IV. Background: HIV/AIDS and Sexual Violence in South Africa

HIV/AIDS in South Africa

An estimated 5.3 million of South Africa’s 45 million people are living with HIV/AIDS, the highest officially recognized national total of people with HIV/AIDS in the world.¹ The extremely rapid increase in HIV prevalence among women attending antenatal clinics—from 0.7 percent in 1990 to 26.5 percent in 2002—is one marker of the epidemic’s explosive growth. At this writing, an estimated 1,800 people are infected with HIV and 600 die from HIV/AIDS in the country each day. By 2005 it is expected that 6 million South Africans will be infected with HIV. Absent effective intervention, it is projected that women’s life expectancy will drop from fifty-two years in 2001 to thirty-seven years in 2010 and men’s from forty-nine years in 2001 to thirty-eight years.²

In South Africa’s HIV/AIDS epidemic, like that of much of sub-Saharan Africa, a majority of persons living with HIV/AIDS are women and girls. An estimated 57 percent of all cases of HIV/AIDS among adults age fifteen to forty-nine are women. The gender imbalance is most striking among youth: nearly four times as many adolescent girls and young women age fifteen to twenty-four are HIV-positive as their male counterparts.³

Sexual Violence Against Women and Girls in South Africa

Sexual violence against women and girls is a problem of epidemic proportions in South Africa, with child rape as one of its particularly disturbing features.⁴ According to police statistics, 52,107 rapes and attempted rapes were reported to the South African Police Service (SAPS) in 2002.⁵ But this figure certainly underestimates the true extent of the problem. A Department of Health study in 1999 found that 7 percent of women age fifteen to forty-nine reported having ever been raped or coerced to have sex against their will. Only 15 percent of these women had reported such an incident to the police.⁶ A 1999 study of abuse among women eighteen to forty-nine in three South African provinces found that between 4.5 and 7.2 percent of women reported having been raped during their lifetime and that 1.3 percent of the women had been raped in the year prior to the study.⁷

According to police statistics, more than 40 percent of rape survivors who reported their case to the police between February 2002 and March 2003 were girls under eighteen, with 14 percent twelve years or younger.⁸ Experts interpret national Department of Health data to establish that most rapes are of girls age nine to eighteen. If this is accurate, preteens and teenagers are at much higher risk of rape than the population as a whole.⁹ Although reliable numbers are hard to obtain, there is evidence that child rape has become more common in recent years. In 2000 and 2001, the reported incidence of rape and attempted rape among children increased, even as the incidence among adults began to stabilize.¹⁰ Far too many girls have no safe haven from sexual violence: many girls are coerced to have sex and otherwise subjected to sexual harassment and violence by male relatives, boyfriends, schoolteachers and male classmates.¹¹

The South African Police Service has acknowledged that rape is underreported, observing that for children, this may be explained in part by the fact that many are raped by members of their family, which “tend[s] to be kept secret.”¹² Research in South Africa has shown that schoolteachers, relatives and men otherwise known to victims perpetrate a significant percentage of childhood rapes and that fear of retaliation by the perpetrator is among the barriers to reporting these crimes to police.¹³ Many women and girls do not report rape or sexual coercion by intimate partners, because they believe that a husband or boyfriend has a right to demand sex, or they have low expectations of their right to control the terms of their sexual interactions. Studies have documented a range of other obstacles to reporting, which include fear of not being believed; problems of physical access to police; and fear of legal processes involved, including poor treatment by police.¹⁴

Many rape survivors in South Africa may not go to the police because they lack confidence in the criminal justice system and believe that perpetrators will not be punished for their acts. These concerns appear justified: a 2002 government study found that only 7.7 percent of reported rape cases resulted in convictions and that a large number of cases were still being withdrawn after having been registered, despite police instructions not to do so. In many cases, rape survivors gave statements to officers untrained to deal with rape or sexual offence cases in environments that were not private. Investigating officers were not always available, and women and children rape survivors often waited hours before meeting an investigating officer.¹⁵ Police themselves have identified corrupt practices that undermine successful prosecution of rape cases, including acceptance of money or bribes by police, prosecutors, and other court officials to destroy a case, and dockets otherwise being lost, stolen, or destroyed.¹⁶

The Role of Gender-Specific Violence in HIV Transmission

Sexual violence may increase the risk of HIV for all survivors, male and female. Women and girls are physiologically more vulnerable than men and boys to HIV infection during unprotected heterosexual vaginal sex.¹⁷ In addition, forced or coerced sex creates a risk of trauma: when the vagina or anus is dry and force is used, genital and anal injury are more likely, increasing the risk of transmission. Forced oral sex may cause tears in the skin, also increasing the risk of HIV transmission. In cases of gang rape, exposure to multiple assailants increases the risk of transmission. The presence of other sexually transmitted diseases also heightens HIV transmission risk.¹⁸

Women and girls in abusive relationships may have limited capacity to negotiate the terms and conditions of sex, including when and whether sex takes place and whether condoms are used.¹⁹ Violence is a concern both as a mode of transmission of HIV and as a consequence of HIV itself. HIV-positive women who disclose their status are often at risk of violence from their intimate partners, family members, or the community, which may range from emotional abuse to coerced sex and even to homicide.²⁰

Girls and young women face particular risks of contracting HIV through sexual violence.²¹ They are physiologically more vulnerable than older women.²² Some men may rape young women and girls in the belief that having sex with a virgin may cleanse a person of HIV. ²³ The fear of contracting HIV also may drive some men to seek out (and sometimes rape) girls or younger women as sex partners with the idea that they are less likely than older women to be HIV-positive.²⁴ The customary practice of virginity testing may expose girls to an increased risk of sexual violence by publicly marking them as targets for men who seek out virgin girls as sex partners.²⁵ Research has documented that young men’s use of violence and sexual coercion is a “normal” part of everyday life for many young women and girls in South Africa.²⁶

Preventing HIV After Sexual Violence Through HIV Post-Exposure Prophylaxis

The administration of a short and affordable course of antiretroviral drugs following a potential HIV exposure—post-exposure prophylaxis or PEP—can greatly reduce the risk that a survivor of sexual violence will contract HIV from an HIV-positive attacker. The provision of PEP, which was first developed for occupational exposures to HIV (such as when health workers are accidentally pierced by an infected syringe), has been the standard of care for high-risk occupational exposures, including in South Africa, for some years²⁷ and is emerging as the international standard of care for survivors of sexual violence. PEP provision is standard practice in many industrialized countries (including Austria, France, Germany, Italy, Luxembourg, Spain, Switzerland and Australia).²⁸ The World Health Organization is preparing policy guidance for nonoccupational PEP (including rape), expected to be released in 2004.²⁹ In the United States, the states of California, New York, Rhode Island and Massachusetts have official policies recommending PEP following sexual violence.³⁰ Botswana, South Africa’s northern neighbor, has provided PEP for rape survivors through the public health system since 2001.³¹

In April 2002, the South African Cabinet pledged to provide PEP to survivors of sexual violence in all of the country’s nine provinces.³² A national PEP protocol was released and distributed to all provinces at the end of May 2002, requiring that PEP be offered to sexual violence survivors age fourteen and older.³³ In October 2002, the government announced that additional funds would be provided “to cover the training, drugs and HIV test requirement of the program for survivors.”³⁴ In August 2003, a national government task team included PEP for survivors of sexual violence as a core prevention component of a comprehensive health sector response to HIV/AIDS, noting also that provincial and national governments should continue their efforts to secure better prices for antiretroviral drugs for PEP.³⁵

The government’s April 2002 announcement marked an important shift in policy. Before then, PEP was generally unavailable through the public health system, although some service providers in the public and private sectors had offered it to survivors of sexual violence as early as 1997.³⁶

Under the national policy guidelines issued in May 2002, PEP should be offered to all male and female sexual violence survivors fourteen years and older who present to a health facility within seventy-two hours of being raped and who test negative for HIV.³⁷ Survivors who refuse to be tested for HIV cannot receive PEP.³⁸ The national guidelines also instruct that survivors should be counseled about the risks of HIV transmission after rape, told that the efficacy of the particular drugs provided (AZT and 3TC) in preventing HIV in cases of sexual violence is under study and still unknown, and informed of common side effects of the drugs.³⁹

Antiretroviral Drug Therapy and HIV/AIDS

PEP services are centered on the provision of antiretroviral drugs, which have been the object of an extraordinary political battle in South Africa. In wealthy countries since the mid-1990s, antiretroviral drug therapy has been crucial in improving the survival and quality of life for people living with HIV/AIDS and in containing the disease. But the prohibitive cost of antiretroviral medicines has kept them out of reach of most people living with HIV/AIDS in the developing world. In South Africa, efforts to secure these drugs to treat people living with HIV/AIDS have been impeded by international pressure to protect multinational pharmaceutical companies’ patents on antiretroviral drugs as well as misguided political leadership on the national level.

