Mandatory HIV Testing For Rape Suspects?

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The sweltering summer heat has all of us sweating, but the temperature for New York legislatures spiked a new high after a heated debate over the latest hot button issue. Senators and assemblymen in the Big Apple recently passed a bill that would force rape or sodomy suspects to undergo HIV testing, the results of which would be made available (upon request) to the victim. The operative word here is “suspect.” Presently, the state only requires HIV testing after the “conviction” of rape. If N.Y. Governor Eliot Spitzer signs off on the bill, the law would only require an indictment before mandatory testing.

It seems like common sense that suspects arrested for such heinous crimes should be automatically tested —after all, it’s just a pin prick in exchange for the immediate release of life or death information. But not everyone sees it that way. The measure stands as a source of contentious debate reflecting the tenuous balance between the health of a rape victim and civil rights of a suspect who has yet to be tried and for rape or sexual assault.

Every two minutes, somewhere in the United States, a woman is raped — an incomprehensible 72 out of every 100,000 American females. And, although we don’t have exact numbers, we do know that between 4 to 6 percent of rape victims contract sexually transmitted diseases; almost 1 in 500,000 contract HIV/AIDS. The bill would constitutionalize HIV testing before a suspect is actually convicted; essentially along the same line as undergoing blood tests for drunken driving suspects.

Supporters of the bill say a victim should have access to all possible information before deciding whether to take a potent cocktail of meds to fight HIV. In theory, this would let victims know immediately if they require treatment instead of waiting post conviction. “This is a decision that should be made by a woman,” says Nettie Mayersohn, a Queens Democrat and chief sponsor of the bill.

But this is one topic that also draws heavy criticism … and much of the dissent comes from gay rights advocates. “On its face, it seems like the bill makes sense. What it really shows is a misunderstanding of what will help victims about the transmission of HIV,” expressed Senator Thomas Duane, a Manhattan Democrat who’s both gay and HIV-positive. Duane stressed that a rape victim should immediately accept the offer to begin anti-HIV treatment available in emergency rooms and not be tempted to wait for a court order. The danger: a test result might show the suspect to be HIV-negative, prompting the victim to ignore preventative treatment — only to discover that the suspect was the wrong person or the results proved incorrect.

Controversial topics always ignite a vicious war of words, but this particularly sensitive topic made the attacks personal. Opponents have accused Spitzer, who backs the bill, of “very cheap divisive tactics that could cloud the very serious issue of getting people into treatment and care.” Spitzer’s camp responded in kind saying that attacker’s HIV status “is critical to both the physical and emotional well-being of the victim.”

A woman’s body is her own and only she can decide what’s best for her. This bill is a question of safety, and like everything in life, there are risks that are sometimes necessary to take. Providing immediate access to critical information, albeit with the risk of a false negative test result, still allows the victim to make her own choice based on more complete information. Additionally, the bill provides a provision for counseling, ensuring that victims understand the uncertainties of testing. Ms. Mayersohn said victims or their representatives should be presumed to be capable of making well-informed decisions, and “understand about the window period, that there is a small chance that the guy might be HIV-positive but in the early stages ... She and her doctor are going to decide whether she is going to continue the medication or stop the medication,” she added.

Other challengers worried that requiring HIV tests of those indicted, but not convicted sets a troublesome precedent. We “run a slippery slope if we start testing people by virtue of indictment,” explains Assemblyman Keith Wright, Manhattan Democrat. Yes, “everyone wants to protect the victims of sexual assault, there’s not question about that … but there are no protections for privacy with those tests.” Assemblyman Wright correctly points out that the District Attorney would retain that information and there’s no telling where the trail may end. It’s a fine line between arming the victim with sensitive information and violating the suspect’s constitutional rights.

We live in the United States of America. We have the right to a fair and speedy trial, and we have the right to counsel. But we also have the right to protect our bodies and make intelligent decisions for ourselves if we’ve been victimized in the most horrible way.


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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. Lis is also the author of The 51% Minority — How Women Still Are Not Equal and What You Can Do About It. (Watch the Video) To read the rest of Lis's bio, click here.