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Legislative Memo: Transmissible Disease Testing

This bill would allow court-mandated, involuntary testing of individuals for sexually transmitted diseases charged with or convicted of sex offenses, violent felonies, or aggravated assault. These results would then be disclosed to the person alleging exposure to the bodily fluids of the defendant during the commission of the crime, as well as involved attorneys.

The NYCLU not only opposes this bill on constitutional grounds, but further, it believes that this legislation has the potential to mislead and endanger the very victims it seeks to protect.

Today, victims of sex crimes face the additional trauma of the fear of sexually transmitted diseases, particularly HIV infection. However, because of the long latency period between exposure to the virus and development of HIV antibodies, a victim of sexual assault must consider herself at risk for at least six months after the assault, waiting for negative results to confirm the absence of the virus in her body.

Testing of the alleged offender – whether voluntary or court ordered – cannot relieve the victim of her burden of fear; that can only happen when her own tests (at least six months from the time of possible exposure) rule out infection. Because HIV assays test not for the virus itself, but for antibodies produced over time, testing the alleged offender only reveals what his HIV status likely was six months prior to the test.

In fact, he could have been infected at the time of the assault yet produce a false negative because, although the virus is present and transmissible, the antibodies sought by the test may not be detectable for up to six months after exposure. A negative result may falsely reassure a victim, who may then adhere less rigorously to the protocol for persons with possible exposure to the HIV virus; that is, to practice safe sex and to continue medical monitoring for several months.

On the other hand, a positive result will heighten the victim’s panic, but does not necessarily alter medical intervention which can be offered during this period of uncertainty, nor verify her own infection.

Accused and convicted defendants retain Fourth Amendment privacy protection and can only be forced to undergo an unwanted medical procedure when there is an extremely compelling government interest. This bill provides an illusory solution to the compelling government interest in preventing the spread of AIDS.

Invading the bodily integrity of an accused or convicted defendant will not provide the victim with reassurance. Only time and the testing of her own blood will determine whether infection has occurred.

This bill also discards the presumption of innocence that our criminal justice system is based upon. Allowing court-mandated testing of accused defendants who have not been convicted of a crime, based upon the statement of the alleged victim, violates due process guarantees. The NYCLU believes this bill not only fails to further compelling government interests, but may actually distract lawmakers from effectively addressing the government’s interest in protecting the victims of sex offenses.

Sex crime victims need information, counseling and medical services. These victims are not served by depriving their alleged assailants of their civil liberties. The NYCLU opposes passage of this bill.

As bold as the spirit of New York, we are the NYCLU.
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Civil Liberties Union