In 1996 South Africa developed a national drug policy, intended to address problems with the affordability and availability of essential medicines to all citizens who needed them. The policy recommended a number of strategies to meet these objectives, including legal and regulatory mechanisms encouraging generic substitution of medicines not under patent, parallel importation of medicines and purchasing of generic medicines on the international market.⁴⁰ The Medicines Act of 1997 authorized compulsory licensing (whereby states authorize generic production of a patented product without the patent holder’s consent)⁴¹ and parallel importation (cross-border trade in a product without permission of the patent holder) ⁴² and promoted the practice of prescribing less expensive generic versions of patented drugs, including antiretroviral drugs essential in fighting HIV/AIDS.⁴³

Although the Medicines Act of 1997 was passed, it did not come into force. In February 1998, the South African Pharmaceutical Manufacturers Association and forty-one multinational drug companies filed an action in the Pretoria High Court to prevent the government from bringing into operation certain sections of the Act that would allow the government to produce or import drugs at lower cost.⁴⁴ Intense lobbying efforts by multinational pharmaceutical companies and the United States government further undermined South Africa’s capacity to implement the provisions of the Act.⁴⁵

In 1999 the Treatment Action Campaign (TAC), a nongovernmental organization with a nationwide base, coordinated an aggressive international campaign in response urging the pharmaceutical industry to lower the prices of patented drugs and calling for the United States government to halt its efforts to roll back the Medicines Act. In September 1999, following intense activist pressure in both South Africa and the U.S., the U.S. government conceded the validity of the Medicines Act and in December 1999, removed South Africa from its list of countries identified as lacking sufficient intellectual property rights protection (the “301 Watch List”).⁴⁶

In April 2001 the Pharmaceutical Manufacturers Association withdrew its case seeking to strike down legislative provisions that would allow the government to produce or import antiretroviral drugs at low cost.⁴⁷ The South African government did not, however, take advantage of this opportunity to mount a publicly funded program to make HIV/AIDS treatment available.

South African Government Interference with Antiretroviral Drug Provision

In 1997, nongovernmental organizations began lobbying the Department of Health to develop a program to prevent mother-to-child transmission of HIV, including by providing AZT (an antiretroviral drug that that reduces the risk of perinatal transmission when administered to pregnant women).⁴⁸ Initially, the health ministry supported these efforts.⁴⁹ But by the end of 1999, South African government officials had begun to express concerns about the safety of antiretroviral drugs. By early 2000, government officials began to question the causal link between HIV and AIDS, suggesting among other things that poverty, not HIV, was the root cause of AIDS.

In a 1999 speech, President Thabo Mbeki questioned the safety of AZT, warning that “the toxicity of this drug is such that it is in fact a danger to health.” Mbeki announced that he had “asked the Minister of Health, as a matter of urgency, to go into all these matters so that, to the extent that is possible, we ourselves, including our country's medical authorities, are certain of where the truth lies.”⁵⁰ Two weeks later, Minister of Health Manto Tshabalala-Msimang told the National Assembly that though she was aware that AZT reduced perinatal HIV transmission, “there are other scientists who say that not enough is yet known about the effects of the toxic profile of the drug, that the risks might well outweigh the benefits, and that the drug should not be used.”⁵¹ In early 2000, the Medicines Control Council issued a report concluding, consistent with international medical consensus, that the benefits of AZT use outweighed their risks, but political opposition to its use continued.⁵²

By early 2000, Mbeki had begun to solicit the opinions of AIDS “denialists” or “dissidents,” a small group of scientists and activists who believe that AIDS in Africa is not caused by HIV, but by poverty, poverty-related conditions and illnesses (such as malnutrition and tuberculosis), and drugs used to treat HIV.⁵³ AIDS denialists also claim that the AIDS epidemic is a huge medical fraud promoted by pharmaceutical companies, scientists and doctors to provide profit and job security for themselves and that AIDS treatments (such as antiretroviral drugs) are themselves poisons.⁵⁴

In May 2000, Mbeki convened a presidential AIDS advisory panel to consider both the causes of AIDS and appropriate responses to the HIV/AIDS epidemic in South Africa.⁵⁵ The panel was made up of thirty-three scientists of whom two-thirds subscribed to the orthodox scientific view that HIV causes AIDS, while the remaining one-third were AIDS dissidents.⁵⁶ Mbeki’s questions about the causes of AIDS, which reflected the influence of the denialist arguments, gained currency in the African National Congress (ANC) and in the government and began to influence health policy at the national and provincial level.⁵⁷

In August 2000, a committee of the national Minister of Health and the nine provincial cabinet health ministers (the Minister and the Members of the Executive Council, or MinMEC) took the decision to provide the antiretroviral drug nevirapine at a small number of pilot sites throughout the country once it was registered with the Medicines Control Council.⁵⁸ This decision ignored the recommendation of the head of the national AIDS office for HIV/AIDS to provide nevirapine to all HIV-positive pregnant women who already knew their status as well as scientific evidence on the safety and efficacy of its use in this context.⁵⁹

In August 2001, following the withdrawal of the Pharmaceutical Manufacturers Association’s case challenging the Medicines Act, a coalition including TAC sued the government to require it to provide antiretroviral drugs in the public sector to all HIV-positive women to prevent mother-to-child HIV transmission. In December 2001, after the Pretoria High Court ruled that the government’s refusal to provide antiretroviral drugs to HIV-positive pregnant women violated the constitution and ordered it to provide these medications, Tshabalala-Msimang announced that she would seek leave to appeal this decision directly to the Constitutional Court.⁶⁰ And in February 2002, Tshabala-Msimang announced that contrary to recommendations in a Department of Health sponsored report that nevirapine “can and should be provided immediately to all pregnant women who are already known to be HIV positive,” the health ministry would not make a decision on the program until May 2002, after it had been running for one year.⁶¹

Provincial Government Interference with PEP Provision Prior to April 2002

Provincial governments share responsibility with the national government for health policy and provision and are responsible for implementing national health policy.⁶² In some provinces, public health officials who provided PEP as a matter of conscience to sexual violence survivors were punished by provincial health officials blindly following a misguided and deadly national government policy opposing antiretroviral drug provision.

The eastern province of Mpumalanga is a case in point. In early 2000, the Greater Nelspruit Rape Intervention Programme (GRIP), an NGO that provides free counseling and support services for rape survivors, including PEP, opened an office in an unused room at a state hospital in Nelspruit, Mpumalanga.⁶³ GRIP had been asked to provide these services by hospital superintendent Dr. Thys von Mollendorff, who had been unable to secure a budget or staff to improve his hospital’s existing internal services for rape survivors.⁶⁴

In October 2000 provincial health minister Sibongile Manana criticized GRIP for providing antiretroviral drugs to rape survivors, reportedly accusing GRIP and von Mollendorff of trying to poison black people and undermining national government policy by doing so.⁶⁵ She ordered GRIP out of the public hospitals, fired the district health manager for failing to get written permission for the group to use its premises, and charged von Mollendorff and several other top hospital administrators with gross misconduct for their tacit support of GRIP’s work.⁶⁶

Manana eventually withdrew these charges, but in November 2001, she suspended von Mollendorff, charging him with gross insubordination for allowing GRIP to dispense drugs in a manner the provincial Department of Health considered a violation of national and provincial policy forbidding the use of antiretroviral drugs in public hospitals.⁶⁷ The Department settled its case with von Mollendorff in March 2003, agreeing to compensate him financially and pay his court costs.⁶⁸ Manana has gone to court to evict GRIP from the public hospitals on at least two other occasions, in May 2001 and January 2003.⁶⁹

Mpumalanga’s conflicts with GRIP contributed to misinformation about antiretroviral drugs. At one point, the African National Congress (ANC) Women’s League reportedly approached GRIP’s black female counselors, promising them jobs with the provincial government if they signed a petition denouncing GRIP.⁷⁰ The petition stated: “[A]s card-carrying members of the ANC and the ANC W/L [Women’s League], we distance and dissociate ourselves from all activities of GRIP. As members of the ANC, we cannot defy our government and its policies. We cannot defy our President Thabo Mbeki in his call against the use of AZT. We cannot defy our national MEC Manto [T]shabalala. We cannot defy our provincial MEC Sibongile Manana.”⁷¹ The petition referred to GRIP as “those who buy AZT to poison and kill our people” and compared GRIP and its supply of antiretrovirals to the work of Wouter Basson, the apartheid-era scientist who was tried for murdering black people during drug experiments.⁷²

