HIV Tests for Accused Rapists

Massachusetts Governor Mitt Romney has laudably shifted his stance and backed the rights of rape victims to have EC offered to them in state hospitals. But he’s gone a step further, and proposed legislation which would require rape and sexual assault suspects to undergo an HIV test at the request of the victim.

I have very mixed feelings about this one, and since the law on this issue isn’t cleanly settled, I find myself coming down on the side of the civil liberties advocates. Requiring a suspect — not a convicted criminal — to be tested for HIV, for purposes which are not at all related to evidence-gathering or attempts to make a case against them, seems to me to be an egregious Fourth Amendment violation (but I don’t start Con Law until tomorrow, so, really, I don’t actually know much about this). While we permit DNA tests, breathalizer tests, and other bodily searches, these tests are highly regulated and are used exclusively for the purpose of establishing the suspect’s guilt; in that sense, they can be fairly compared to searching a person’s property. But forcing a suspect to undergo an invasive medical procedure which is unrelated to the question of their guilt or innocence, and is instead being used to offer peace of mind to the victim, is in a different category.

Amanda writes about this one too, and seems similarly conflicted, although she offers good arguments for this policy. And there are great arguments. It does seem especially cruel to rape survivors to oppose a policy that could potentially offer them much-needed peace of mind, and give them information that could assist them in making the best medical decisions possible. But as the article points out, it would be difficult to complete an investigation and go through the necessary legal proceedings in the 72-hour window period. And it also seems that mandatory testing could give rape survivors a false sense of security about their status. If their accused rapist turned up negative for HIV, they may assume that they’re safe from getting it and decide not to take the preventative drugs. But the accused could still be HIV-positive and just not testing for it yet. Or the person could be wrongly accused. The preventative drug treatment is no walk in the park, and it would be nice if there were a sure-fire way to figure out if survivors could safely forgo it. But this doesn’t seem to be the answer.

In fighting for victims’ rights, those of us who also have a strong interest in civil liberties have to be able to strike a delicate balance. Requiring hospitals to offer EC and HIV treatment to rape survivors is well within the realm of what’s reasonable. I’m not sure that mandatory HIV tests for accused rapists are. All that’s required here, from what I can tell, is an arrest — not a conviction. This sets us down a scary road when it comes to medical privacy issues, when invasive medical procedures are being done on accused criminals for reasons completely unrelated to establishing their guilt. Now, if they’re on trial for knowingly transmitting HIV to someone else (which is a crime in some states), then it’s a different story — but that’s not what this legislation is about. And it just doesn’t seem beneficial enough to survivors to outweigh all the civil liberties and privacy concerns.