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Rights of Criminals / Victims of Crime

Alleged rapists and convicted rapists
  • are not granted bail if the rapist allegedly committed the crime while "knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus", unless they can prove "exceptional circumstances". The victim of the rape can apply for this provision based on the Criminal Procedure Second Amendment Act (Act 85 of 1997)
  • who are first time offenders and HIV-positive are given higher minimum sentences (life) than those who are not HIV infected (10 years), unless there are "exceptional circumstances", according to the Criminal Law Amendment Act (Act 105 of 1997)
  • In both instances, proof is not needed that HIV transmission occurred
  • cannot be tested for HIV without their consent (case law)
  • have a right to adequate heath care including antiretroviral therapy
Also see: Adapted from: Information from: AIDS Law Project. AIDS and the Law in South Africa: an Overview

In South Africa, as in other parts of the world, a great many HIV-positive people suffer from the stigma of having HIV.


Stigma and discrimination are sometimes confused.

  • A stigma is a quality or attribute which "significantly discredits" an individual in the eyes of others.
  • Discrimination is associated with the behaviour of people who treat people differently because they belong to a group. Often people who discriminate against others, do so on the basis of stigmas attached to those groups.

Adapted from: Siyam'kela: HIV Stigma Indicators

There are two types of stigma:

1. Enacted stigma.

The actual experience of discrimination based on stigma. Examples include harassment, exclusion, ridicule and violence. For example, a person may be dismissed from their job because they have HIV/AIDS or ostracised by their family.

2. Internal stigma.

The shame associated with the stigma, and the fear of being associated with the stigma and discriminated against. A person who believes they have HIV might not want to be tested or subsequently treated because of fear of other people's response to this. For e.g., an HIV-positive mother who is nursing her child might still breastfeed, despite the danger that she may transmit the virus to the child, to protect herself from being associated with HIV.

Key Research

A joint project by POLICY Project SA, SA National Department of Health, Centre for the Study of Aids (CSA) and USAID developed a set of stigma indicators based on focus group discussions consultation with experts in the field. The indicators show the different types of enacted (i.e. external) and internal stigma based on real life experiences in South Africa. (PLHWA = Person or People Living With HIV).

External stigma Real life experience
Avoidance People will:
  • will not share objects with People Living with HIV (PLWHA)
  • spend less time with PLWHA after disclosure
  • exclude PLWHA from social events
  • physically distance themselves from PLWHA (i.e. do not want to touch PLWHA)
"You sit down [in church] and they all get up and go sit somewhere else." — Male person living with HIV/AIDS
"Many a time I have had people shout at me, saying, "Don't come near me, I am scared of you." — Male person living with HIV
  • Family and friends abandon PLWHA
  • Community pressurises PLWHA to leave organisation or residence
"You experience it [rejection], especially at home. When you tell your
family that you are [HIV] positive they start to chase you away. Like they
did to me. They said that I must leave, and must stay away." — Male person living with HIV/AIDS
Moral judgement People will judge a PLWHA based on his/her behaviour that lead to their HIV status. "If you contracted HIV it must have been through sex. It must have
been unlawful sex. Therefore you are a sinner and it's a punishment from
God." — Faith leader
Stigma by association People associated with PLWHA (e.g. family, friends, HIV field workers) are also stigmatised. "Sometimes I wonder if people don't think we are all [HIV] positive
because we work in this field." — HIV/AIDS co-ordinator
Unwillingness to invest in PLHAs People offer less training, promotion and responsibility to PLWHAs. "Because obviously the minute you disclose you will lose everything. They
won't bother training you anymore." - HIV co-ordinator
Discrimination PLWHAs are denied services — financial, medical or other — because of their HIV positive status. "When I go to the police to ask for help they tell me they are tired of HIV. And the magistrate also said he doesn't accept cases of HIV." - Female person living with HIV/AIDS
Abuse People verbally or physically abuse PLWHAs because of their status. "When you go back to your man and disclose, tell him you are HIV-positive, he runs away or he beats you." - Female person living with HIV
Internal stigma: Real life experience
Self-exclusion from services and opportunities PLWHAs do not access support services or apply for jobs because of their fear of being exposed as HIV-positive. "Even if there is an offer of a job, I would not apply. It is hard because you
think that they will draw blood or look at your urine and see that
something is wrong." — Male person living with HIV/AIDS
Perception of self PLWHAs have low self-esteem as a result of
their HIV-positive status.
"First I apologised to the church and asked them to take me as I am. And
I asked them to give me a second chance to prove myself." — Female person living with HIV
Social withdrawal PLWHAs have fewer interactions with people who are HIV-negative and/or choose not to have intimate relationships. "Although I've accepted the virus myself, the thing is I don't want anyone
next to me." — Male person living with HIV
PLWHAs believe they have to work harder or make more of an effort to prove themselves.
"For me, I would say that earlier I thought I was doing what I thought was
godly. I was doing my best to serve God. But when I found out that I was
[HIV] positive I said no, I think it was not enough." — Female person living with HIV
Fear of disclosure PLWHAs do not disclose their status due to fear of stigmatisation. "Some PLHAs just cannot find it in themselves to disclose because of the
stigma. They just have so much to lose — the respect of their community
and family. Their friends will reject them. So they live in silence. It is an
enormous burden to be scared of stigma." — Female person living with HIV
POLICY Project et al. Siyam'kela: HIV/AIDS Stigma Indicators — A tool for measuring the progress of HIV stigma mitigation.