In Northern Cape province, a doctor in Kimberley in November 2001 provided PEP to a nine-month-old rape survivor, apparently pursuant to a 1997 provincial policy that the doctor’s discretion should be used regarding the administration of PEP in rape cases.⁷³ Following news reports that the child had been treated with AZT, a high-level health official in Northern Cape chastised the hospital chief executive officer for having permitted this, cross-examining him on why the child had been given antiretroviral drugs. The official also demanded to know whether the practice had been widespread. The hospital subsequently issued a circular making clear that doctors were barred by National Department of Health HIV/AIDS policy from administering antiretroviral drugs to rape survivors.⁷⁴

Recent Mixed Messages on Antiretroviral Drug Provision in the Public Health System

In April 2002 the South African Cabinet issued a policy statement on HIV/AIDS that the “government’s starting point is based on the premise that HIV causes AIDS,” and made a commitment to provide antiretroviral drugs to prevent mother-to-child-transmission of HIV and to prevent HIV transmission due to sexual violence.⁷⁵ While this statement signaled a change in the government’s position, in fact the government continued to send mixed signals in its response to the epidemic. The government was still engaged in a court battle contesting High Court orders requiring the government to provide the antiretroviral drug nevirapine to prevent mother-to-child transmission.⁷⁶ And the government continued to include prominent AIDS denialists at high-level government meetings and as members of the President’s AIDS Advisory Panel.⁷⁷

In August 2003 the South African government stated that HIV causes AIDS and that antiretroviral drugs can mitigate the impact of the disease, and directed the Department of Health “as a matter of urgency” to develop a detailed operational plan for a nationwide antiretroviral treatment program.⁷⁸ On November 19, 2003, the Cabinet approved a plan to provide comprehensive HIV/AIDS care and treatment throughout South Africa, stating its intention to provide antiretroviral drugs as part of a comprehensive approach to the treatment of people living with HIV/AIDS. The plan confirmed the government’s prior commitment to providing PEP and committed it to investing substantial resources to upgrade the national health system, including by implementing a training program for health professionals regarding use of antiretroviral drugs. It also committed itself to an extensive education campaign as part of the plan.⁷⁹ It remains to be seen whether, and with what speed, the health minister and the government will act to implement this plan.

Meanwhile, just as Mbeki’s Cabinet declared itself ready to authorize the use of antiretroviral drugs in government health services, other parts of the government were taking steps to make it more difficult to get such drugs. On the eve of the Cabinet’s August 2003 announcement, the South African Medicines Control Council questioned the use of nevirapine, threatening to revoke its approval unless its manufacturer provided new evidence of the drug’s safety within ninety days.⁸⁰ In July 2003 the requirement that government provide antiretroviral drugs and other medical treatment to survivors of rape and other sexual offences was deleted from a parliamentary bill.⁸¹ According to the State Law Advisors, the committee considering the bill was concerned about the cost of providing treatment to all sexual offence survivors and the system’s capacity to handle this service.⁸² In January 2004, the chair of the committee reviewing the bill announced that it would include a clause making clear that rape survivors would be entitled to receive PEP services from designated government clinics.⁸³

Health and Social Service Provision

Resource constraints compound barriers posed by government failure to provide clear messages in support of PEP. A lack of sufficient financial and human resources poses considerable obstacles to health and social service provision in South Africa, particularly in areas historically disadvantaged under apartheid, such as former “homeland” areas and townships and shanty towns—known as squatter camps—in urban areas.⁸⁴ South Africa has taken significant steps to redistribute health sector services to historically disadvantaged areas, making access to primary health care in rural areas a priority.⁸⁵ But many South Africans still have significant problems obtaining adequate—or any—health care. Unequal resource allocation, scarcity of clinics to cover rural areas, and difficulty in retaining medical staff within the public health sector and within South Africa all contribute to these problems.⁸⁶

Health services, social services and specialized police services that provide the structures and personnel for making PEP provision work are severely understaffed and underfunded in many parts of South Africa. Police officers who are meant to transport sexual violence survivors to health facilities may find themselves without enough working vehicles to provide this important service. Many have caseloads so high that they lack time to conduct proper investigations.⁸⁷ Specialized police charged with handling crimes related to family violence, rape and other sexual offences are not posted in many rural police stations.⁸⁸

Many health care practitioners lack sufficient training and expertise regarding the examination and treatment of rape survivors. Until recently, district surgeons—medical doctors appointed by government to perform clinical medico-legal examinations—or physicians in private practice performed forensic examinations on sexual violence victims.⁸⁹ In 1999 the Minister of Health announced that district surgeons would be phased out and replaced by “accredited health care practitioners,” who would be physicians or nurses that had completed specialized training and were registered with the South African Health Professions Council or Nursing Council.⁹⁰ Consolidating medical services in one location would improve the chances that sexual violence survivors would both undergo forensic examination and get medical treatment for the assault.⁹¹ In practice, however, as district surgeons have been phased out, insufficient training has been provided to medical practitioners who were to replace them to ensure that the district surgeons’ expertise in performing clinical forensic examinations remained in the health service.⁹²

Many sexual violence survivors’ first contact with the health system is with the casualty (accident and emergency) department at a hospital, where treating physicians and nurses are often overworked, inexperienced, and untrained to do clinical forensic exams or manage rape cases.⁹³ In early 2003 the national Department of Health announced its decision to train forensic nurses throughout the health system to assume some of these responsibilities.⁹⁴

Notwithstanding these resource problems, South Africa has the capacity to provide PEP in more areas than it is doing so. Financial resources for HIV/AIDS increased substantially in 2003/2004: the national government allocated more than 2 billion rand (U.S.$300,000,000)⁹⁵ (8.6 percent of the overall social services budget) to fighting HIV/AIDS, a greater than 75 percent increase from the amount set aside in the budget the previous financial year.⁹⁶ In February 2004 finance minister Trevor Manuel announced South Africa’s plans to allocate an additional 2.1 billion rand (U.S.$315,000,000) to HIV/AIDS, boosting the government commitment to fight HIV/AIDS over the next three years to more than 12 billion rand (1,800,000,000).⁹⁷

And PEP can—and should—be integrated into existing health care services that the government has promised. Many of the services required as part of prevention of mother-to-child HIV transmission programs (which the health ministry has been establishing since 2001), as well as for the treatment plan to which the government committed itself in November 2003, overlap with those required for PEP provision. HIV testing and counseling, effective drug procurement systems, and staff trained regarding HIV/AIDS and antiretroviral drugs are part of all of these programs. These currently exist at some level throughout the country. South Africa’s recent commitment to a comprehensive HIV/AIDS care and treatment plan, which includes upgrading the national healthcare system, extensive training of health care workers, and massive education campaigns on prevention and treatment of HIV/AIDS, should greatly enhance the provision of PEP services.⁹⁸

¹ South African Department of Health, National HIV and Syphilis Antenatal Sero-Prevalence Survey in South Africa: 2002, September 9, 2003, p. 11 & Appendix 1. Compare, e.g., Government of India, National AIDS Control Organization, “HIV Estimates for Year 2001,” http://www.naco.nic.in/indianscene/esthiv.htm (retrieved October 10, 2003) (estimating 4.58 million persons in India living with HIV/AIDS).

² South African Department of Labour, HIV/AIDS Technical Assistance Guidelines, May 2003, p. 4.

³ Rob Dorrington et al., HIV/AIDS Profile in the Provinces of South Africa, November 2002, p. 4.

⁴ In this report, when citing South African official documents that use the term “rape,” the term is used consistent with the current definition in South African law, limited to unlawful sexual intercourse by a male with a female without her consent. Otherwise, the terms “rape” and “sexual violence” are used more broadly to describe acts of coercive sexual penetration that include and go beyond the current South African legal definition of rape, including, but not limited to, oral and anal penetration. The word “child” in this report refers to anyone under the age of eighteen. The U.N. Convention on the Rights of the Child defines as a child “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier." Convention on the Rights of the Child, adopted November 20, 1989, 1577 U.T.S. 3 (entered into force September 2, 1990), art. 1.

⁵ South African Police Service, “Crime Statistics as Released 2003-9-22,” http://www.saps.gov.za/8_crimeinfo/200309/rape.htm (retrieved October 1, 2003).

