Outside of Western Cape, PEP was not generally provided to rape survivors by the public health system prior to April 2002.99 National and provincial policies and programs to provide PEP through the public health system mark important progress, but problems in gaining access to PEP and related services remain, especially for children.
Human Rights Watch identified several impediments to PEP services. Government failure to provide adequate information or training about PEP left rape survivors and key service providers with little or no knowledge about PEP. Government failure to provide clear messages in support of ARVs compounded this problem. In the face of its history of pronouncements against ARV drugs, even those who had information about PEP were confused about whether it was government policy to provide it.
Inadequate police response to sexual violence complaints coupled with arbitrary requirements imposed by health professionals has also posed barriers to PEP. Problems obtaining consent to PEP services and lack of guidance for providers regarding PEP administration were additional concerns for children under fourteen. Other barriers to PEP services include stigma and discrimination of rape survivors and people with HIV, unequal access to poor and rural dwellers, inattention to social factors that inhibit completion of medications, and inadequate coordination among service providers. These are considered below.
The national government announced its intention to roll out PEP services in April 2002 as part of a “comprehensive package of support” for sexual violence survivors without launching an information campaign to educate the general public and relevant service providers about PEP or providing training on its administration. Provincial governments, for the most part, neglected this task as well. As a result, rape survivors often did not know about the health risks of rape or about PEP and other treatment and services available to them. Some of the agencies charged with providing services to rape survivors likewise did not know that the government has committed itself to providing PEP, nor what it is, where to get it, or how to administer it.
In light of the government’s attacks on the use of antiretroviral drugs for treatment of people living with HIV/AIDS, the government has a particularly weighty obligation to insure that members of the public as well as service providers have complete and accurate information about PEP to prevent HIV after rape. Human Rights Watch’s investigation suggests that they failed to meet this obligation. Many rape survivors had not received PEP services simply because neither they nor the various agencies charged with providing services to them had any idea that they existed. Health care providers, police, rape crisis center staff, and others who interact with sexual violence survivors were inadequately informed about this service. Since PEP must be administered within seventy-two hours of rape, this lack of information may have been deadly for many sexual violence survivors.
Gauteng started its PEP program in June 2002, two months after the national policy was announced.100 Between June and December 2002, the Gauteng Department of Health conducted four training sessions for medical staff and social workers on PEP.101 During the initial rollout of the program, the department did not publicize the program widely, out of concern with making sure that it would be ready to deal with the influx of people who needed drugs. According to Mohau Mokhasane, deputy director of medico-legal services in the Gauteng Health Department: “We entered into the program cautiously because we didn’t want to get everyone to come into clinics without having the correct information out there.”102
In KwaZulu-Natal, provincial health authorities informed hospital directors by electronic mail and follow-up fax that the protocol for the management of rape survivors had been amended to include PEP at end-September 2002 and relied on hospital directors to inform relevant health care workers of these changes.103 However, no systematic efforts were made to ensure that clinicians in each institution were aware of the procedures. There were few efforts to train clinicians regarding administration of the drugs; monitoring or evaluation procedures were not put in place to see that the programs were properly implemented.104 Nor were there corresponding efforts to train police or other frontline workers who interact with survivors of sexual violence, or an information campaign put in place to educate the general public.
Kas Kasongo, a physician who had conducted PEP training for health care providers in Eastern Cape on behalf of the provincial health department noted similar problems. People who attended the trainings on PEP services for rape survivors were hospital superintendents and matrons,105 not frontline health care workers who received rape survivors and dealt with their issues on a daily basis.106 Dr. Kasongo told Human Rights Watch that he was not aware of any campaign to disseminate information about PEP and that generally speaking, many people were unaware of their rights to PEP and other services after rape.107
Following Eastern Cape’s January 2003 announcement that the province would provide PEP, a journalist, posing as a rape survivor, attempted to get the drugs at four of the nine hospitals designated as PEP providers. The journalist found that these drugs were not available at two hospitals and that some medical staff at these hospitals did not know what antiretroviral drugs were. Medical staff at a third hospital confirmed that the drugs were available for rape survivors, provided they had been examined by the district surgeon and opened a case with the police—neither of which conditions were required by government protocols.108 Eastern Cape Health MEC Bovan Goqwana reportedly denied that the drugs were unavailable but conceded that hospital staff were not always aware of government policies.109 In fact, as of the end of May 2003, antiretroviral syrup for child rape survivors was not available at all institutions designated to provide PEP, apparently due in part to misinformation about its availability.110
Institutions that work with children and with sexual violence survivors, including health care facilities, police stations and schools each may be the first point of contact for rape survivors. It is therefore essential that they all have information about PEP. Human Rights Watch found, in each of the provinces we visited, that many key service providers lacked even basic information about PEP.
A pharmacist at an Eastern Cape public hospital designated to provide PEP told Human Rights Watch that doctors working in his hospital did not know about PEP. “In February and March, we had PEP going and I still found doctors not knowing about it. I sent out circulars [about PEP], but some doctors still didn’t know . . . Doctors rotate. They might have [previously] been in a rural hospital with no PEP.”111 The pharmacist also said that lack of information about how PEP works may explain, in part, why compliance with the PEP regimen was poor. His hospital’s policy was to issue a three- to seven-day supply of antiretrovirals and then to issue the remainder of the drugs when the survivor returned for her HIV test results. But after receiving the initial supply, “a lot of patients don’t return” for the remaining supply of drugs. The pharmacist suggested that the lack of information among both patients and service providers contributed to the failure of so many patients to follow up on PEP services.112
Specialized police units in main population centers known as “Child Protection Units” or “CPUs” are charged with handling crimes against children related to family violence, rape and other sexual offences. In areas where there is no CPU present, child abuse cases are supposed to be handled by specialized police officers attached to the detective unit.113
High-ranking officials with CPUs in Durban, KwaZulu-Natal, and Umtata, Eastern Cape shared with Human Rights Watch comprehensive written protocols for handling rape cases, which acknowledged the importance of collecting forensic evidence but did not incorporate information about PEP.114 A senior officer with the Durban CPU told Human Rights Watch that he had learned about the availability of PEP over a year after the national government’s announcement of the program. He had heard a report “as I was driving, I heard it on the radio . . . . Until now there has been no government [support for services]. . . . We got no notification [of the medical protocol]. I speak to doctors, so I know about it.”115
A senior officer with the CPU in Umtata, Eastern Cape reported that he had had no training about PEP, antiretroviral drugs, or how to prevent HIV after rape. He told Human Rights Watch that he had learned about PEP from a pharmacist at Umtata General Hospital who said that the PEP drugs, like all medications provided to rape survivors, were free. The pharmacist said that for the drugs to be helpful, they must be provided to the victim immediately.116 The officer also told Human Rights Watch that if a person were raped in the middle of the night, he or she would get the drugs the following day.117
There were two health care facilities that offered comprehensive care for rape survivors in the area covered by the Umtata CPU: one in Umtata, and a second in Limbode, about thirty minutes from Umtata by car. CPU police took rape survivors to the closer of the two facilities for care. As of May 2003, PEP was available only in Umtata. Perhaps if the CPU had been properly informed about PEP, they might have been able to facilitate the distribution of these drugs to rape survivors who were picked up closer to the Limbode facility by bringing them to the Umtata facility.
Not only children and young people are affected by lack of information about PEP among police. In April 2003, a woman in her sixties was brought to Sinawe Rape Crisis Centre in Umtata, which administered PEP as part of its affiliation with Umtata General Hospital. The woman was taken to the police two days after having been raped, but the police had no vehicle to take her to the hospital. She was brought to Sinawe the fourth day after the rape, by which time it was too late for her to get PEP according to the official protocol. According to a nurse at Sinawe, “the police knew to take the woman to Sinawe [instead of the local clinic], but didn’t know anything about PEP.” 118
Many sexual violence survivors lacked information about PEP. In the context of the highly publicized controversy regarding the links between HIV and AIDS and on the provision of antiretroviral drugs, their need for information about PEP is particularly acute. Failure to take action on the part of health care providers (which may be related to inadequate information about PEP) only makes this problem worse. As a result, rape survivors who present promptly for care may not get PEP, or may not seek post-rape care promptly because they do not understand the importance of doing so. These problems are compounded for children, who must often rely on others for assistance in obtaining services.
Arthur Jokweni, national youth coordinator for the Treatment Action Campaign (TAC) in Durban, told Human Rights Watch of an incident from April 2003 that illustrates how rape survivors’ lack of information impeded access to PEP services. In April 2003, a Durban pharmacist phoned Jokweni asking for TAC’s help with a woman who had been raped but had not been prescribed PEP. Jokweni went to the pharmacy and met with the rape survivor, who told him that she had been raped early the previous morning. She had reported this to the police and been taken to a hospital in Durban. She was told that the doctor was not there and was then taken to a hospital in Umlazi (about a half hour away), where she was asked for her consent to take a blood test. The doctor did not explain to her why she needed to take blood or otherwise explain PEP. The woman refused to allow her blood to be tested and was given a prescription for antibiotics and an appointment for a follow-up visit.
