Legislative Memo: Mandatory Pre-Conviction HIV Testing

AN ACT to amend the criminal procedure law, in relation to the testing of certain criminal defendants for human immunodeficiency virus.

Position: OPPOSED

It is perplexing that in light of the grave public health challenges facing NY State, the legislature has been unduly preoccupied with this bill (A.4861-B/S.3740-A), which not only lacks a demonstrable public health benefit but may, if enacted, pose a health risk to sex crime victims, who may be encouraged to depart from NYS Department of Health protocols.

This legislation would compel a court to order that the accused perpetrator of certain sex offenses submit to “HIV related testing” upon request of the victim of such a crime. The intent of this proposed law, as stated in the sponsor’s supporting memorandum, is to provide the victim of a sex crime with the “necessary medical information” required to “make appropriate medical decisions.”

It is a well-established medical fact, however, that the HIV testing of an individual within the proposed six-month time frame will provide, at best, ambiguous medical information. The results of such a test do not provide a reliable basis for terminating post-exposure prophylaxis. Because HIV assays test not for the virus itself, but for antibodies produced over time, testing the alleged offender only indicates what his status was six months prior to the test. On the other hand, a positive result will heighten the victim’s anxiety but will not necessarily alter the recommended medical protocol during this period, when infection is uncertain.

If, nevertheless, the proponents are convinced that the HIV testing of a crime suspect would provide a meaningful health benefit to a crime victim, then the bill should be amended so as to direct a court to order such a test upon the demonstration of medical benefit. Absent such a provision, the proposed legislation fails to meet minimum constitutional standards.

It is the position of the NYCLU that as proposed, A.4861-B/S.3470-A fails to provide a public health benefit that would justify the involuntary HIV testing of those accused of a sex offense. For the foregoing reasons, the NYCLU strongly opposes this legislation.