⁶ Rachel Jewkes and Naeema Abrahams, “The Epidemiology of Rape and Sexual Coercion in South Africa: An Overview,” Social Science and Medicine, vol. 55 (2002), pp. 1235-36 (analyzing results of Department of Health, South African Demographic & Health Survey, 1999).

⁷ Rachel Jewkes et al. “ ‘He Must Give Me Money, He Mustn’t Beat Me:’ Violence Against Women in Three South African Provinces,” Medical Research Council Technical Report, August 1999, pp. 11-12.

⁸ South African Police Service, Annual Report of the National Commissioner of the South African Police Service 1 April 2002 to 31 March 2003, 2003, p. 37.

⁹ Jewkes and Abrahams, “The Epidemiology of Rape and Sexual Coercion in South Africa,” p. 1234.

¹⁰ Crime Information Analysis Center (CIAC), South African Police Service, “The Reported Serious Crime Situation in South Africa for the Period January - September 2001,” http://www.saps.gov.za/8_crimeinfo/200112/report.htm (retrieved October 1, 2003).

¹¹ See, e.g., Human Rights Watch, Scared at School: Violence Against Girls in South African Schools (New York: Human Rights Watch, 2001).

¹² CIAC, “The Reported Serious Crime Situation in South Africa for the Period January – September 2001.”

¹³ SeeJulia C. Kim, “Rape and HIV Post-Exposure Prophylaxis: the Relevance and Reality in South Africa,” Discussion Paper, WHO Meeting on Violence Against Women and HIV/AIDS: Setting the Research Agenda, Geneva 23-25 October, 2000, pp. 5, 6; Human Rights Watch, Scared at School: Violence Against Girls in South African Schools (New York: Human Rights Watch, 2001), pp. 71-87.

¹⁴ Kim, “Rape and HIV Post-Exposure Prophylaxis: the Relevance and Reality in South Africa,” p. 6.

¹⁵ Jaspreet Kindra and Ramses Gabrielse, “Most Rapists Go Unpunished, Says Report,” Mail & Guardian, November 15-21, p. 3. A 2003 study of cases reported to police in eight police areas in South Africa found that only 6.6 percent of rape cases resulted in convictions and that 15.8 percent were withdrawn in court. South African Law Commission, Conviction Rates and Other Outcomes of Crimes Reported in Eight South African Police Areas, 2003, p. 28.

¹⁶ Neil Andersson et al. , Beyond Victims and Villains: The Culture of Sexual Violence in South Johannesburg (Johannesburg: CIETafrica, 2000), pp. 87-89. The gap between legal and popular definitions of rape further complicates the ability to characterize the magnitude of sexual violence. Rape is defined in current South African law to exclude nonconsensual anal and oral sex and penetration by objects other than a penis. Individual perceptions of rape may vary depending on the relationship of the victim to the perpetrator, the ages of those involved, prevalent notions of gender roles in decision-making about sex, and the conditions under which the act occurred. Many women and girls do not characterize forced sex by intimate partners as rape, which they confine to acts by a stranger or gang rape. See Jewkes and Abrahams, “The Epidemiology of Rape and Sexual Coercion in South Africa,” pp. 1231-1244; see alsoKatherine Wood and Rachel Jewkes, “Love is a Dangerous Thing: Micro-dynamics of Violence in Sexual Relationships of Young People in Umtata,” CERSA (Women’s Health) Technical Report, Medical Research Council (Pretoria: 1998).

¹⁷ Factors that contribute to this increased risk include the larger surface area of the vagina and cervix, the high concentration of HIV in the semen of an infected man, and the fact that many of the other sexually transmitted diseases that increase HIV risk are often left untreated (because they are asymptomatic or because health care is inaccessible). Girls and young women face even greater risk than adult women, because the vagina and cervix of young women are less mature and are less resistant to HIV and other STIs, such as chlamydia and gonorrhea, that increase HIV vulnerability; because changes in the reproductive tract during puberty make the tissue more susceptible to penetration by HIV; and because young women produce less of the vaginal secretions that provide a barrier to HIV transmission for older women. See, e.g.,Global Campaign for Microbicides, “About Microbicides: Women and HIV Risk,” http://www.global-campaign.org/womenhiv.htm (retrieved August 28, 2003); UNAIDS, “AIDS: Five Years since ICPD—Emerging Issues and Challenges for Women, Young People, and Infants,” Geneva, 1998, p. 11; The Population Information Program, Center for Communications Programs, The Johns Hopkins University, “Population Reports: Youth and HIV/AIDS,” vol. 23, no. 3, Fall 2001, p. 7 (citing studies).

¹⁸ See United States Centers for Disease Control and Prevention, Fact Sheet: Prevention and Treatment of Sexually Transmitted Diseases as an HIV Prevention Strategy [online], http://www.cdc.gov/hiv/pubs/facts/hivstd.htm (retrieved October 27, 2003).

¹⁹ SeeLisa Vetten and Khailish Bhana, “Violence, Vengeance and Gender: a Preliminary Investigation into the Links Between Violence Against Women and HIV/AIDS in South Africa,” Center for the Study of Violence and Reconciliation, 2001, p.10 (citing studies reporting that many women and girls avoided discussing or requesting the use of condoms for fear of violence or rejection by their partners).

²⁰ See, e.g., Vetten and Bhana, “Violence, Vengeance and Gender,” pp. 11-12, 19 (citing cases). One woman’s husband burned her over a stove when she disclosed to him that she was HIV-positive; when her four-year-old son tried to stop him, he was burned as well. Ibid., p. 11. More recently, on December 14, 2003, Lorna Mlosana, a 21-year-old AIDS activist, was beaten to death in the toilet of a Khayelitsha bar by several men who had raped her after she revealed to them that she was HIV-positive. Rory Carroll, “AIDS Activist Murdered in Gang Rape,” The Guardian, December 22, 2003. This attack evokes memories of the 1998 murder of Gugu Dlamini, a South African woman who was beaten to death after openly declaring that she was HIV-positive.

²¹ A recent study of HIV/AIDS in South Africa found that 5.6 percent of children ages two to fourteen in the sample were HIV-positive and that most of this infection could not be attributed to mother-to-child transmission, and suggested sexual abuse as one of the factors that may contribute to this finding. Nelson Mandela/HSRC Study of HIV/AIDS, South African National HIV Prevalence, Behavioural Risks and Mass Media, Household Survey, 2002, p. 63.

²² See note 17, above.

²³ The belief that sexual intercourse with a virgin can “cleanse” a man of HIV/AIDS reportedly has wide currency in South Africa, but the extent to which it is believed, and which it has been a motivating factor in child rape, or caused an increase in it, is debated. See, e.g., Lovelife, “Hot Prospects, Cold Facts,” http://www.kff.org/content/2001/20010314/ (retrieved August 28, 2003) (25 percent of teenage South Africans surveyed did not know that sex with a virgin did not cure AIDS); Charlene Smith, “The Virgin Rape Myth - a media creation or a clash between myth and a lack of HIV treatment,” presentation at IASSCS International Conference on Sex and Secrecy, June 2003; Rachel Jewkes, Lorna Martin, Loveday Penn-Kekana, “The Virgin Cleansing Myth: Cases of Child Rape Are Not Exotic,” The Lancet, vol. 359, no. 9307 (February 23, 2002), p. 711; see also Suzanne Leclerc-Madlala, “Protecting Girlhood? Virginity Revivals in the Age of AIDS,” Agenda, vol. 56 (2003), pp. 22-23 (citing studies of extent of belief in virgin cure).

²⁴ Kim, “Rape and HIV Post-Exposure Prophylaxis: the Relevance and Reality in South Africa,” p. 5,

²⁵ Virginity testing, which involves inspection of girls’ (and less often, boys’) genitals to ascertain whether they have had sex, has been lauded as a way to promote sexual abstinence among young people, thereby preventing HIV/AIDS. The concern that the practice, which may include the public declaration of virginity and marking of girls’ faces in distinctive ways to identify virgins, may instead increase the risk of sexual violence, and therefore HIV/AIDS has led children’s rights and HIV/AIDS advocates to oppose it. See Submission by The Children's Institute, The Aids Law Project, The Alliance for Children's Entitlement to Social Security on the Child Care Act Discussion Paper Endorsed By: Aids Consortium, Aids Legal Network, Children’s Rights Centre, April 2002, p. 16; Suzanne Leclerc-Madlala, “Protecting Girlhood? Virginity Revivals in the Age of AIDS,” Agenda, vol. 56 (2003), pp. 16-25; Fiona Scorgie, “Virginity Testing and the Politics of Sexual Responsibility: Implications for AIDS Intervention,” African Studies, vol. 61, no. 1 (2002).