After Jokweni told the rape survivor about PEP, including the requirement that she test negative for HIV to obtain it, she told him that she wanted PEP. Jokweni accompanied the woman to the Durban hospital where she had gone the day before. After several hours, and with Jokweni’s assistance in struggling with the hospital bureaucracy, the woman ultimately got a blood test and a prescription for PEP drugs. The lack of urgency with which the hospital administration and the social worker treated this case suggests that they also may not have understood the importance of prompt provision of PEP services.
Problems regarding lack of information about PEP may be more acute for South Africans living in rural areas. Rural South Africans generally have worse access to complete, up-to-date HIV prevention information and fewer opportunities for HIV education than their urban counterparts. As a result, they may have suffered the greatest harms due to misinformation about HIV, AIDS and antiretroviral drugs.
Nomakuze Solwande, director of a women’s support center in Butterworth, rural Eastern Cape, devoted much of her time to assisting rape survivors in pursuing medical and legal assistance and advocating on their behalf before local and provincial governmental bodies. Solwande told Human Rights Watch that she had never heard of PEP. “It’s not happening in my area. Even now, there is no nevirapine in my area. . . . All rape victims get is some kind of antibiotics.”119 Solwande has years of experience working with rural sexual violence survivors, and has contacts with women’s groups and government officials extending to major urban areas in Eastern Cape. If she did not know about PEP, it is all the less likely that other members of her community did.
Inge Human, program manager of a victim support center based in Port Elizabeth, Eastern Cape, worked in Eliot, Fort Beaufort and Lungisi (rural areas outside of Port Elizabeth) to establish victim support centers. None of the hospitals in these areas had the PEP protocol until Human’s agency provided it to them; nor did they stock antiretroviral drugs for sexual violence survivors.120 According to Human, another problem in rural communities like these was that “there’s a lot of ignorance among the role-players about what should happen and how the process should work. . . . Sometimes the victim goes to hospital and the doctor is not there and the victim is told to come back the next day. If you have to administer PEP, you can’t let the victim go home.”121
President Mbeki’s and Minister of Health Tshabalala-Msimang’s highly publicized opposition to providing antiretroviral drugs to treat HIV/AIDS through the public health system and their engagement of denialists as high-level AIDS advisors continued even after the 2002 PEP announcement. In the face of its history of opposition to antiretroviral drugs, government failure to provide clear messages supporting PEP services undermined access to these services. Police and medical staff who should have been on the frontlines of providing PEP may not have done so, even when they knew about PEP, because of misinformation from the highest levels of government.
Dr. Kasongo, from Eastern Cape, told Human Rights Watch in May 2003 that many physicians and other health care workers in Eastern Cape did not know about PEP. He blamed the widespread lack of information about PEP on the government’s more general reluctance to provide antiretroviral drugs.
St. Elizabeth Hospital in Lusikisiki, northern Eastern Cape, a hospital designated in January 2003 to provide PEP, did not provide the drugs until the following month, after an NGO worker explained that doing so was part of provincial government policy. Said the NGO project manager: “The hospital superintendent was scared to give the antiretrovirals because he thought it was against government policy. He got a protocol, but he had no drive from the government to help staff the program. I had to convince the hospital superintendent to start providing PEP.”123
A senior officer with the Durban CPU told Human Rights Watch that “When the KwaZulu-Natal [PEP] policy was made, it was in conflict with the national government’s standpoint on the issue. The national government says we’re not sure that this works. Now the announcement was made, but I’m not sure the access is really there.”124
Childline is an NGO that provides a twenty-four-hour child abuse telephone help-line and community education on child abuse prevention and on services for rape survivors, including PEP. Joan van Niekerk, national coordinator, Childline-South Africa, told Human Rights Watch that government opposition to antiretroviral drugs had created confusion about whether PEP was beneficial or harmful, even among experienced Childline workers. In June 2003, a longtime Childline volunteer told van Niekerk, then director of Childline-KwaZulu-Natal, “that he had been asked by someone in government to spearhead a campaign against ARVs . . . He claimed that he had been approached by someone in government to lead a campaign in his community against the call for PEP because of the belief that PEP in itself caused death and severe illness.”125 He also told van Niekerk that he was confused about the information that he had been given by Childline regarding the benefits of PEP.126 Van Niekerk was extremely concerned about this report: “If he was confused, as a trained volunteer, then what about people in the community?”127
Dr. Michelle Roland, professor of medicine at the University of California-San Francisco Positive Health Program, trains physicians on PEP in the United States and South Africa. In mid-2003, an experienced physician who had provided PEP to hundreds of rape survivors in Western Cape expressed his confusion to Roland about the utility of antiretroviral drugs to treat HIV, in light of past government statements that these drugs were toxic and of no probable value to treat HIV. “After working in an HIV clinic in San Francisco and reading the literature, this doctor is now a strong supporter of ARV therapy. But if an experienced sexual assault health care provider, who routinely provides PEP, was confused about the utility of ARVs to treat HIV, how will providers with no PEP experience respond to PEP policy? This is likely to be a confusing transition period relative to ARV therapy and PEP in the professional domain.”128
Lack of Guidance Regarding PEP for Children Under Fourteen
As of this writing, the South African government had not finalized guidelines for PEP for children under fourteen, leaving many health care providers without basic information on PEP services for younger children. Eastern Cape’s PEP protocol includes guidance on PEP for children under fourteen but these guidelines were not provided to all health care providers handling child rape cases. Nurses who worked with children at rape crisis centers in Umtata and Uitenhage, Eastern Cape—which both had significant problems with sexual violence— had copies of the national guidelines (which lacked instruction for children under fourteen) on file, and were surprised to learn of the existence of the provincial guidelines.
Gauteng’s policy guideline for management of sexual violence cases included brief information on dosage of pediatric antiretroviral syrup for children.129 The guideline did not define who is a child for the purposes of PEP provision. This may have been a source of confusion for practitioners, given that the age of majority varies widely among South African laws dealing with children.130
National and provincial PEP guidelines require that a rape survivor test negative for HIV in order to qualify to receive PEP drugs.131 Children under fourteen cannot, however, consent on their own either to HIV testing or to medical treatment.132 There are provisions to obtain consent in cases where no parent or guardian can be reached and in urgent cases, but many medical staff and counselors charged with treating child sexual violence survivors either do not know or do not follow them. As a result, some children are barred from treatment altogether, at the potential cost of their lives.
If parental or guardian consent cannot be obtained, a medical practitioner may apply to the Minister of Social Development to obtain permission for HIV testing or medical treatment.133 This requirement has been criticized as impractical.134 And where time is of the essence—as is the case of PEP—it may be too time-consuming an option to pursue.
In an emergency, the medical superintendent of a hospital where a child is being treated may consent to medical treatment on behalf of a child under fourteen, provided the treatment is “necessary to preserve the life of a child or to save him or her from serious and lasting physical injury or disability and that the need for the operation or medical treatment is so urgent that it ought not to be deferred for the purpose of consulting the person who is legally competent to consent to the operation or medical treatment.”135 KwaZulu-Natal’s PEP protocol considers HIV testing and PEP to be necessary lifesaving treatment for rape survivors, permitting the medical superintendent to consent to HIV testing and PEP for children who have no parent or guardian to consent on their behalf.136 Other protocols offer no similar guidance, however.
Parental/Guardian Refusal to Provide Consent
Medical staff and counselors working with child rape survivors reported differing interpretations about what they were permitted to do when a parent or guardian refused consent to HIV testing or PEP.
Inge Human, program manager of a victim support center based in Port Elizabeth, told Human Rights Watch about a case in which an eleven-year-old rape survivor was denied treatment when her mother refused to consent to her daughter’s HIV test. Both the doctor and the rape crisis counselor tried to educate the mother about the test and about PEP, but since the mother refused to let her child be tested, the child did not get PEP. In the counselor’s understanding, even though the child had presented for treatment within seventy-two hours: “If a parent refuses [to consent for a child’s HIV test], there is nothing you can do.”137 V.B. Mohammed, a physician who treated child sexual violence survivors, likewise told Human Rights Watch that if the family opposed HIV testing (thereby blocking PEP), she could not compel them to consent, as she had no right to do so.138
Lorna Jacklin, a physician specializing in the treatment of child sexual abuse survivors, explained that the South African constitution required that every decision be made in the “best interests of the child.” Accordingly, in situations where a child’s parent or guardian refused testing or treatment, the hospital superintendent could provide consent on the child’s behalf if refusal to consent would be against the child’s “best interests.”139 Hangwi Manavhela, executive officer at a rape crisis center in Sibasa, Limpopo, told Human Rights Watch that in cases where guardians refused to consent to HIV testing, her organization likewise sought assistance from the hospital superintendent.140
Human Rights Watch’s research suggests that there is a dangerous lack of clarity regarding how to obtain consent for unaccompanied children. Some medical staff and counselors working with child rape survivors told Human Rights Watch that consent for testing and treatment of unaccompanied children under fourteen could be obtained from the medical superintendent or from the police, while others reported that unaccompanied children went untreated. Rape crisis counselors in Eastern Cape identified problems obtaining consent as one of the barriers impeding unaccompanied children’s access to PEP. In one case, a twelve-year-old rape survivor who came to the hospital alone was told by the doctor who saw her that no one could consent for her to have an HIV test. As a result, she was not prescribed PEP.141 Physicians who treated sexual violence survivors in KwaZulu-Natal and Gauteng told Human Rights Watch that consent to HIV testing and PEP could be obtained from the hospital for street children or unaccompanied children.142
Physicians and rape crisis counselors also reported that in situations where parental or guardian consent was unavailable, they or the treating physician sought consent for HIV testing on behalf of the child from the police.143 While police may provide proxy consent for children to undergo forensic examinations in certain situations,144 they do not otherwise have capacity to consent to HIV testing and PEP on behalf of children under fourteen, which are not part of forensic examinations. And, filing a charge—that is, dealing with the police at all—is not a prerequisite to PEP and may in fact itself interfere with prompt receipt of PEP and related medical services.
