HIV-Rape Trial Takes a Break

THE High Court's first trial under the Combating of Rape Act in which a suspect faces the allegation that he knew he was carrying the AIDS virus when he raped a woman is set to continue early next month.

The trial before Judge Elton Hoff was postponed to April 8 on Wednesday.

Earlier that day a nurse disputed a claim by one of the two suspects that he and his alleged victim had gone together for HIV tests before the alleged rape.

The 38-year-old suspect and his 21-year-old brother face a charge of rape under the Combating of Rape Act of 2000, and a count of kidnapping.

It is claimed that the older brother tested HIV positive shortly before the alleged rape of the woman at a farm in the Omaruru district on December 5 2001.

She told the court last week that the two brothers arrived at the farm where she and her husband were staying on that day, that the older brother told her that a nurse at a clinic in a village in the vicinity wanted to see her in connection with an illness she had passed on to him, and that he then forced her to accompany them.

They stayed over at his home that evening, where he raped her three times during the night, she testified.

However, according to the suspects' defence lawyer, Tousy Namiseb, the older brother claims that while they slept at the same place that evening, they did not have sexual intercourse.

He also claims that he went to fetch the woman because they had to make a follow-up visit to a clinic where they had gone for HIV tests.

The woman denied this version of events.

On Wednesday, registered nurse Martha Doeses also denied that the suspect and his alleged victim had been together at the clinic to be tested for the AIDS virus.

She told Judge Hoff that she drew blood from the man on November 19 2001 for an HIV test.

He did not return to hear of the test results before December 5 that year, she stated, in a part of her testimony that could prove to be vitally important for the suspect's defence.

In terms of the Combating of Rape Act, a person infected with a serious sexually transmitted disease faces a higher mandatory sentence if convicted of rape if it is shown that he knew of his infection when he committed the crime.

According to Doeses, she relayed the test result, which showed that the suspect had tested positive, to him only on January 18 2002, when she went to see him in Police custody to inform him of the test result.

According to the AIDS testing guidelines, an initial positive test result must be followed by a second test to confirm the patient's identity and the test result, the court heard.

In this suspect's case this was never done, though.

The older brother remains in custody until the trial resumes.

His younger brother, who has been charged based on allegations that he assisted his brother, is free on bail.

Public Prosecutor Sharon Blaauw is representing the State.