²⁶ Jewkes and Abrahams, “The Epidemiology of Rape and Sexual Coercion in South Africa,” pp. 1231-1244; Neil Andersson, et al., “Beyond Victims and Villains: The Culture of Sexual Violence in Johannesburg, ” pp. 48-52.

²⁷ See South Africa Department of Health, HIV/AIDS and STD Directorate, Management of Occupational Exposure to the Human Immunodeficiency Virus (HIV) (1999).

²⁸ See Michelle Roland, “Prophylaxis Following Nonoccupational Exposure to HIV,” http://hivinsite.ucsf.edu/InSite.jsp?doc=kb-07-02-07 (retrieved October 5, 2003) (citing policies); D. Rey et al., “Post-exposure Prophylaxis After Occupational and Non-occupational Exposures to HIV: an Overview of Policies Implemented in 27 European Countries,” AIDS Care, vol. 12, no. 6 (2000), pp. 695-701.

²⁹ E-mail communication with David Miller, prevention team, HIV/AIDS Department, World Health Organization, February 17, 2004. The United Nations provides PEP to its staff in case of rape, and its Inter-Agency Group on Reproductive Health in Refugee Situations has recommended that PEP be available for rape survivors in emergency and conflict situations and has requested UNFPA to include PEP drugs in the reproductive health kits used in these settings. World Health Organization, Post-Exposure Prophylaxis, http://www.who.int/hiv/topics/prophylaxis/en/index.html (retrieved June 3, 2003); e-mail communication with Wilma Doedens, technical officer, Humanitarian Response Unit, UNFPA, January 26, 2004.

³⁰ Except for Italy, California and New York, all of the PEP policies mentioned above cover other high-risk nonoccupational exposures, such as consensual sex and injection drug use. See Michelle Roland, “Prophylaxis Following Nonoccupational Exposure to HIV,” (citing policies); D. Rey et al., “Post-exposure Prophylaxis After Occupational and Non-occupational Exposures to HIV: an Overview of Policies Implemented in 27 European Countries,” pp. 695-701. In 2003, California enacted legislation creating a task force to create treatment guidelines for PEP for non-assault nonoccupational HIV exposure. Cal. Health & Safety Code Section 121348- 121348.2 (2003).

The American Academy of Pediatrics also recommends PEP for high-risk exposures (including sexual assault) with persons known to be infected with HIV. Peter L. Havens and the Committee on Pediatric AIDS, “Postexposure Prophylaxis in Children and Adolescents for Nonoccupational Exposure to Human Immunodeficiency Virus,” Pediatrics, vol. 111, no. 6 (June 2003), pp. 1475-1489. Because obtaining the HIV status of an alleged assailant after rape or other sexual violence is highly unlikely and complicated by legal and ethical difficulties, PEP protocols in industrialized countries have developed a method of risk stratification that considers the likelihood of the assailant’s risk of being HIV-positive or recommend the assailant’s HIV status not be a factor in considering whether to provide PEP. See O. Lawrence, “HIV Testing, Counseling, and Prophylaxis After Sexual Assault,” JAMA, vol. 271, no. 18 (1994), pp. 1437-44; Mitchell Katz and Julie Gerberding, “The Care of Persons with Recent Sexual Exposure to HIV,” Annals of Internal Medicine, vol. 128 (February 15, 1998), pp. 306-311 (if HIV status of source contact unknown, treatment decisions should be based on likelihood of source contact’s being HIV-positive, taking into account that person’s HIV risk behaviors and the prevalence of HIV/AIDS in the community); ER Wiebe et al., “Offering HIV Prophylaxis to People Who Have Been Sexually Assaulted: 16 Months’ Experience in a Sexual Assault Service,” Canadian Medical Association Journal, vol. 162, no. 5 (2000), pp. 641-45; New York State Department of Health, “Recommendations for Post-Exposure Prophylaxis;” European Project on Non-Occupational Post Exposure Prophylaxis, Management of Non-Occupational Post Exposure Prophylaxis to HIV (NONOPEP): Sexual, Injecting Drug User or Other Exposures (recommending PEP in cases of rape where HIV prevalence is at least 15 percent). In South Africa, the HIV status of the perpetrator is not a consideration in the decision whether to administer PEP to rape survivors. 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).

As of February 1, 2004, the cost of a 28 day course of AZT and 3TC tablets is 189.55 rand (U.S.$28.43); a 28 day course of pediatric syrup sufficient for a six-year-old child is 290.78 rand (U.S.$43.62) (using full bottles) or 264.89 rand (U.S.$39.75) (decanted). E-mail communication with Dr. Neil McKerrow, chief specialist and head of pediatrics and child health, Pietermaritzburg Metropolitan Hospitals, Pietermaritzburg, February 12, 2004.

³¹ Human Rights Watch telephone interview with Dr. Williams Jimbo, AIDS/STD Unit, Botswana Ministry of Health, February 16, 2003; see also Botswana Ministry of Health, Revised Guidelines for the Use and Monitoring of Antiretroviral Drugs in Botswana, February 2002, pp. 25-26.

³² Cabinet of South Africa, “Cabinet Statement on HIV/AIDS, 17 April 2002,” http://www.gov.za/speeches/cabinetaids02.htm.

³³ Department of Health, “Policy Guideline for Management of Transmission of Human Immunodeficiency Virus (HIV) and Sexually Transmitted Infections in Sexual Assault.” As of this writing, no national policy guideline has been finalized for children less than fourteen. Several provinces, including Gauteng, KwaZulu-Natal and Eastern Cape have developed guidelines for children under fourteen.

³⁴ Cabinet of South Africa, “An Update on Cabinet’s Statement of 17 April 2002 on fighting HIV/AIDS,” October 9 2002, http://www.gov.za/issues/hiv/cabinetaids9oct02.htm, (retrieved March 7, 2003); see also National Treasury, Medium Term Budget Policy Statement 2002 (29 October 2002) (“Additional funds will go towards the roll-out of . . . post-exposure prophylaxis . . . in line with Cabinet’s statement of 17 April 2002. A technical committee is currently reviewing options, costs and affordability to take forward the Cabinet decision.”), p. 64.

³⁵ Summary Report of the Joint Health and Treasury Task Team Charged with Examining Treatment Options to Supplement Comprehensive Care for HIV/AIDS in the Public Health Sector, August 1, 2003.

³⁶ These initiatives include the nonprofit, community-based Greater Nelspruit Rape Intervention Program (GRIP), established in March 2000, which set up public hospital-based rape care centers that provide PEP; the Groote Schuur and G.F. Jooste public hospitals in Cape Town, which have offered PEP since 1998 and 2000, respectively; the Albertina Sisulu Rape Crisis Centre, at Sunninghill Hospital in Johannesburg, which has offered PEP since 1998; the Rainbow Clinic at Coronation Hospital and the Teddy Bear Child Abuse Clinic, which have offered PEP to child rape survivors since 1997; and Netcare Hospital Group, which has offered PEP to rape survivors since 2000. Julia C. Kim et al., “Rape and HIV Post-Exposure Prophylaxis: Addressing the Dual Epidemics in South Africa,” Reproductive Health Matters, vol. 11, no. 22 (2003), pp. 101-112; Human Rights Watch interview with Dr. Linda Cartwright, Rainbow Clinic, Johannesberg, May 19, 2003; Human Rights Watch interview with Dr. Lorna Jacklin, Teddy Bear Child Abuse Clinic, Johannesburg, May 20, 2003; Human Rights Watch interview with Mandé Toubkin, coordinator, Netcare Sexual Assault Crisis Centre, 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. Western Cape has offered PEP to sexual violence survivors as a matter of provincial policy since 2001.

³⁷ South African Department of Health, “Policy Guideline For Management Of Transmission Of Human Immunodeficiency Virus (HIV) and Sexually Transmitted Infections In Sexual Assault.” Assessing HIV status before providing PEP is a step that is not unique to PEP procedures in South Africa because the PEP course of antiretroviral drugs will obviously not be useful to prevent HIV for rape survivors who are already HIV-positive, and some experts have raised the concern that the PEP drugs may lead to the development of antiretroviral drug resistance, which would complicate longer-term treatment for someone living with AIDS. However, because PEP must be initiated promptly after rape, and because some individuals may be unwilling or unable to make a quick, informed decision about HIV testing, Human Rights Watch recommends, consistent with jurisdictions both within and outside South Africa, that PEP not be delayed due to reluctance or refusal to be tested for HIV. See, e.g., Western Cape Province Department of Health, Provincial Policy on the Management of Survivors of Rape and Sexual Assault (2004); Joan E. Myles and Joshua Bamberger. Offering HIV Prophylaxis Following Sexual Assault: Recommendations for the State of California. San Francisco: The California HIV PEP after Sexual Assault Task Force in conjunction with the California State Office of AIDS. 2001.