The Child Care Act amendments (Children’s Bill) propose changes regarding consent that would facilitate access to treatment for children under fourteen whose parents cannot or will not consent to HIV testing and PEP services on their behalf.145 The bill recognizes that the HIV/AIDS pandemic has dramatically altered the world in which South African children live. It recommends that the age of consent to medical treatment be lowered to twelve for children sufficiently mature to understand the “benefits, risks, social and other implications of the treatment.” For children under twelve or otherwise incapable of consent, it recommends consent be given by the child’s parent, primary caregiver or relative caring for a child.146 The bill also expands the options for consent to medical treatment where a parent or primary caregiver unreasonably refuses to give consent or is unavailable.147 Under the bill’s provisions, a hospital superintendent may consent to medical treatment in certain emergency situations and on behalf of a street child or a child in a child-headed household.148
The bill’s provisions specifically address HIV testing. They state that consent to an HIV test may be given by a child over twelve and by a child under twelve if the child is of “sufficient maturity to understand the benefits, risks and social implications of the test,” the child’s parents, caregivers, or a designated child protection agency arranging placement of the child or a hospital superintendent in certain defined circumstances.149 A child and family court also can give permission for an HIV test if the consent is being unreasonably withheld or the child’s parent or caregiver is incapable of giving consent.150
As of this writing, there is no indication when the Children’s Bill might be enacted. In the interim, Human Rights Watch recommends that the provisions of the bill pertaining to consent be enacted to ensure that all children have access to PEP. Until such legislation is passed, we recommend that where parental or guardian consent cannot be obtained, expedited procedures be put in place to get consent to facilitate prompt administration of PEP services for sexual violence survivors.
Refusal to be tested for HIV or to consent to HIV testing on behalf of a child rape survivor should not bar the survivor from receiving lifesaving PEP drugs.151 Human Rights Watch recommends that the national policy guidance for PEP provision to sexual violence survivors be amended to eliminate the requirement conditioning PEP on a negative HIV test.152 Until such change is made, we recommend that the Department of Health issue policy guidance that makes clear that provision of HIV post-exposure prophylaxis following sexual violence be regarded as an emergency situation and the medical superintendent be permitted to consent to HIV testing and PEP on behalf of children under fourteen.
Police are often the first point of contact for rape survivors and their gateway to PEP and other post-rape services. This first interaction with government officials after being the survivor of a crime of sexual violence often sets the tone of her or his treatment from the criminal justice and health care systems. It is impossible to overstate how important it is that police officers be trained to work with survivors of sexual violence, be aware of the time constraints around administration of PEP, and be committed to ensuring that every survivor receive timely and appropriate medical treatment. In South Africa, the police response fails to meet these criteria.
Children are more likely to be dependent on police and other adults for assistance in obtaining PEP and other post-rape services and more likely to be intimidated than adults by police. Police interference with access to PEP services may therefore pose a more serious obstacle to children than to adult rape survivors.
National policy guidelines set out clear instructions for police investigation of domestic violence and sexual offences cases.153 These guidelines mandate that police must accept and investigate all charges of domestic violence and not turn away any sexual violence survivors.154 They require that sexual violence survivors be interviewed by police in a private room or quiet area away from the main desk and that reports of sexual offences be given immediate attention. They permit a survivor to report a case by appearing in person to a police station outside of the jurisdiction of her home or where the offence occurred, or by telephone.155 The police must establish whether the survivor is in need of medical attention and, if so, arrange for it immediately.156 The guidelines also instruct that the medical examination “must be conducted as soon as possible,” and that the investigating officer make the necessary arrangements for it, including escorting a survivor. Even where sexual violence was not reported in a prompt fashion (within seventy-two hours), a forensic exam should still be conducted, since “[e]ven if the victim has washed” the “possibility of obtaining evidence cannot be discounted.”157
Human Rights Watch documented several accounts of police actions contrary to these requirements.158 Heidi Allison, administrator at a crisis center in Pinetown, KwaZulu-Natal, reported that in February 2003, police repeatedly refused to open a case for a fifteen-year-old girl who had been gang-raped. The girl was taken to the police station, where the policeman on duty told the child that he could not deal with children’s issues and turned her away. The child returned the next day and the day after that but was not able to get help. Ultimately, the crisis center intervened to assist the child with opening a case and pursuing medical treatment.159 The police’s refusal to open a case promptly may cost this girl her life and certainly undermined her ability to prove her case.
National policy guidelines require police to escort sexual violence survivors to the hospital or other place where a medical examination can be done, but in some locations police routinely refuse to do so.160 According to Heidi Allison, “police are supposed to accompany the victim to hospital but sometimes they just give forms to the clients, and tell them, ‘take this form J88 and go to RK Khan [Hospital].’”161
Rape survivors who attempt to report their cases promptly to the police may nonetheless present too late for PEP and forensic examination because their cases are not prioritized or because the police lack resources to transport them to a health care facility. A social worker who works with child rape and abuse survivors in Kwamashu, a township outside of Durban, told Human Rights Watch that if a rape survivor came to the police station at 10 a.m., the police might keep her waiting the entire day before taking her to the hospital.162 The police’s reliance on the Child Protection Unit—which was outside Kwamashu—to transport child rape survivors to the hospital would contribute to any delay.163
Dr. V.B. Mohammed of Prince Mshyeni Hospital in Umlazi told Human Rights Watch that police frequently discouraged children from filing complaints and sometimes told them that they had to pay to open a case and for transport to the hospital.164 Delphine Serumaga, executive director of People Opposing Women Abuse, told Human Rights Watch that “lost files” was a common problem interfering with rape cases. She said that a rape survivor would open a case, be told to return and upon returning be told that the file had been lost. According to Serumaga, the statement that the “file is lost” was a euphemism that meant that someone had come to take the file to block the case or that the police were asking the survivor for a bribe for the case to proceed.165
Although national policy mandates that police must accept cases where the offence is reported, in practice, police did not always do so. Dr. Mohammed told Human Rights Watch: “I recently had a child that had come to me from the Stanger area. She just pitched up here and said, ‘Doctor, I’m pregnant; what can I do?’” A decision was made to terminate the pregnancy; because the pregnancy was the result of incest, Dr. Mohammed phoned the police station to report the case and to arrange for the police to collect evidence from the termination of the girl’s pregnancy. Dr. Mohammed spoke with the inspector in charge, who told her it was “not possible” to report the case by phone, but that the girl had to return to Stanger. Eventually, Dr. Mohammed managed to get the captain on the phone and got a case number, and arranged for the CPU in Pietermaritzburg (which covers the Stanger area and is over an hour by car from Umlazi) to collect the forensic evidence.166
NGOs working with child rape survivors told of cases where police refused to open cases for sexual violence survivors who reported more than seventy-two hours after the incident, telling the survivors that they could not investigate the case because there was no evidence.167 Local police procedure provided similar instruction. Durban’s CPU protocol classified rape survivors who present after seventy-two hours as “non-urgent” cases and advised that in such cases, “immediate medical [is] attention not necessary unless: 1) [the] child is victim of traumatic rape, such as when there is active bleeding, 2) [the] investigator deems it necessary after consultation with the medical registrar.”168 A senior Umtata CPU official told Human Rights Watch that if more than seventy-two hours had passed since the incident, forensic evidence could not be collected. “After seventy-two hours, we still take the victim to hospital, but we don’t take a crime kit because we can’t get forensic exhibits.”169
Child rape survivors who do manage to register cases with the police may nonetheless have problems pursuing them because of the poor quality of statements taken by police. Val Melis, a prosecutor with expertise in prosecuting child sexual offences cases, told Human Rights Watch: “[O]ne of the biggest problems that we have with the police has been when the first statement is taken poorly, we spend the rest of the time standing around and trying to repair the damage.”170 According to Melis, one problem is that police have a “standard formula” that they use when taking rape survivors’ statements: “It starts off, ‘I was accosted by an unknown black male. . . He grabbed me from behind, unknown, stood there, got on top of me, and I gave no one permission to do this to me.’”171 In some cases, the formulaic statement contradicts the facts reported by the rape survivor, undermining the survivor’s credibility.