6.1 Factors Contributing to HIV Stigma and Discrimination

Mob kills woman for telling the truth

Dec 27, 1998 – The brutal killing of an HIV worker who was beaten to death after going public about being HIV-positive has unleashed a wave of outrage. Health worker Gugu Dlamini, 36, of KwaMancinza, near Durban, died after being assaulted by a mob who accused her of degrading her neighbourhood by disclosing that she had the disease.

Health workers this week described her killing as "sheer stupidity" and "a barbaric act". ... Zandile Sibiya, a nurse, said Dlamini had been threatened repeatedly by other KwaMancinza residents who felt her openness about her affliction had given the area a bad reputation. ... Read more

1. HIV initially associated with already stigmatised groups

When AIDS was first identified, it was initially suffered disproportionately by homosexuals, intravenous drug users and haemophiliacs — groups that already suffered existing intolerance, discrimination and sometimes moral condemnation. This association intensified the stigma of HIV and AIDS.

2. Moral attitudes and belief systems

Because HIV is mainly transmitted through sexual intercourse, and sex and morality are deeply intertwined in many belief systems, the stigma of HIV as a "punishment from God" for evil lifestyles has risen.

3. Ignorance

People who have a lack of knowledge of the nature of HIV and its transmission tend to discriminate against HIV-positive people as they are scared of "contamination", or just the pain of watching others fall sick and die. There is also a perception that PLWHAs have a debilitating disability that prevents them from being functioning members of society.

4. Self Interest

People who discriminate against HIV-positive people see themselves as healthy and virtuous, free from the virus, in contrast to the "sickly and incapable" PLWHAs.

5. Role of the Media

General images of HIV and AIDS focus on "innocent victims" — AIDS orphans or small babies who contract HIV — and either exclude or minimalise the suffering of the people who gained the virus through sex with multiple partners or drug abuse, for instance. This, combined with terms such as "AIDS sufferers" and "AIDS victims" reinforces images of helplessness and victimhood. (Also see: Ethics Factsheet)

Adapted from: AIDS Law Project.Nature and Extent of Discrimination against PLWAs in South Africa.

6.2 Stigma and the Media

The media has a large role to play in the reinforcement or removal of stereotypes that reinforce the HIV stigma.

Key Research

The SA media has generally learned to use non-stigmatising language. In a Policy Project analysis of media between January and March 2003, "two in three articles in the media scan were categorised as using neutral or stigma-reducing language."

However, the study also found:

  • HIV and AIDS was most often depicted as affecting people who were poor (31% of articles), black (27%) or living in developing countries (18%)
  • Heterosexuality and homosexuality were represented almost equally in relation to HIV, even though nearly all sexual transmission of HIV in SA is heterosexual
  • Male PLHAs who spoke to the media generally spoke as activists (36% of articles) or celebrities (18%), while female PLHAs were mostly mothers (44%) or orphans (25%)
  • In the newspaper articles, no white PLHA was ever used as a source of information

By using sensational wording, stigmatising language and incorrect terminology, the media can reinforce the HIV stigma.

Policy Project et al. Siyam'kela. Examining HIV stigma in selected South African media. January — March 2003.

Wits Journalism Anova Health

The project is jointly managed by the Anova Health Institute and the Journalism and Media Studies Programme at the University of the Witwatersrand. The project is funded by by the Health Communication Partnership based at the Johns Hopkins Bloomberg School of Public Health Centre for Communication Programmes and the President’s Emergency Plan for AIDS relief through the United States Agency for International Development under terms of Award No. JH/HESA-02-05 and through the Anova Health Institute through PEPFAR via USAID under Award No. AID-674-A-12-00015.