³⁸ Ibid.

³⁹ Ibid. The efficacy of PEP following sexual violence is presumed based on scientific evidence of the efficacy of antiretroviral therapy (ART) in preventing HIV transmission after occupational exposure and preventing mother-to-child HIV transmission. Joan Stephenson, “PEP Talk: Treating Nonoccupational HIV Exposure,” JAMA, vol. 289, no. 3 (January 15, 2003), pp. 287-288; see also Michelle Roland, “Prophylaxis Following Occupational Exposure to HIV,” HIV InSite Knowledge Base Chapter, April 2003; Peter L. Havens and the Committee on Pediatric AIDS, “Postexposure Prophylaxis in Children and Adolescents for Nonoccupational Exposure to Human Immunodeficiency Virus,” Pediatrics, vol. 111, no. 6 (June 2003), pp. 1475-1489; AIDSMap, “Treatment during Primary Infection: PEP,” http://www.aidsmap.com/treatments/ixdata/english/082ab2c6-5bcc-4ddd-ac7e-8e56c570228a.htm (all citing studies). Animal studies initiating ART within seventy-two hours of exposure and continued for twenty-eight days support the biological plausibility of providing ART following sexual exposure. Ibid. Prospective, randomized, controlled studies to prove the efficacy of PEP are unlikely because of the ethical concerns arising from withholding PEP in the face of converging evidence in its favor, the size and cost of such studies, and the frequent inability to attribute HIV seroconversion to the perpetrator of sexual violence versus another exposure. Roland, “Prophylaxis Following Occupational Exposure to HIV.”

Data from observational cohort studies of PEP administered after sexual exposure show very few cases of HIV transmission following PEP. See ibid. (citing studies); A. Grulich et al., “Highly targeted use of non-occupational post-exposure prophylaxis (NPEP) in Australia.” In: The 2nd IAS Conference on HIV Pathogenesis and Treatment. Paris, France, 2003; François Bela et al., “Programme Médical de Prise en Charge des Personnes Victimes de Violence Sexuelle Brazzaville-République du Congo. Médecins Sans Frontières. March 2000-February 2002,” Centre Collaborateur de l’OMS pour la Recherche en Epidémiologie et la Réponse aux Maladies Emergentes, May 2002 . A study in South Africa showed that only one of 435 sexual violence survivors who received PEP within seventy-two hours of assault subsequently developed HIV infection. Adrienne Wulfsohn et al., “Post-Exposure Prophylaxis for HIV After Sexual Assault in South Africa,” poster presentation at 10^th Conference on Retroviruses and Opportunistic Infections, Boston, Massachusetts, February 10-14, 2003. These data are limited, however, by lack of information regarding who actually took PEP drugs and limited return (173 of 435) for follow-up by survivors.

⁴⁰ South Africa Department of Health, National Drug Policy, 1996.

⁴¹ Compulsory licensing and parallel importation are mechanisms by which poor countries can contain the high cost of drugs and have been supported based on various public interest grounds, including public health, economic development and national defence. The World Trade Organization’s Trade Related Aspects of Intellectual Property Agreement (TRIPS), to which South Africa is a party, permits countries facing a “national emergency or other circumstances of extreme urgency or for public non-commercial use” to issue compulsory licenses without first making an effort to get the patent-holder’s consent, as long as such countries abide by safeguards in TRIPS, including adequate compensation to patent owners. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Annex 1C, 33 I.L.M. 1125, 1168 (1994), arts. 31(b, h). Parallel importation is also authorized under TRIPS. See ibid., art. 6.

⁴² Because patent-holders sell at different prices in different markets, parallel importation permits countries with limited resources to buy drugs at the lowest world price and then redistribute the drugs domestically.

⁴³ Medicines and Related Substances Control Amendment Act, Act No. 90 of 1997, amending the Medicines and Related Substances Control Act, No. 101 of 1965, sections 15C, 22F. See also Andy Gray et al., “Policy Change in a Context of Transition: Drug Policy in South Africa 1989-1999,” Center for Health Policy, University of Witswatersrand, July 2002, pp. 25-40.

⁴⁴ The plaintiffs claimed that the Act granted unconstitutional power to revoke patent rights and did not comply with TRIPS. See Pharmaceutical Manufacturers Association of South Africa et al. v The President of the Republic of South Africa, et al., Case No. 4183/98 (1998).

⁴⁵ Between 1997 and 1999, the U.S. exerted significant pressure on South Africa with respect to the Medicines Act in binational meetings and other international fora. On April 30, 1999, following intensive lobbying by the pharmaceutical industry, the U.S. government put South Africa on its “301 Watch List,” initiating a special out-of-cycle review of South Africa’s intellectual property policy. Among the reasons cited for this decision were that the Medicines Act “appear[ed] to grant the Health Minister ill defined authority to issue compulsory licenses, authorize parallel imports, and potentially otherwise abrogate patent rights” and that “[d]uring the past year, South African representatives have led a faction of nations in the World Health Organization (WHO) in calling for a reduction in the level of protection for pharmaceuticals in TRIPS.” Office of the United States Trade Representative, “USTR Announces Results of Special 301 Annual Review,” 99-41, April 30, 1999. See also James Love, director, Consumer Project on Technology, “What is the United States’ Role in Combating the Global AIDS Epidemic?” Statement before the Subcommittee on Criminal Justice, Human Resources and Drug Policy, Committee on Government Reform, July 22, 1999 (summarizing U.S. trade policy and dispute over Medicines Act).

⁴⁶ Office of the United States Trade Representative, “U.S.-South Africa Understanding on Intellectual Property,” 99-76, September 17, 1999; Office of the United States Trade Representative, “The Protection of Intellectual Property and Health Policy,” 99-98, December 1, 1999.

⁴⁷ See Jean-Pierre Garnier, “We Have a Deal: A Drug Company Boss Explains the Climbdown in South Africa,” Guardian, April 20, 2001 (statement by GlaxoSmithKline chief executive); “Treatment Action Campaign releases statement on the Lawsuit: An Explanation of the Medicines Act and the Implications of the Court Victory,” http://www.tac.org.za/ (retrieved October 8, 2003); “Court Case Between 39 Pharmaceutical Firms and the South African Government,” http://www.cptech.org/ip/health/sa/pharma-v-sa.html (retrieved October 8, 2003) (catalog of legal documents and news articles relating to the dispute).

⁴⁸ HIV can be transmitted from an HIV-infected mother to her child during pregnancy, labor and delivery, or through breastfeeding. Research first demonstrated in 1994 that the administration of the antiretroviral drug zidovudine (AZT) to HIV-infected pregnant women reduces the risk of mother-to-child HIV transmission. In 1998, a groundbreaking study showed that a short course of AZT given to the mother and the child, beginning at thirty-six weeks of pregnancy, greatly reduced mother-to-child HIV transmission. Nancy Wade et al., “Abbreviated Regimens of Zidovudine Prophylaxis and Perinatal Transmission of the Human Immuno Deficiency Virus,” New England Journal of Medicine, vol. 339, no. 20 (November 12, 1998), pp. 1409-14. A single dose of nevirapine given to the mother during labor, followed by a single dose to the infant shortly after birth, has also been shown to reduce this risk, as have combination regimens with AZT and lamivudine (3TC). See World Health Organization, “Prevention of Mother-to-Child Transmission of HIV: Selection and Use of Nevirapine. Technical Notes,” WHO/HIV_AIDS/2001.03, WHO/RHR/01.21 (citing studies); see also J. Brooks Jackson et al., “Intrapartum and Neonatal Single-Dose Nevirapine Compared with Zidovudine for Prevention of Mother-to-Child Transmission of HIV-1 in Kampala, Uganda: 18 Month Follow-Up of the HIVNET 012 Randomized Trial,” The Lancet, vol. 362, no. 9387 (September 16, 2003), pp. 859-868.

⁴⁹ See, e.g., Department of Health, “Discussion Document: Prevention of HIV Transmission from Mother-to-Child,” (1998) (cited in Helen Schneider, “On the Fault-Line: The Politics of AIDS in Comtemporary South Africa,” African Studies, vol. 61, no. 1 (2002)); Joint Statement of the Minister of Health and TAC, April 30, 1999.