Melis told Human Rights Watch about a May 2003 case in which a ten-year-old child rape survivor was “very very clear now when we interviewed her about what happened. Very clear about the fact that she knew the perpetrator and she knew he visited her home on previous occasions.” The statement taken by the police was not so clear, however:
Administrative requirements imposed by health care providers significantly interfere with access to PEP and other services for child rape survivors. Most strikingly, and in violation of national policy, the requirement that sexual violence survivors file a police report before receiving medical services posed significant barriers to access to PEP. In addition, labyrinthine administrative procedures regarding drug procurement discourage effective implementation and undermine the message that PEP must be given in a timely matter and that its administration is a matter of life and death urgency.
Sexual violence survivors were required to file a complaint with the police before they could be examined or receive medical treatment, according to service providers in all of the provinces that Human Rights Watch visited. But this requirement is not part of Department of Health policy.173 And the fact that some rape survivors may not report their cases to the police, as well as the time involved in reporting, may effectively bar some survivors from receiving PEP within the necessary seventy-two hours. Requiring a police report to receive medical treatment also may prevent a rape survivor from obtaining medical evidence that could be crucial for successful prosecution of a case.
Nonhlananhla Magwanyana, a social worker at Childline-KwaZulu-Natal, told Human Rights Watch that “almost all the time police refuse to open a case” for child rape survivors. Doctors, in turn, often refused to examine children who had not reported their rape to the police. In one case, an eight-year-old girl was raped by a stranger and then returned to her house, bleeding heavily. The girl’s mother tried to report the rape, but the police refused to open a case because the child could not identify the perpetrator or his car.174 In another case, a sixteen-year-old girl went to the hospital after having been raped, but the doctor refused to examine or treat her because she had not reported the case to the police and referred her back to the police. The girl did not want to file a report with the police; as a result, she received no medical treatment and a forensic medical exam was not done.175
Magwanyana observed that it was not right to require a case number before receiving treatment because “medical services obviously come first. With the case number being the first priority, this hinders everything else.”176 She and her colleagues have pointed this out to the doctors who treat rape survivors, “but what they normally say is that they get the crime kit from the police,” and that they need to get a case number to get the crime kit.177
Heidi Allison, administrator at a crisis center in Pinetown, KwaZulu-Natal, explained that if a rape survivor came to the crisis center where she worked before having seen the police, “we take them to the police because for them to get examined by a doctor, they need to go to the police and get a J88 form first.178 A case needs to be opened because RK Khan [hospital] requires it.” Allison acknowledged that requiring rape survivors to report the incident to the police posed a serious barrier to prompt PEP services, because a survivor “may have to wait some time” for the police to take her statement.179
Rape crisis counselors in Port Elizabeth, Eastern Cape also reported that doctors had refused to examine sexual violence survivors without case numbers.180 Zoleka Nqonqoza, at Rape Crisis-Port Elizabeth, told Human Rights Watch that in April 2003, for example, a rape survivor went to the hospital for treatment on Saturday night and was turned away and told that she would be examined only if she came back with the police.181 Rape Crisis-Port Elizabeth therefore counseled rape survivors that they should first go to the police station to get a case number, not to the hospital, because the doctors would not examine them without a case number.182
Gauteng’s written policy indicated that PEP could be delayed until a sexual violence survivor had reported the case to the police.183 A clinic supervisor in Johannesburg explained in a January 2003 radio interview that “one of the criteria [for receiving PEP] is that the person must report the case to police.”184
During the initial implementation of the PEP program in KwaZulu-Natal, Dr. Neil McKerrow, head of children’s health services for the western region of KwaZulu-Natal, was informed that some KwaZulu-Natal hospitals and crisis centers would issue PEP only on production of a police case number by the rape survivor and that administrative problems (such as doctors’ poor understanding of the ordering mechanism for the drugs and reluctance to complete paperwork) also discouraged medical staff from offering antiretroviral drugs to sexual violence survivors.185 In March 2003, McKerrow wrote to Prof. R.W. Green-Thompson, superintendent-general of the KwaZulu-Natal Department of Health, to alert him to these problems and to request that training be done regarding implementation of PEP.186 In response to these concerns, the provincial health department requested that McKerrow run a series of workshops on sexual violence and PEP in each of the health districts in KwaZulu-Natal.187
PEP may be a greater issue for men and boys than is appreciated and their needs should be taken into consideration as the government implements its commitment to provide PEP to sexual violence survivors.
There is little information regarding rape committed against men and boys, perhaps due to stigma. As a senior officer with the SAPS Child Protection Unit in Durban said: “To be honest, we rarely get cases where boys report sexual assault. They don’t want to be seen as sissies—it’s the mindset here; the mentality hasn’t changed. The boys may go to the social workers but not us.”188 Nonhlanhla Magwanyana, a social worker with Childline, a national NGO that provides physical and emotional support for child survivors of abuse and rape, told Human Rights Watch that police treated boys differently from girls. “If a boy presents with a case of abuse, police would laugh.”189
Health care and social service providers who worked with child rape and sexual abuse survivors consistently told Human Rights Watch that boys comprised only a small percentage of their caseload. The number of boys who presented for care was “minimal,” according to Mandé Toubkin, the coordinator of Netcare Sexual Assault Crisis Centre’s programs.190 Between September 2000 and April 2003, Netcare treated 1465 sexual violence survivors. Sixty-seven of these patients (4.5 percent) were male.191
Other clinics reported similar statistics. Five of 106 patients treated for sexual violence at Sinawe Referral Centre in Umtata January-May 2003 were male, three of them boys under 18.192 Dr. V.B. Mohammed, a physician who treated child sexual violence survivors, estimated that 90 percent of 376 cases treated in recent months were children less than fifteen, but that very few of these cases were boys.193 Research on child sexual abuse suggests the actual incidence of sexual violence among boys is higher than these clinics report. A recent study of child sexual abuse in Eastern Cape conducted by the Medical Research Council found that 17.7 percent of teenage boys interviewed had been forced to have sex against their wishes, and that 16.3 percent of the boys (as compared to 28.9 percent of teenage girls) had been forced to have sex by a person at least five years older than they were.194
Stigma and Discrimination Interfering with PEP Services
As of this writing, government protocols require that sexual violence survivors test negative for HIV to be eligible for PEP.195 Human Rights Watch’s research suggests that this requirement may have barred many rape survivors from receiving PEP altogether. According to service providers, because of the stigma and fear attached to HIV/AIDS and attendant discrimination against people living with the disease and their families, many sexual violence survivors and their parents or guardians refused HIV testing and were therefore denied PEP.
The stigma of rape and the shame associated with the sexual abuse of children also interfered with access to PEP services by discouraging rape survivors and their guardians from disclosing abuses and seeking care for them. Counselors and advocates reported that parents and guardians were afraid to disclose a child’s rape because they do not want it known that their child had lost her virginity through rape and because of the shame that child rape brought to the family.196 As Ntombi Rekwena, a social worker who worked with rape survivors explained, some survivors did not want to open a case because of the stigma associated with rape, and "most people don't want to get tested because of the stigma of having HIV."197
Human Rights Watch documented several cases in which adult and child sexual violence survivors who reported for medical treatment within seventy-two hours—in time to receive PEP—refused HIV tests and therefore were denied PEP. A nurse who worked at a rape crisis center in Johannesburg commented that parents or guardians of sexually abused children may refuse to be tested or to consent to testing for children in their care because they were not informed or did not properly understand that the test was a prerequisite to potentially lifesaving treatment that could prevent HIV altogether.198 Absent this information, given the stigma associated with HIV/AIDS and discrimination practiced against people living with HIV/AIDS and their families, there was no incentive to be tested, particularly since HIV/AIDS treatment is inaccessible for most South Africans. As one person told Human Rights Watch in discussing people’s reluctance to test for HIV: “People think it’s better not to take the test. Everyone is negative until they take the test.”199
Stigma associated with rape and HIV may undermine PEP services even for those who receive an initial course of PEP. Zoleka Nqonqoza, assistant director of a rape crisis center in Eastern Cape, told Human Rights Watch that for children and married women who had not disclosed to their parents, boyfriends or husbands that they had been raped, “coming home with the cocktail [antiretroviral drugs] might be a problem.” In her experience, women who were reluctant to disclose rape to their husbands or partners were more likely to default on their drug regimen.200 A Johannesburg rape crisis center nurse commented that sexual violence survivors had provided false addresses or telephone numbers to her center. She suggested that they did so because they not want a health care provider to be able to follow up with them, perhaps because they had not disclosed the rape to their family.201
Services for Low-Income Survivors and Rural Dwellers
PEP services are provided free of charge to sexual violence survivors. However, as of this writing, they remain generally unavailable through the public health system outside of most major urban centers. As a result, sexual violence survivors who lack resources to travel to a facility where PEP services are available are often denied them altogether. Even if they are able to receive an initial dose of PEP medicines, the unavailability of PEP at the local level impedes their ability to complete the treatment. These problems are particularly acute in areas historically disadvantaged under apartheid (former “homeland” areas and townships in urban areas).
