain why the department of justice would implement a clause forcing rape survivors to lay a charge with the SAPS in order to get access to PEP.

This statement echoes disturbing findings made by the gender, health and justice research unit at the University of Cape Town in a study about access to information about PEP for rape survivors. Researcher at the unit Stefanie Röhrs wrote for the Mail & Guardian that 30% of the study’s respondents said health workers need to “verify” whether a survivor was in fact raped: respondents from the healthcare sector and the police were suspicious of women “crying rape” to get access to PEP. “Questioning rape survivors’ integrity is highly problematic, not only because it may delay access to health services, but also because it further victimises an already traumatised survivor,” wrote Röhrs.

The third problem with the aforementioned legal advisor’s statement is that it negates years of policy and directives issued by the department of health about exactly this issue. A March 2009 government gazette sets out a series of directives from the national department of health with regards to the provision of healthcare services to rape survivors. The very first directive states as follows:

PEP must be offered to all HIV negative patients presenting within 72 hours of a sexual offence that resulted in the patient coming into contact with the blood, semen or vaginal fluid of the alleged offender. [my emphasis added]

The fourth directive of this 2009 government gazette also refers directly to the issue of whether a survivor chooses to report a sexual offence to the SAPS or not. The only statutory obligation on adult survivors to report is reserved for elderly survivors in need of care (in terms of the Older Persons Act) or the mentally ill (as defined in the Mental Health Care Act). In addition, a survivor’s right “to decide [whether to report an assault] should always be respected and honoured”, and s/he “should never be coerced or forced to report the sexual offence or undergo medical forensic examination”, according to the directive.

Health establishments designated for PEP by the department of health are required to assist survivors by issuing them with, at the very least, a PEP three-day starter pack. In cases where a survivor turns up at a health establishment that is not designated for PEP, s/he must be referred to a designated health establishment.

The aforementioned rape survivor was denied access to rape services for three days. As a result, she risks possible HIV infection and adds secondary victimisation to her trauma as healthcare workers demanded her to lay a charge with the SAPS to “prove” she had been raped. Coercing rape survivors to lay criminal charges in order to get life-saving PEP is unconstitutional and tantamount to institutionalised victimisation of survivors. Fortunately, the well-placed “or” in Section 28 of the Sexual Offences Act means that, in my view, survivors are in no way obligated to lay a criminal charge with the SAPS, and may go directly to a hospital designated with PEP to access this service. What we need now, however, is accurate access to information about rape survivors’ rights, including their right to PEP.

Find a full list of health establishments designated for PEP in all nine provinces here.

For legal advice on rape and other sexual offences, please contact the Tshwaranang Legal Advocacy Centre on 011 403 8230/4267. If you are a survivor of rape or sexual assault and in need of counselling, please contact the Rape Crisis Centre at 021 447 9767.

*The survivors’ names have been withheld to protect their identities. The name of the clinic has also been withheld to prevent identification of the second survivor, as she fears further victimisation by healthcare workers employed by the clinic.
Originally published at the Mail & Guardian’s Thoughtleader

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Categorised in: Activism, Opinion, Writing