⁵⁰ Thabo Mbeki, “Address to the National Council of Provinces,” October 28, 1999.

⁵¹ Mark Heywood, “Preventing Mother-to-Child Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the Minister of Health,” South African Journal of Human Rights, vol. 19, part 2 (2003), p. 282, n. 21 (citing Debates of the National Assembly, Hansard, November 16, 1999, pp. 1835-62).

⁵² See Heywood, “Preventing Mother-to-Child Transmission,” p. 283 and n. 24; see also World Health Organization, “Safety and Tolerability of Zidovudine [AZT]: a Review of the Literature,” (2000).

⁵³ See Heywood, “Preventing Mother-to-Child Transmission,” pp. 281-85 and notes 26, 28; Mark Schoofs, “Flirting with Pseudoscience,” The Village Voice, March 14-21; Drew Forrest, “Opinion: The Record Reveals President Thabo Mbeki’s True Stance on AIDS,” Mail & Guardian,, October 26, 2001; Michael Cherry, “Letter Fuels South Africa’s AIDS Furore,” Nature, vol. 404 (April 27, 2000), p. 911.

⁵⁴ See www.virusmyth.net for information setting forth denialists’ positions; see also U.S. National Institutes of Health, “The Evidence that HIV Causes AIDS,” http://www.niaid.nih.gov/factsheets/evidhiv.htm (retrieved November 23, 2003) (refuting denialists’ contentions).

⁵⁵ See Schoofs, “Flirting with Pseudoscience;” see also Michael Cherry, “South Africa Turns to Research in the Hope of Settling AIDS Policy,” Nature, vol. 404 (May 12, 2000), p. 105.

⁵⁶ See ibid.; Helen Schneider, “On the Fault-Line: The Politics of AIDS Policy in Contemporary South Africa,” African Studies, vol. 61, no. 1 (2002). Mbeki’s consideration of dissident positions regarding the causes of AIDS generated international concern that doubting or denying the causes of AIDS would interfere with HIV prevention efforts, including implementation of MTCT programs. To address these concerns, 5000 scientists and doctors released the “Durban Declaration,” an international petition supporting the view that HIV causes AIDS, at the International AIDS Conference in Durban in July 2000. “The Durban Declaration,” Nature, vol 406 (July 6, 2000), pp. 15-16.

⁵⁷ See Heywood, “Preventing Mother-to-Child Transmission;” Schneider, “On the Fault-Line.”

⁵⁸ Nevirapine, like AZT, has been shown to reduce mother-to-child transmission even when given to the woman only a few times near the end of pregnancy. In July 1999, the results of a study finding that a single dose of nevirapine to the mother during labor and to the infant shortly after birth was, like AZT, highly effective in reducing mother-to-child HIV transmission, were released by the U.S. Department of Health and Human Services. The study showed comparable efficacy to AZT in reducing mother-to-child transmission could be achieved with a simpler and less expensive drug regimen. U.S. Department of Health and Human Services, “Researchers Identify a Simple, Affordable Drug Regimen that is Highly Effective in Preventing HIV Infection in Infants of Mothers with the Disease,” July 14, 1999; Laura A. Guay et al., “Intrapartum and neonatal single-dose nevirapine compared with zidovudine for prevention of mother-to-child transmission of HIV-1 in Kampala, Uganda: HIVNET 012 randomised trial,” The Lancet, vol. 354, no. 9181 (September 4, 1999), pp. 795-802.

⁵⁹ Heywood, “Preventing Mother-to-Child Transmission,” pp. 286-87.

⁶⁰ Ibid., p. 301.

⁶¹ Ibid, p. 303 (citing Department of Health, “Outcomes of the MinMEC Meeting of 31 January – 1 February”). In July 2002, the Constitutional Court ordered the government “without delay” to facilitate the provision of nevirapine to prevent mother-to-child HIV transmission. Minister of Heath v Treatment Access Campaign and Others, CCT 8/02 (2002).

⁶² Constitution of the Republic of South Africa, chs. 3, 6, schedule 4. National health department responsibilities include formulation of health policy and legislation and norms and standards of care; ensuring appropriate utilization of health resources and access to cost-effective and appropriate health commodities; information coordination and monitoring of national health goals; and regulating public and private health care. Provincial departments of health responsibilities include provision of health services and ensuring that delegated functions are performed. The national department of health’s plan is based on a district model that focuses on improving primary health care services. Forty-two health regions and 162 health districts have been demarcated under this plan. Government Communication and Information System, South Africa Yearbook 2002/03, pp. 339-40.

⁶³ GRIP supplies or funds HIV tests and PEP drugs in several government hospitals and private clinics in Mpumalanga, provides counseling, follow-up care and court assistance to sexual violence survivors, and provides community education and training to police, medical staff and other service providers about rape and HIV/AIDS prevention. E-mail communication from Barbara Kenyon, CEO, GRIP, to Human Rights Watch, October 7, 2003 and November 30, 2003; Barbara Kenyon et al., “The Greater Nelspruit Rape Intervention Program,” poster presentation at 14^th International AIDS Conference, Barcelona, Spain, July 2002.

⁶⁴ Sizwe samaYende and Justin Arenstein, “Sacked—for Putting Patients’ Interests First,” Focus 25, vol. 25, March 2002, http://www.hsf.org.za/focus25/focus25mollen.html (retrieved October 31, 2003).

⁶⁵ Nashira Davids, “Now Rest Your Case, Miss Manana. Mpumalanga Health MEC Wastes Taxpayers’ Money by Trying to Evict—Again—a Group that Dispenses AIDS Drugs at Provincial Hospitals,” Sunday Times, February 2, 2003; Sizwe samaYende and Justin Arenstein, “Sacked—for Putting Patients’ Interests First.”

⁶⁶ Ibid.; see also Amnesty International, “HIV/AIDS in South Africa. Support Rape Survivors’ Right to Treatment. Defend Doctors’ Right to Provide Best Available Standard of Care,” http://www.amnestyusa.org/nwsa/about_aids_southafrica.html (retrieved August 4, 2003).

⁶⁷ Von Mollendorff was formally charged with insubordination on February 22, 2002. Following the national government’s April 2002 announcement supporting the provision of antiretroviral drugs for sexual violence survivors, the Mpumalanga Health Department denied that the provision of drugs was the reason for von Mollendorff’s dismissal. Von Mollendorff has contradicted this position in a written account of his dismissal. Amnesty International, “HIV/AIDS in South Africa. Support Rape Survivors’ Right to Treatment. Defend Doctors’ Right to Provide Best Available Standard of Care.”

⁶⁸ In January 2003, Manana dropped a court case to evict GRIP, and was ordered to pay legal costs, the second time in two years that Manana (and therefore the provincial government) was ordered to foot the bill for her attempts to evict GRIP. Mariana Balt, “Thys von Mollendorff,” Lowvelder, March 13, 2003.

⁶⁹ Nashira Davids, “Now Rest Your Case, Miss Manana. Mpumalanga Health MEC Wastes Taxpayers’ Money by Trying to Evict—Again—a Group that Dispenses AIDS Drugs at Provincial Hospitals,” Sunday Times, February 2, 2003.

⁷⁰ Chris McGreal, “HIV Prevention has South African Health Minister Outraged,” Guardian Unlimited, July 23, 2001.

⁷¹ Rape Defusers Memorandum to Temba Hospital, November 3, 2000.

⁷² Ibid. Basson, an apartheid-era head of South Africa’s chemical and biological warfare program, was acquitted of these charges in April 2002. See Center for Conflict Resolution, “The South African Chemical and Biological Warfare Programme. Trial Report: Sixty-Three – Report on the Judgment in The State vs. Wouter Basson Delivered on 11 April 2002,” http://ccrweb.ccr.uct.ac.za/cbw/63.html (retrieved October 27, 2003).

⁷³ Khadija Magardie and Nawaal Deane, “State Fury Over AIDS Drug for Raped Baby,” Mail & Guardian, January 11, 2002.

⁷⁴ Ibid. According to one Kimberley doctor, doctors in the province had been prescribing antiretroviral drugs to rape survivors at their discretion for some time. Ibid.

⁷⁵Cabinet of South Africa, “Cabinet Statement on HIV/AIDS, 17 April 2002,” http://www.gov.za/speeches/cabinetaids02.htm.

⁷⁶ The government appealed these orders to the Constitutional Court, which issued a decision on July 5, 2002 ordering the government “without delay” to facilitate the provision of nevirapine to prevent mother-to-child HIV transmission. Minister of Heath v Treatment Access Campaign and Others, CCT 8/02 (2002). See also Heywood, “Preventing Mother-to-Child Transmission in South Africa,” pp. 299-312 (discussing litigation).