A nurse who worked at a trauma center affiliated with Umtata General Hospital told Human Rights Watch of two rape survivors living in rural areas who each sought health care at local clinics within seventy-two hours of having been raped. In both cases, the clinic referred the woman to Umtata General Hospital for specialized care. Neither of the women could afford the cost of transportation to Umtata, which they ultimately borrowed from the clinic nurses. By the time these women arrived at the trauma center, more than seventy-two hours had elapsed and they therefore were ineligible to receive PEP. As the nurse pointed out, had the clinics had PEP, both of these women could have benefited from the treatment.202
In some cases, rape survivors living in townships or villages that lack PEP services may make it to a health facility in time to receive an initial course of PEP drugs but be unable to get transportation to return for follow-up treatment. Although the national policy guidelines recommend that the entire course of PEP drugs be provided to rape survivors who cannot return “for logistical or economic reasons,” in practice, health care providers often prescribed three or seven days of PEP medicines, which meant that rape survivors who could not return for follow-up did not receive the full benefit of the treatment.
Inge Human, program manager of a victim support center based in Port Elizabeth, recounted a case in which a thirteen-year-old girl was raped and taken to the local hospital the following day, after her mother learned of the rape. At the hospital, the girl was instructed to go home and return the next day because the doctor had gone home. Fortunately, a church leader insisted on driving the child to Port Elizabeth where she was seen at a rape crisis center and given an initial course of PEP medicines. But once she returned home—ninety miles from Port Elizabeth—it was difficult for her to return for follow-up treatment. In this case, Human’s agency assumed the responsibility to take the medications to the child so that she could complete the PEP regimen. Absent this intervention, she might not have been able to do so.
Providing PEP and related services to rural sexual violence survivors may be difficult, but some community-based groups as well as health care providers who work in under-resourced areas have demonstrated its feasibility and offered models for successful implementation. For example, Thohoyandou Victim Empowerment Programme (TVEP), based in Sibasa, a poverty stricken area in Limpopo Province, worked with sexual violence and abuse survivors as part of the Thohoyandou Trauma Centre, a one-stop trauma center at Tshilidzini Hospital. As of this writing, the Thohoyandou Trauma Centre sees about forty rape survivors a month, most of them children less than sixteen years old. From the end of October 2002, when the Trauma Centre began offering PEP to sexual violence survivors, through March 2003, eighty-three rape survivors were offered PEP.203
To facilitate sexual violence survivors’ compliance with the PEP regimen, TVEP provides bus tickets for their follow-up visits to the Trauma Centre. The program obtains permission from survivors to visit them at their homes. TVEP informs survivors that if they have any problems with the PEP medication, they should contact TVEP, which can organize a home visit in urgent cases. Midway through the twenty-eight day course of treatment, field workers go to sexual violence survivors’ homes, including those of children, to see if they are taking their medications. This intensive involvement yields results: of the eighty-three rape survivors who received PEP between October 2002 and March 2003, all but two completed their course of treatment.204
National policy guidelines instruct that sexual violence survivors be given a one-week supply of antiretroviral drugs, and return one week later for further assessment, at which time the remainder of the drugs should be provided.205 Those who cannot return for logistical or economic reasons should be given the complete twenty-eight-day course of the drugs. All survivors receiving these drugs should be counseled regarding the importance of compliance with the PEP regimen.206
Provincial department of health representatives, medical staff, and rape crisis counselors reported that many sexual violence survivors failed to return for follow-up medication, thus defaulting on their treatment. A 2003 study conducted by Gauteng Health Department suggested that only 16.2 percent of sexual violence survivors in Gauteng who had received an initial course of PEP completed the treatment.207
Medical staff and rape crisis counselors identified several factors likely contributing to default, including lack of transportation to return for treatment; inadequate information regarding the PEP regimen; and possible side effects from the treatment.208 As described above, providing transportation assistance and other ongoing support to survivors can greatly increase adherence to the PEP regimen.209
The coordination of police, the health care sector and the criminal justice system is essential to protect child sexual violence survivors, ensure their access to lifesaving PEP, and bring to justice the perpetrators of these crimes. The prosecution’s role in handling cases of child sexual violence is intertwined with that of the police and the health care system, and its success is dependent on their performance. Police and health care providers collect and maintain evidence important for prosecution, establish contacts with sexual violence survivors and witnesses, and may also testify at trial. Forensic medical evidence collected by health care practitioners and preserved by police is important in sexual offences cases to establish that the alleged act did occur, to support allegations that the perpetrator used force, and to address the identity of the perpetrator. As Val Melis, a prosecutor with expertise in prosecuting child sexual offences, told Human Rights Watch, “the evidence of the doctor or forensic nurse is a crucial element of any rape case, especially a child rape case. . . especially when you have a situation where there’s minimal penetration and you need the doctor to explain the sort of things like vulval intercourse that still constitute rape.”210
South African law and policy provide a framework to facilitate the integrated provision of services among police, health care and prosecutors. The Domestic Violence Act of 1998, which covers sexual and other forms of abuse by parents, guardians, other family members and those who are or have been co-residents with the victim, requires police to provide necessary assistance, including arrangements for medical treatment, to victims of domestic violence, as well as information about their rights, and provides sanctions for noncompliance with these duties. 211 The 1998 National Policy Guidelines for Victims of Sexual Offences set out procedural standards for police, prosecution services, medical personnel, welfare and correctional services for handling cases of rape and sexual offences.212
Human Rights Watch’s investigation found that while there were many distinct and very committed actors providing services to sexual violence survivors, there were problems with coordination of their respective activities. Since sexual violence survivors may present themselves for services to a number of agencies (for example, to health clinics, counselors or police), such coordination is essential to ensure appropriate care.
Medical staff and counselors working with sexual violence survivors told Human Rights Watch that police specializing in sexual violence cases sometimes failed to make prompt or appropriate referrals to health care providers who, in turn, failed to provide complete and accurate forensic evidence and information to prosecutors. In some cases, district surgeons confined their role to forensic examination, failing to provide medical treatment. And, overall, medical, legal, and agency staff (including NGOs) were often unaware of the complex of services available to survivors and of the ways in which these services were linked. Human Rights Watch’s findings are consistent with those of recent South African investigations of service provision for child sexual violence survivors, which have found that in failing to implement an effective, coordinated strategy to prevent children from sexual violence and its consequences, the government was failing to meet its obligations under the Constitution and international law.213
99 Prior to April 2002, a few service providers, including the NGO GRIP in Mpumalanga, and a few public and private hospitals in Gauteng, also provided PEP to rape survivors. See note 36, above.
100 Gauteng Health Department completed its PEP protocol in June 2002 and thereafter disseminated it to regional management and to health centers that were to implement the program. The South African Police Services were informed of the policy at provincial level meetings attended by representatives of the departments of health, social welfare and safety and security. Human Rights Watch telephone interview with Mohau Mokhasane, deputy director, medico-legal services, Gauteng Department of Health, August 25, 2003.
101 These trainings, which focused on voluntary testing and counseling for HIV/AIDS, included a one-day continuing medical education course targeted at doctors, which was held in August 2002, a three-day voluntary testing and counseling training in June 2002, and three ten-day training sessions in July, August, and November/December. Ibid.
102 Human Rights Watch interview with Mohau Mokhasane, deputy director, medico-legal services, Gauteng, June 2, 2003.
103 Circular Minute No. G 47/2002 from Prof. R.W. Green-Thompson, superintendent-general, Department of Health, KwaZulu-Natal (September 25, 2002) (including protocols for PEP administration to adults and to children under fourteen); Human Rights Watch interview with Dr. Neil McKerrow, chief specialist and head of pediatrics and child health, Pietermaritzburg Metropolitan Hospitals, Pietermaritzburg, May 13, 2003.
105 Matrons are senior nurses who have supervisory responsibilities.
106 Human Rights Watch interview with Dr. Kas Kasongo, Port Elizabeth, May 30, 2003.
108 Michelle Pughe-Parry, “Bisho Pledge to Rape Victims,” Weekend Post, January 11, 2003.
109 Ibid. An MEC, or Member of the Executive Council, is a member of cabinet in the provincial government.
110 AZT and 3TC are produced in syrup as well as tablet form. Syrups may be preferred for children because they are easier to ingest and because the dose can be more easily adjusted to the child’s size than tablets. See Peter Havens et al., “Postexposure Prophylaxis in Children and Adolescents for Nonoccupational Exposure to Human Immunodeficiency Virus,” Pediatrics, vol. 111, no. 6 (June 2003), pp. 1475-1489; Human Rights Watch telephone interview with Dr. Neil McKerrow, chief specialist and head of pediatrics and child health, Pietermaritzburg Metropolitan Hospitals, Pietermaritzburg, March 31, 2003.
