NCJ Number
128751
Journal
Cornell Law Review Volume: 76 Issue: 1 Dated: (November 1990) Pages: 238-267
Date Published
1990
Length
30 pages
Annotation
This document examines whether a mandatory test for AIDS in rapists is reasonable in light of the fourth amendment which guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
Abstract
For a court to judge the mandatory HIV testing of accused sex offenders unconstitutional under this amendment, the HIV test must be considered a "search" for the purposes of the fourth amendment, and that search must be unreasonable. There are three perspectives on the fourth amendment balancing test for reasonableness: law enforcement searches, administrative searches, and "special needs" searches. In California, there is no violation of the fourth amendment in most cases. The statute is properly analyzed under the "special needs" approach. The New York statute does not create a fourth amendment problem because it requires that a person being tested give his written, informed consent before being tested and does not provide an exception for mandatory HIV testing of sex offenders. A statute is proposed that instructs courts to balance the victim's need to know her attacker's HIV status against the defendant's privacy right before requiring the defendant to be tested or disclosing the defendant's HIV status to the victim. 214 footnotes