⁷⁷ In January 2003, Minister of Health Manto Tshabalala-Msimang invited Robert Giraldo, a prominent AIDS denialist, to address the meeting of the Southern Africa Development Community’s ministerial health committee, which she chaired. “Giraldo, unsurprisingly, informed the meeting that ‘the transmission of AIDS from person to person is a myth,’ and that the ‘homosexual transmission of the epidemic in Western countries, as well as the heterosexual transmission in Africa, is an assumption made without any scientific validation.’” Justice Edwin Cameron, “The Dead Hand of Denialism,” Mail & Guardian, April 17, 2003.

⁷⁸ Statement on Special Cabinet Meeting: Enhanced Programme Against HIV and AIDS, August 8, 2003, http://www.gov.za/speeches/8aug03.htm (retrieved August 29, 2003). This announcement followed a report by the Ministries of Health and Finance that shows that the South Africa could afford to make the drugs available and that up to 1.7 million lives could be prolonged by the treatment. A special task team presented South Africa’s health minister with a draft plan of the program on September 30. Elliott Sylvester, “AIDS Drugs Distribution Plan Presented,” Associated Press, September 30, 2003.

⁷⁹ Executive Summary: Operational Plan for Comprehensive HIV and AIDS Care and Treatment for South Africa, November 19, 2003, http://www.gov.za/speeches/8aug03.htm (retrieved November 20, 2003).

⁸⁰ Reuters, “South Africa Still Doubts Value of AIDS Drug,” New York Times, August 1, 2003. This announcement came just days after the World Health Organization had reconfirmed its recommendation that nevirapine should be included in the minimum standard package of care for HIV-positive women and their children. “South Africa Anti-AIDS Shock,” BBC Online, July 31, 2003.

⁸¹ Charlene Smith, “Rape Survivors Must Fend for Themselves,” The Sunday Independent, August 3, 2003. South Africa’s draft law on sexual offences (the Criminal Procedure (Sexual Offences) Amendment Bill), which, as of this writing, has been scheduled to be reviewed by a parliamentary committee next term (after the April 2004 elections), had included a clause requiring the state to provide and bear the cost of the care and medical treatment and counseling for survivors of sexual violence who may have sustained injuries, psychological harm or been exposed to the risk of sexually transmitted infections as the result of a sexual offence.

⁸² Comments of Advocate Johan de Lange at hearings on Sexual Offences bill before the Joint Monitoring Committee on Improvement of Quality of Life and Status of Women, November 14, 2003.

⁸³ Comments of Advocate Johan de Lange at deliberations on Sexual Offences bill before the Justice and Constitutional Development Portfolio Committee, January 29, 2004.

⁸⁴ As originally conceived, the apartheid system aimed to deprive all black Africans of South African citizenship, making them citizens of “independent” homelands. Ten homelands were created, four of which (Transkei, Bophuthatswana, Venda and Ciskei) became nominally independent. Six others (KwaZulu, Gazankulu, KaNgwane, Lebowa, QwaQwa and KwaNdebele) had a lesser degree of autonomy and were self-governing. The homelands were integrated into nine provinces formed in 1994. Under apartheid, health services were systematically underfunded in the former “homeland” areas relative to the former provinces.

⁸⁵ See Jane Doherty, et al., “Health Care Financing and Expenditure,” South African Health Review 2002 (Durban, South Africa: Health Systems Trust, 2003); Stephen Thomas et al., “Financing and Need across Districting Municipalities,” South African Health Review 2002, pp. 67-82.

⁸⁶ See ibid. In May 2002, Gauteng, an historically advantaged province, announced its intention to provide PEP to sexual violence survivors by the end of the year. At the same time, eight state-funded tuberculosis hospitals in Eastern Cape Province temporarily shut down, due to reports that the provincial province was behind in its subsidy payments. Eastern Cape, a province with an unemployment rate of 70 percent, is largely composed of rural areas that were the economically neglected Bantustan homelands under the apartheid regime. Zachary Wales, “Analysis; South Africa Acknowledges AIDS,” UPI, May 22, 2002.

⁸⁷ A 2003 investigation by the Democratic Alliance of specialized police units charged with handling sexual violence crimes reported that nationwide, a substantial percentage of such units were understaffed and under-resourced; officers’ caseloads were so high that they lacked time to conduct proper investigations; and that they lacked specialized training in child protection. Mike Waters, South Africa’s Betrayed Children. Government's Broken Promises. Report on Conditions & Activities of Child Protection Units, February 2003.

⁸⁸ See Human Rights Watch, Unequal Protection: The State Response to Violent Crime on South African Farms (New York: Human Rights Watch, 2001), pp. 197-201.

⁸⁹ District surgeons were doctors appointed by the state, usually on a contractual basis, to perform clinical medico-legal procedures, including examination of sexual violence survivors, drunken drivers, prisoners, and applicants for disability and military pensions. Lorna J. Martin, Forensic Examination Model in South Africa (Geneva: World Health Organization, 2001), p. 8; see also Human Rights Watch, “South Africa: Violence Against Women and the Medico-Legal System,” A Human Rights Watch Report, vol. 9, no. 4, August 1997.

⁹⁰ See Martin, Forensic Examination Model. An “accredited health care practitioner” is a medical officer, specialist, or specially trained nurse who has “proved to have the necessary skills and knowledge by means of formal and/or informal training and experience” and who has been appointed by the Department of Health to conduct forensic medical examinations for victims of sexual offences. Department of Health, Uniform National Health Guidelines for Dealing with Survivors of Rape and Other Sexual Offences (2000).

⁹¹ See Martin, Forensic Examination Model.

⁹² See Ibid. “Policy makers also mistakenly assumed that every medical practitioner performing clinical district health services would be taught by existing full-time expert District Surgeons to perform sophisticated clinical forensic examinations (rape, child abuse, drunken driving). These assumptions however have not materialised and unfortunately, due to the lack of manpower and training, the necessary expertise required for examining rape survivors is not available at most primary health care clinics.” Ibid.

⁹³ Medical students in South Africa are given minimal training in handling sexual offences. Health Minister Manto Tshabalala-Msimang reported that she had been told that medical students were given forty-five minutes’ training in the handling of sexual offences: “Imagine a doctor with a 45-minute exposure to the issue of sexual offences examining a victim or survivor of a brutal, intimate and potentially soul-destroying crime like rape . . . For me, the thought is unbearable.” Kerry Cullinan, “Forensic Nurses,” Health-e Online Health News Services, March 27, 2000.

⁹⁴ The national Department of Health has announced plans to train forensic nurses throughout the country to improve the treatment of sexual violence survivors and to ensure that sound medical forensic evidence is collected. Kerry Cullinan, “Forensic Nurses,” Health-e Online Health News Services, March 27, 2000. The first group of forensic nurses completed their training in Gauteng in November 2003. Gauteng Department of Health, “Fight Against Sexual Offences Gets a Boost,” November 21, 2003, http://www.gpg.gov.za/frames/pr1121a-f.html (retrieved December 7, 2003).

⁹⁵ As of this writing, one 1 South African rand is worth approximately 0.15 U.S. dollars.

⁹⁶ The government initially allocated 1.952 billion rand (U.S.$292,800,000) to combat HIV/AIDS, including funds for an antiretroviral drug program and for strengthening health services to better deal with the epidemic. Alison Hickey and Nhlanhla Ndlovu, “What Does Budget 2003/4 Allocate for HIV/AIDS?” IDASA-Budget Information Service, Budget Brief No. 127, March 25, 2003. An additional allocation of 90 million rand (U.S.$13,500,000) was later approved for the Department of Health to begin implementation of the national antiretroviral treatment program. National Treasury, “Adjusted Estimates of National Expenditure,” Medium Term Budget Policy Statement 2003, p. 72.

⁹⁷ Minister of Finance Trevor Manuel, “2004 Budget Speech,” February 18, 2004. In his Medium Term Budget Policy Statement, Manuel announced that total government expenditure to combat HIV/AIDS would exceed 3 billion rand (U.S.$450,000,000) by 2004, 4 billion rand (U.S.$600,000,000) in 2005/2006 and 4.8 billion rand (U.S.$720,000,000) in 2006/2007. Minister of Finance Trevor Manuel, “Address to the National Assembly on the Tabling of the Medium Term Budget Policy Statement and the Adjustments Appropriation Bill, 2003,” November 12, 2003.

⁹⁸ Cabinet of South Africa, Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa, November 19, 2003, p. 24.

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March 2004