In February 2003, in response to reports by rape crisis counselors that liquid antiretroviral drugs were not available for children, Eastern Cape Health MEC Bevan Goqwana replied that the liquid had been difficult to obtain because it had not been put on national tender for provinces to buy in bulk, but that depots had it in stock for hospitals and clinics to order. Michelle Pughe-Parry, “Child Victims Given AIDS Drug Pledge,” Weekend Post, February 8, 2003. Pediatric antiretroviral syrup was not available at Umtata General Hospital until the end of May 2003, apparently because the hospital believed it was not available in the province. Human Rights Watch interview, Umtata, May 26, 2003. As a result during the first six months of 2003, several children under fourteen who came to the hospital for treatment within seventy-two hours of rape did not receive PEP. Ibid.
111 Human Rights Watch interview, East London, May 28, 2003.
113 Child Protection Units (CPUs) were established in 1995, in response to the increase in criminal complaints related to child abuse. In 1996, the South African Police began to restructure the CPUs to extend their services to include investigation of family violence and all sexual offences. See South African Police Services, “Family Violence, Child Protection and Sexual Offences Unit,” http://www.saps.org.za/7_crimeprev/7_childunit.htm (retrieved August 7, 2003). There were forty-five specialized units countrywide as of the end of 2002, of which thirty-three were CPUs and twelve were Family Violence, Child Protection and Sexual Offences units. South African Police Service, Annual Report 2001/2002, 2002, p. 47. In 156 towns, specialized police attached to the detective service had been assigned to handle crimes against women and children. In this report, we refer to all such units as CPUs, the name by which they are commonly known.
114 Human Rights Watch interview, Durban, May 15, 2003; Human Rights Watch interview, Umtata, May 27, 2003.
115 Human Rights Watch interview, Durban, May 15, 2003.
116 Human Rights Watch interview, Umtata, May 27, 2003.
118 Human Rights Watch interview, Umtata, May 28, 2003.
119 Human Rights Watch interview with Nomakuze Solwande, director, Masonwabisane Women’s Support Center, East London, May 27, 2003.
120 Human Rights Watch interview with Inge Human, program manager for community victim support, NICRO, Port Elizabeth, May 30, 2003. These hospitals were not included among the nine hospitals initially designated to provide PEP in Eastern Cape.
121 Human Rights Watch interview with Inge Human, Port Elizabeth, May 30, 2003.
122 Human Rights Watch interview with Dr. Kas Kasongo, Port Elizabeth, May 30, 2003.
123 Human Rights Watch telephone interview with Dr. Herman Reuter, project manager, Médecins Sans Frontières mission in Lusikisiki, May 14, 2003.
124 Human Rights Watch interview, Durban, May 15, 2003.
125 Human Rights Watch telephone interview with Joan van Niekerk, national director, Childline-South Africa, December 12, 2003.
128 Human Rights Watch e-mail communication with Michelle Roland, professor of medicine, University of California-San Francisco Positive Health Program, December 11, 2003.
129 See Gauteng Health Department, Revised Policy Guideline for Management of Victims of Sexual Assault Cases, June 2002, p. 17.
130 The Gauteng policy guideline itself notes these differences. See ibid., annexure A, “Legal Aspects and Acts-Sexual Offences. The Different Ages of Majority in the Different Acts” comparing, among others, Criminal Procedure Act, Act 51 of 1977, Child Care Act of 1983, Constitution of the Republic of South Africa, Section 28(1) (“child” defined as a person under eighteen years) with Age of Majority Act 57 of 1972 (children attain age of majority at twenty-one years old); Sexual Offences Act 23 of 1957, sec. 14 (criminalizing male attempt to have unlawful intercourse with a girl female under sixteen and female attempt to have unlawful intercourse with male under sixteen).
131 See South African Department of Health, “Policy Guideline For Management Of Transmission Of Human Immunodeficiency Virus (HIV) and Sexually Transmitted Infections In Sexual Assault.” Provincial guidelines in KwaZulu-Natal, Gauteng and Eastern Cape, modeled on the national guidelines, also require rape survivors to submit to HIV tests before receiving PEP.
132 Under the Child Care Act, children under fourteen cannot receive medical treatment without the consent of a parent or guardian, or, where the child is in the custody of a person other than her parent or guardian, or certain state institutions, the consent of the head of the institution or the person in whose custody the child has been placed. Child Care Act, Sections 4(b); 53(1). Problems obtaining consent are of particular concern for children in communities very hard hit by HIV/AIDS, where children are often cared for outside of their biological families or have no adult caretaker and locating a legal guardian promptly (or at all) is difficult. In December 2003, the Johannesburg High Court ruled that consent for HIV care and treatment could be given by caretakers of children living with HIV/AIDS who are orphans or whose parents or guardians cannot be readily located. The decision is limited to a group of pediatricians providing HIV care and treatment at three Johannesburg hospitals. “South Africa: Court Ruling Favors Children Orphaned by AIDS,” PlusNews, December 8, 2003; see also Notice of Motion in the Application of Meyers et al. in the High Court of South Africa (Witswatersrand Local Division), Case No. 03/29172, November 28, 2003.
133 The law provides that where a parent or guardian refuses to consent, cannot be found, or cannot consent because he or she is mentally ill or deceased, “the practitioner shall report the matter to the Minister, who may, if satisfied that the operation or treatment is necessary, consent thereto in lieu of the parent or guardian of the child.” Child Care Act, Act No. 74 of 1983, Section 39(1).
134 See, e.g., South African Law Commission, Report on the Child Care Act, December 2002, p. 140.
135 Child Care Act, Act No. 74 of 1983, Section 39(2).
136 See KwaZulu-Natal Child Sexual Assault Algorithm. Dr. Neil McKerrow, chief specialist and head of pediatrics and child health, Pietermaritzburg Metropolitan Hospitals, explained that “our protocol suggests that in the absence of a parent or guardian to provide consent commissioner's consent is used as we consider this to be a life-threatening situation. Commissioner's consent can be provided by the head of a hospital." E-mail communication with McKerrow, April 1 and August 20, 2003. An HIV test has been interpreted to constitute “treatment” within the meaning of Section 39 by the State Law Advisers. Human Rights Watch telephone interview with Liesl Gerntholtz, head of legal unit, AIDS Law Project, January 9, 2004. See also Liesl Gerntholtz, “HIV Testing and Treatment, Informed Consent and AIDS Orphans,” ESR Review, vol. 4, no. 3, September 2003 (HIV testing should be considered urgent medical treatment in context of PEP).
137 Human Rights Watch interview with Inge Human, program manager for community victim support, NICRO, Port Elizabeth, May 30, 2003. A nurse at Sinawe Referral Center, a rape crisis center in Umtata, Eastern Cape, likewise reported that if a parent refused an HIV test for her child, they wouldn’t do it, and the child consequently could not get PEP. Human Rights Watch interview, Umtata, May 26, 2003.
138 Human Rights Watch interview with Dr. V.B. Mohammed, Umlazi, May 15, 2003.
139 Human Rights Watch interview with Dr. Lorna Jacklin, Teddy Bear Child Abuse Clinic, Johannesburg, May 20, 2003.
140 Presentation by Hangwi Manavhela, executive officer, Thohoyandou Victim Empowerment Programme, at workshop on PEP implementation convened by the Center for the Study of Violence and Reconciliation and the AIDS Law Project, Johannesburg, May 21, 2003.
141 Human Rights Watch interview rape with crisis counselor, Rape Crisis-Port Elizabeth, Port Elizabeth, Eastern Cape, May 29, 2003.
142 Human Rights Watch interview with Dr. Lorna Jacklin, Teddy Bear Child Abuse Clinic, Johannesburg, May 20, 2003; Human Rights Watch interview with Dr. V. B. Mohammed, Umlazi, May 15, 2003.
143 Human Rights Watch interview with Dr. Lorna Jacklin, Teddy Bear Child Abuse Clinic, Johannesburg, May 20, 2003; Human Rights Watch interview with Dr. Linda Cartwright, Rainbow Child Abuse Clinic, Coronation Hospital, Johannesburg, May 19, 2003; Human Rights Watch interview, Port Elizabeth, May 29, 2003.
144 In cases of child sexual violence where a charge has been laid, the police may consent to a medical examination. See Criminal Procedure Act, Act No. 51 of 1977, as amended by Criminal Law Amendment Act, Act No. 4 of 1992 (providing that in investigating cases of indecent assault or acts of violence against a minor, a magistrate, commissioned police officer, or the police official in charge of a local station may grant consent to medical examination by a district surgeon or registered medical practitioner in situations where the child’s parent or guardian cannot be traced within a reasonable time, cannot grant consent in time, is a suspect in the offence, unreasonably refuses to give consent, is incompetent to consent, or is deceased).
