House Bill 265, sponsored by Rep. Mark Mustio (R-44th Dist.), was the subject of a public hearing in the House Judiciary Committee Dec. 21. The legislation, introduced in February as the HIV-Related Testing for Sex Offenders Act, seeks to institute a process by which a district attorney can request a court order to test a suspect for HIV within 48 hours of him or her being held for court.
Currently, victims may request an HIV test for an individual with whom they have had contact — either in a criminal context or not — although no formal process is in place.
Ronda Goldfein, executive director of the AIDS Law Project of Pennsylvania, testified against the bill during the hearing, enumerating several objections she has to its provisions, mainly that it lacks an emphasis on the dispersion of accurate HIV information to victims.
“When a victim is in the emergency room after an assault, she needs to first be given information on whether there was a risk for transmission,” Goldfein said. “Rape counselors have to ask different questions about what the exposure was, if there was penetration and then, if there was, if the victim knew the assailant and knew about a possible HIV infection. That’s how you have to do the initial assessment, which is different than freaking out the victim and saying that unless you just find out the person’s status, you’re going to get HIV.”
Goldfein said the assessment helps counselors determine if the victim should be placed on a Nonoccupational Postexposure Prophylaxis, which can decrease risk of HIV transmission, and which is most effective if administered within 72 hours after exposure.
The time constraints set up in HB 265, Goldfein noted, could inhibit an accurate risk-assessment process by focusing on the assailant’s status rather than precautions the victim should take.
“This bill says that a victim may request that the DA request that the suspect be tested within 48 hours of being held in court. So that means that this guy has to be arrested, taken into custody and held for court, and in Philadelphia that can often take anywhere from seven to 10 days for the first opportunity for him to be held for court. So he would then be tested after that and the results given back to the victim, so that goes far, far beyond the 72-hour window when the victim could be started on NPEP.”
Andy Hoover, legislative director for the Pennsylvania American Civil Liberties Union, also testified against the measure at the hearing, stating his agency opposes the bill not only because it’s considered a violation of the suspects’ rights, but also because it would inhibit proper education about HIV transmission.
“HIV diagnosis is such a personal experience that no one should ever be forced to take an HIV test,” Hoover said. “And what they’re trying to get at with this doesn’t help the victim of a sexual assault. It sends this message to survivors that if the test comes back positive, they’re going to get HIV, or if it comes back negative, they’re not going to get HIV. It’s entirely possible that the defendant could be in the initial infection period and could have a false negative and the victim could then think they’re in the clear when they should actually be continuing their care. And it’s also possible that the police arrested the wrong person, which has happened many, many times.”
Goldfein agreed that the bill runs the risk of popularizing continued misconceptions about HIV transmission.
“Not all encounters are exposures, and not all exposures lead to infection,” she said. “According to the CDC, the real risk of infection from consensual sex is one in 100,000, so even if we adjust that for trauma-related sex, you’re still looking at low odds. This law would focus on the wrong place and would be misused to institutionalize an inaccurate assessment of HIV risk, which makes every guy with HIV the boogie man.”
The only witness to testify for the bill was Dauphin County Deputy District Attorney Sean McCormack.
Goldfein said she fears the bill could lay the groundwork for the future criminalization of HIV transmission.
“District attorneys are in favor of this because, although the bill specifically says that the information about HIV status can’t be used as an element of guilt in a crime, I believe that they want to collect this information with an eye toward criminalization,” she said.
HB 265 also has a financial component.
The bill was proposed as a way for the state to be in compliance with the Violence Against Women Act, which stipulates that states receiving VAWA funding must have a statute in place that allows victims to determine the HIV status of their offenders and, without such a law, are subject to a 5-percent penalty on the money filtered into the region.
Goldfein noted that victims-rights groups she’s spoken with, such as the Pennsylvania Coalition against Domestic Violence — representatives of which testified against the bill during the hearing — have expressed a willingness to “absorb that 5-percent hit because, from their perspective, when you start talking about mandatory testing, you actually put the victims at risk.”
“No amount of money is worth putting a bad policy into place, and HB 265 is a bad policy,” Hoover said. “It’s just not worth the tens of thousands that’s lost — and that’s not much in the grand scheme of things.
Sen. Patrick Leahy (D-Vt.) is spearheading a bill in Congress that would eliminate the VAWA penalty, but Goldfein said the committee was still “pretty concerned” about the money component.
A vote on the legislation in the Judiciary Committee has not yet been scheduled.
Jen Colletta can be reached at email@example.com.