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Forced HIV Testing

August 24, 2007

Via the AP, the New York Times is reporting that, “Rape suspects can be forced to undergo H.I.V. testing under a law signed yesterday by Gov. Eliot Spitzer. The measure gives rape victims the option of forcing an indicted suspect to be tested under a court order, with the results provided to the victim and the suspect.”

I understand the need to provide treatment to rape victims who may have been exposed to HIV. I also understand that not everyone who commits a rape is convicted in the courts, and so that information might not become available to the vicitm under the old law, and that the process from rape to conviction can be a long one. However, forcing individuals to submit to the test, and making a single person’s results known to another individual seems like a profound invasion of privacy. What happens in cases when the suspect turns out to not actually the rapist and a preexisting HIV infection is made known to the victim? I don’t know how often that would occur, given how many rapists are known to their victims prior to the event, but I can see this as a problem that might arise.

According to this press release from the Governor’s office,

The legislation will apply when a defendant has been indicted for the crime, and the victim makes a request to the court within six months of that crime. The court is required to order HIV testing of the indicted defendant whenever it finds that such testing would provide medical or psychological benefit to the victim.

It seems, then, that the law would not apply to every possibly suspect, but only once a single suspect is known and suspected. Still, it gives me the willies, and I suspect that my libertarian friends are having heart attacks right about now.

The new law does have an aspect that I think will be helpful to rape victims:

The bill requires hospitals to inform victims that they may be eligible to receive reimbursement for costly HIV treatments from the Crime Victims Board, a state agency that helps victims cover various expenses. In addition, it will require the State Department of Health to develop guidelines to ensure that accurate and current medical information regarding testing, counseling and medical treatment is available, and that testing is done for a medical benefit.

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3 Comments leave one →
  1. Hildy permalink
    August 25, 2007 8:36 pm

    what’s wrong with treating it like a needlestick (or any other case of PPEP – post potential exposure prophylaxis)? You request permission to test the suspect, the victim is tested (to ensure that it actually is conversion as opposed to preexisting illness), and treat the victim with PEP meds. If the suspect refuses *and* the victim seroconverts, you can treat that as a presumption that the suspect was the vector of transmission.

    another aspect of the testing – could it be used as a backup offense (where I live, it is an offense to not disclose HIV status to sexual partners) in case the rape doesn’t stick? in many rape cases, the sex is admitted to, it’s the consent which is the issue, so if the suspect admits to having sex, and is HIV positive, and the victim seroconverts, that may or may not be good enough to make that sort of charge stick.

  2. August 28, 2007 8:47 am

    Hildy’s comment is spot on. Not only that but in NY offering PPEP to rape victims is the standard of care.

    And Rachel I agree with you–there’s a difference between testing a convicted rapist vs. an accused one. After reading the excerpt, it sounds to me like this is more of a “feel good/let’s flex our control muscle” measure than anything else.

    Where’s the advantage for the patient of waiting for up to 6 months to get a test result? Also, the court, not the patient and her physician, gets to decide if testing would provide medical or psychological benefit to the victim and who the “lucky” ones should be.

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