145 The Children’s Bill, drafted by the South African Law Commission, aims to consolidate laws relating to child welfare and protection in one comprehensive statute. South African Law Commission, Report on the Review of the Child Care Act, December 2002, pp. 1-8. The bill initially submitted to parliament has been split into two sections: a “section 75” bill that covers areas of national legislative competence and a “section 76” bill that applies to areas of provincial legislative competence. Republic of South Africa, Memorandum on the Objects of the Children’s Bill, 2003, addendum to Children’s Bill introduced in National Assembly August 13, 2003, p. 84. The bill has been withdrawn from parliament and as of this writing there is no indication when it will be rescheduled for consideration. See Progress Report on Bills Before National Assembly Committees, February 5, 2004; see also “Setback for Child Rights Law,” Mail & Guardian, February 6, 2004.
146 Children’s Bill, Sections 135(3), 207(1)(b), (3).
147 A person who cares for a child, but is does not have parental rights and responsibilities for that child (such as an unrelated, voluntary caregiver) and a child and family court may consent to medical treatment of that child if such consent cannot be reasonably obtained from the child’s parent or primary caregiver. Ibid., Sections 44(2), 135(5). A child and family court may consent to medical treatment if the parent or primary caregiver is physically or mentally incapable of consenting on the child’s behalf, is deceased, or cannot readily be traced. Ibid., Section 135(5).
148 Ibid., Sections 135(4), 237.
149 Ibid., Sections 136(2)(a-d).
150 Ibid., Section 136(2)(e).
151 This is consistent with guidelines for PEP following rape in jurisdictions both within and outside South Africa. See, e.g., Western Cape Province Department of Health, Provincial Policy on the Management of Survivors of Rape and Sexual Assault,(2004); New York State Department of Health AIDS Institute, “Recommendations for Postexposure Prophylaxis.”
152 Rape survivors or their parents or guardians may refuse to be tested for HIV for many reasons, including stigma associated with HIV and lack of treatment for people living with HIV. Lifesaving PEP should not be withheld because of refusal to be tested for HIV, especially where children cannot make this decision on their own. In a related context, it has been recommended that women living in high HIV-prevalence areas who are unable or unwilling to be tested for HIV be provided with antiretroviral drugs to prevent mother-to-child HIV transmission. Jeffrey S.A. Stringer et al., “Nevirapine to Prevent Mother-to-Child Transmission of HIV-1 Among Women of Unknown Serostatus,” The Lancet, vol. 362 (November 29, 2003), pp. 1850-1853.
153 See Domestic Violence Act, Act No. 116 of 1998 and SAPS National Instruction 7/1999 on Domestic Violence; South African Police Service, National Policy Guidelines for Victims of Sexual Offences-South African Police Service, http://www.doj.gov.za/info/sex-guide-01.html (retrieved August 1, 2003). Failure to comply with obligations imposed under the Domestic Violence Act or national instructions issued thereunder constitutes misconduct that must be reported to the Independent Complaints Directorate (ICD), an independent body charged with investigating complaints of misconduct by members of the South African Police Service. Domestic Violence Act, Section 18(b)(4). Failure to comply with the police section of the National Policy Guidelines, which have been issued as national instructions (SAPS National Instruction 22/1998: Sexual Offences: Support to Victims and Crucial Aspects of the Investigation) could give rise to internal police sanctions or be the source of an investigation by the ICD. See SAPS National Instruction 22/1998: Sexual Offences: Support to Victims and Crucial Aspects of the Investigation; South African Police Service Act, Act No. 68 of 1995, Section 53(2).
154 Police instructions issued under the Domestic Violence Law require that where a criminal charge is laid by the complainant, the police must open a docket and have it registered for investigation. South African Police Service, SAPS National Instruction 7/1999 on Domestic Violence, paragraph 7(1). Police must also fully document their responses to every incident of domestic violence on a specific form, regardless of whether or not a criminal offence has occurred. Ibid., paragraph 12(2). The Domestic Violence Law’s broad coverage extends to sexual violence committed against children by parents and others who have or have had a parental relationship with a child, other family members, intimate partners and past or current co-residents. Ibid., Section (1)(vii).
SAPS national instructions on sexual offences direct the first officer receiving a report of sexual violence to open a docket and notify an investigating officer immediately, and instruct that no survivor be turned away from laying a charge. SAPS National Instruction 22/1998: Sexual Offences, paragraphs 3, 4.
155 South African Police Service, SAPS National Instruction 22/1998: Sexual Offences, paragraphs 3, 4; SAPS National Instruction 7/1999 on Domestic Violence, paragraphs 4, 5.
156 SAPS National Instruction 22/1998: Sexual Offences ,paragraphs 3, 4, 7; Domestic Violence Law, Section 2(a) and SAPS National Instruction 7/1999 on Domestic Violence, paragraph (9) (requiring police to provide necessary assistance to victims in obtaining medical treatment).
157 SAPS National Instruction 22/1998: Sexual Offences, paragraph 7.
158 A 2002 investigation by the South African Human Rights Commission similarly found that police response to sexual violence against children was poor. Among other things, the commission found that the police failed to comply with national and local policy guidelines regarding management of sexual abuse, and that their knowledge of them was limited and that “contrary to policy, statements made are taken by inexperienced police officers as opposed to CPU members who specialize in child abuse . . . [which] negatively impacts on the investigation and ultimately on the outcome of the cases.” South African Human Rights Commission, Report on Sexual Offences Against Children. Does the Criminal Justice System Protect Children? April 2002, pp. 56-58.
159 Human Rights Watch interview with Heidi Allison, Open Door Crisis Care Centre, Pinetown, May 16, 2003.
160 SAPS National Instruction 22/1998: Sexual Offences, paragraph 7; see also South African Police Service, SAPS National Instruction 7/1999 on Domestic Violence, paragraph 9 (mandating police assist domestic violence complainant in obtaining medical treatment).
161 Human Rights Watch interview with Heidi Allison, Open Door Crisis Care Centre, Pinetown, May 16, 2003.
162 Human Rights Watch interview, Durban, May 14, 2003.
164 Human Rights Watch interview with Dr. V.B. Mohammed, Umlazi, May 15, 2003.
165 Human Rights Watch interview with Delphine Serumaga, Johannesburg, May 19, 2003.
166 Human Rights Watch interview with Dr. V.B. Mohammed, Umlazi, May 15, 2003.
167 Human Rights Watch interview with Heidi Allison, Open Door Crisis Care Centre, Pinetown, May 16, 2003. See also Grame Hosken, “ ‘ Cops ignored by raped child:’ Woman tells of verbal abuse while reporting ordeal,” Daily News (Durban), February 13, 2003.
168 Durban protocol for management of child rape and abuse cases.
169 Human Rights Watch interview, Umtata, May 27, 2003.
170 Human Rights Watch interview with Val Melis, senior public prosecutor, Durban Magistrate’s Court, May 16, 2003.
173 Department of Health guidelines recognize that sexual violence survivors may come to a health facility without having laid a charge, and instruct that “[i]n such cases, wherever possible, the medical examination and the health examination should be provided at the point of entry into the system,” and further, that following examination, “[i]f the victim arrived without referral by the SAPS but now indicates that she wishes to lay charges, the police should be called to the health centre.” Department of Health, Uniform National Health Guidelines for Dealing with Survivors of Rape and Other Sexual Offences, http://www.doj.gov.za/policy/guide_sexoff/sex-guide02.html#1 (retrieved August 1, 2003), pp. 1-2 (issued as part of National Policy Guidelines for Victims of Sexual Offences, which set out procedural standards for police, health care practitioners, welfare and correctional service personnel who handle rape and other sexual offences cases). The national policy guidance for PEP does not require a police report as a condition of receiving PEP. See Department of Health, “Policy Guideline for Management of Transmission of Human Immunodeficiency Virus (HIV) and Sexually Transmitted Infections in Sexual Assault,” http://www.doh.gov.za/aids/docs/rape-protocol.html (retrieved July 28, 2003).
174 Human Rights Watch interviews with Nonhlananhla Magwanyana, social worker, Childline-KwaZulu-Natal, Durban, May 14 and 16, 2003.
176 Ibid. Busi Biyela, Magwanyana’s colleague at Childline-KwaZulu-Natal, told Human Rights Watch about another sixteen-year-old rape survivor who had a similar experience. After having been raped, the girl came to Childline-KwaZulu-Natal, and Biyela took her straight to the doctor. The doctor said that she had to open a case before she could examine the girl. Biyela sat with the doctor, who called several police stations until they were able to open a case over the phone, at which point the doctor proceeded with her medico-legal examination. Human Rights Watch interview with Busi Biyela, Durban, May 14, 2003.
177 Ibid. The sexual assault evidence collection kit (“crime kit”) contains test tubes, slides and other equipment for taking such biological samples as may be necessary. Crime kits are kept by the police unless a special dispensation is made for them to be held elsewhere. Human Rights Watch interview with Thoko Majokweni, director, Sexual Offences and Community Affairs Unit, National Prosecuting Authority, Pretoria, June 4, 2003. The police provide the crime kit to the health care professional conducting the forensic examination and are responsible for collecting the sealed crime kit when the examination has been completed.
