NCSL LegisBrief
Briefing Papers On the Important Issues of the Day
Testing Violent Sex Offenders for HIV
By Ann Dietrich
February 2001
Volume 9, Number 7
As many as one in three women and one in seven men are sexually assaulted during their lifetimes, according to the National Victim Center. Few studies, however, estimate the rates or risks of HIV infection among sexual assault victims. One estimate involving the general public shows that transmission occurs about two times per 1,000 sexual contacts. Those who work with victims estimate a higher infection rate because the violent nature of sexual assaults increases the chances of transmission.
Required Testing. In response to these offenses, legislatures have passed laws to require testing of alleged rapists for a variety of sexually transmitted diseases. When HIV was identified in the early 1980s, the need arose to modify existing laws to include HIV testing. HIV testing laws not only define when tests are performed during the legal process, but also determine further requirements discussed below.
Pros and Cons. Legislation requiring testing raises significant constitutional and practical issues. Those opposed to testing assert that such laws allow for unreasonable searches under the Fourth Amendment of the Constitution. In addition, such statutes, they argue, violate the 14th Amendment because they do not provide sufficient procedural safeguards to protect the privacy rights of those accused, but not convicted, of sexual assault. Opponents also believe that testing provides no real benefit because testing is sometimes inaccurate or untimely. Those in favor of testing respond that the public has a compelling interest that outweighs the privacy rights of alleged perpetrators. Technology also may soon create more conclusive tests, and victims may better know if they will contract HIV.
State Actions
Require vs. Allow. Authorities test either upon arrest, when charged (which includes the time when an offender first appears in court through the time the case is decided) or post-conviction (after the case is decided against a defendant). Legislation can require or permit testing. Twenty-one states permit testing, 30 mandate it. Seven state statutes both mandate and permit HIV testing. In all of these states, testing is permitted when an individual is charged with a crime, but mandated after the court convicts him.
Of the states that mandate HIV testing, six require testing when charged. Laws in 28 states require testing after conviction. Among the states that permit testing, all 21 allow testing when charged. Six state laws also permit testing after conviction. Legislation requires testing for HIV upon arrest in Nevada and Tennessee.
Most often, testing is ordered through the courts. And judges are often allowed to choose whether testing is appropriate. Such provisions of testing statutes allow courts to consider facts that indicate whether the exchange of bodily fluids from one person to another is likely to result in HIV transmission. Some statutes require that evidence must satisfy a legal standard-probable cause-before the court can order testing of a defendant.
All states keep test results confidential, with exceptions. Defendants and victims almost always receive results. The law in Delaware, as in other states, allows victims to share the perpetrators' test results with others such as the victim's sexual partners or family. Certain states allow other agencies, such as departments of corrections, to receive test results. Often, infected inmates are isolated from other inmates for their own and others' protection.
"Illustration for "States That Require HIV Testing of Violent Sex Offenders" is not available online. Please contact the author for a copy or view the Adobe Acrobat version. Adobe Version
Federal Action
Proposed federal legislation, The Victims of Rape Protection Act, would mandate testing an assailant after his initial court appearance. The bill passed the House in early October and is currently in the Senate (S 3206). In addition, the 1996 Ryan White CARE Act requires that all 50 states are to mandate or authorize HIV testing for charged or convicted sex offenders. To date, all states except six have complied. Finally, the Martin Amendment to the Comprehensive Crime Control Act directs states to test convicted sex offenders for HIV at the victim's request and counsel the victim. Victims have the right to obtain one test at the state's expense, and states must reveal results to both victims and defendants. States that failed to comply by 1994 lost 10 percent of funding allocated under Bureau of Justice assistance grant programs.
Selected References
"Sexual Assault and HIV Infection," AIDS Reference Guide, Paragraph 1220, June 1997.
State of New Jersey in the Interest of J.G., N.S., and J.T., 151 N.J. 565 (1997).
Wasserman, Stephanie. HIV/AIDS Facts to Consider, Denver: NCSL, 1999.
Contacts for More Information
Lisa Speissegger and Ann Dietrich
NCSL-Denver
(303) 364-7700, ext. 199 and 192
lisa.speissegger@ncsl.org
ann.dietrich@ncsl.org
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