178 The police issue two forms to rape and sexual assault survivors (forms J88 and SAPS 308) and a crime kit. The purpose of the form 308 is to establish the survivor’s informed consent to be examined by a medical officer and to disclose otherwise confidential medical evidence to the police for the purpose of criminal proceedings. The J88 is used by health care professional conducting the forensic examination to record medical evidence. The crime kit contains equipment for taking necessary biological samples. The investigating officer is responsible for collecting the J88 form and sealed crime kits from the examining health care practitioner.
179 Human Rights Watch interview with Heidi Allison, Open Door Crisis Care Centre, Pinetown, May 16, 2003. A senior CPU official in Durban told Human Rights Watch that doctors in his jurisdiction would not see a rape victim without a case number from the police. “Without the case number, the doctors don’t want to treat the child. It’s their protocol.” Human Rights Watch interview, Durban, May 15, 2003. Dr. V.B. Mohammed, explained that “the reason that I ask for a case number is because I want the person responsible to be taken to task. What is happening is that in cases that you don’t have a case number, you find that the rape continues.” But “if a victim refuses to open a police case, I still document my findings.” Human Rights Watch interview, Umlazi, May 15, 2003.
180 Human Rights Watch interviews with Zoleka Nqonqoza, assistant director, and Viki Proudlock, volunteer, Rape Crisis-Port Elizabeth, Port Elizabeth, May 29, 2003.
181 Human Rights Watch interview with Zoleka Nqonqoza, May 29, 2003.
183 Gauteng’s written policy instructed that “if a victim presents to a health care center without reporting a case, where possible, the police should be called to the health center to take a statement. . . . Once the victim has informed the authority that they have been raped/sexually abused, they should be forwarded to the front of a health queue, or given priority status.” Gauteng Health Department, Revised Policy Guideline for Management of Victims of Sexual Assault Cases (June 2002), p. 7. Free State’s provincial protocol requires rape survivors to report the rape to the police as a condition of receiving PEP. Free State Provincial Government, “Rape and HIV Post Exposure Prophylaxis: Protocol, Policy and Procedures,” Health Support Circular No. 9 of 2002, July 2, 2002, p. 28.
184 Khopotso Bodibe, “PEP for Survivors of Rape – What is it?” Health-e News Service, January 31, 2003 (available at http://www.health-e.org.za/view.php3?id=20030114) (quoting Beverley Pepper). At the time of the interview, Pepper was the supervisor of a clinic at the Hillbrow Community Health Center, Johannesburg. Ibid. She has since been appointed the PEP coordinator at the Gauteng Department of Health. Human Rights Watch telephone interview with Mohau Makhosane, August 25, 2003.
185 Human Rights Watch interview with Dr. Neil McKerrow, chief specialist and head of pediatrics and child health, Pietermaritzburg Metropolitan Hospitals, Pietermaritzburg, May 13, 2003. In November 2002, Dr. Ames Dhai conducted a workshop on PEP in Durban, at which she was told by the district surgeon at a major Durban hospital that the hospital would not treat rape survivors who presented without a case number. Dr. Dhai explained to the district surgeon that requiring a case number was not in keeping with the provincial protocol and notified Dr. Shireen Akojee, the director of forensic services in the KwaZulu-Natal Department of Health, asking whether she was aware that there were district surgeons who were not treating rape survivors unless they had a case report number, and stating that this situation needed to be clarified. In March 2003, Dhai learned that district surgeons in Durban had not changed this practice. Human Rights Watch interview with Dr. Ames Dhai, Johannesburg, May 21, 2003.
186 Human Rights Watch interview with Dr. Neil McKerrow, Pietermaritzburg, May 13, 2003; letter from Dr. McKerrow to Prof. Green-Thompson, 25 March 2003.
187 Human Rights Watch interview with McKerrow, Pietermaritzburg, May 13, 2003; E-mail communication with McKerrow, August 19, 2003. The trainings were scheduled to take place in February and March of 2004. Human Rights Watch e-mail communication with McKerrow, December 4, 2003.
188 Human Rights Watch interview, Durban, May 15, 2003.
189 Human Rights Watch interview, Durban, May 14, 2003.
190 Netcare Hospital Group operates sexual violence care centers providing PEP, forensic examination and counseling for rape survivors in eight of forty-four private hospitals and specialized medical facilities that it owns and manages. Email from Mandé Toubkin, coordinator, Netcare Sexual Assault Crisis Centre, to Human Rights Watch, July 23, 2003; Human Rights Watch interview with Mandé Toubkin, Johannesburg, May 19, 2003.
191 Human Rights Watch interview with Mandé Toubkin, Johannesburg, May 19, 2003; Mandé Toubkin, “Rape: A Social Responsibility Project. Can It Be Managed In The Private Health Care Environment?” Power Point Presentation, 2003.
192 Human Rights Watch interview with nurses at Sinawe Referral Centre, Umtata, May 26, 2003, and statistics provided by Sinawe Referral Centre nurses. Sinawe Referral Centre is a trauma clinic affiliated with Umtata General Hospital.
193 Human Rights Watch interview with Dr. V.B. Mohammed, Umlazi, May 15, 2003 and statistics provided by Dr. Mohammed.
194 Rachel Jewkes, “Child Sexual Abuse in the Eastern Cape,” presentation at the Second South African Conference on Gender Based Violence and Health, May 7, 2003.
195 See note 37 and accompanying text.
196 Human Rights Watch interview, Eastern Cape, May 26, 2003; Human Rights Watch interview with Nomakuze Solwande, director, Masonwabisane Women’s Support Center, East London, May 27, 2003.
197 Human Rights Watch interview with Ntombi Rekwena, social worker, People Opposing Women Abuse, Soweto, May 24, 2003.
198 Comment at workshop on PEP implementation convened by the Center for the Study of Violence and Reconciliation and the AIDS Law Project, Johannesburg, May 21, 2003.
199 Human Rights Watch interview, Johannesburg, June 3, 2003.
200 Human Rights Watch interview, Port Elizabeth, May 29, 2003.
201 Workshop on PEP implementation convened by the Center for the Study of Violence and Reconciliation and the AIDS Law Project, Johannesburg, May 21, 2003.
202 Human Rights Watch interview, Umtata, May 26, 2003.
203 Presentation by Hangwi Manavhela, executive officer, Thohoyandou Victim Empowerment Programme, at workshop on PEP implementation convened by the Center for the Study of Violence and Reconciliation and the AIDS Law Project, Johannesburg, May 21, 2003.
205 The Department of Health policy instructs that rape and sexual assault survivors fourteen and over be provided with a combination of AZT and 3TC. Department of Health, “Policy Guideline for Management of Transmission of Human Immunodeficiency Virus (HIV) and Sexually Transmitted Infections in Sexual Assault,” http://www.doh.gov.za/aids/docs/rape-protocol.html (retrieved July 28, 2003). Gauteng, KwaZulu-Natal and Eastern Cape provincial guidelines instruct that children under twelve be provided these drugs in syrup form.
206 Ibid. Gauteng and KwaZulu-Natal provincial guidelines provide likewise, while Eastern Cape’s protocol instructs that rape survivors who cannot return at weekly intervals be given a three-week supply of drugs at the first weekly follow-up visit.
207 Presentation by Mohau Makhosane, deputy director of medico-legal services, Gauteng Health Department, at workshop on PEP implementation convened by the Center for the Study of Violence and Reconciliation and the AIDS Law Project, Johannesburg, May 21, 2003.
208 Human Rights Watch interview with Saliswa Ngqangweni, nurse, Thuthuzela Centre, Mdantsane, Eastern Cape, May 29, 2003.
209 See discussion of Thohoyandou Victim Empowerment Programme, above. In order to promote compliance with PEP, the Thuthuzela Centre in Mdantsane, Eastern Cape, tried to identify potential problems from the outset and provided ongoing support, and, where possible, transportation assistance to rape survivors for follow-up treatment. Human Rights Watch interview with Saliswa Ngqangweni, nurse, Thuthuzela Centre, Mdantsane, Eastern Cape, May 29, 2003.
210 Human Rights Watch interview with Val Melis, senior public prosecutor, Durban Magistrate’s Court, Durban, May 16, 2003.
211 Domestic Violence Act, Act No. 116 of 1998, Sections 3, 18(2, 4); South African Police Service, Domestic Violence National Instruction 7/1999, Sections 7-10, 13.
212 National Policy Guidelines for Victims of Sexual Offences, www.doj.gov.za/info/policy_guidelines1998.htm (retrieved August 1, 2003). The guidelines for police have been issued as SAPS National Instruction 22/1998: Sexual Offences: Support to Victims and Crucial Aspects of the Investigation. Provincial governments have also developed guidelines for intersectoral cooperation in managing cases of child survivors of sexual violence. See, e.g., Gauteng Multi-Disciplinary Child Protection and Treatment Protocol; KwaZulu-Natal Department of Health, The Management of Survivors of Child Survivors of Violence, http://www.kznhealth.gov.za/protocol2htm (retrieved August 14, 2003).
213 See South African Human Rights Commission, Report on Sexual Offences Against Children: Does the Criminal Justice System Protect Children?, April 2002, p. 57; Report of the Parliamentary Task Group on the Sexual Abuse of Children, 2002, p. 106.