NCJ Number
131614
Journal
Vanderbilt Law Review Volume: 43 Issue: 5 Dated: (October 1990) Pages: 1607-1636
Date Published
1990
Length
30 pages
Annotation
This legal note examines the issues surrounding mandatory AIDS screening of sex offenders and the contrasting approaches to the problem in New York and California.
Abstract
By passing a strict confidentiality law, New York has placed itself in clear opposition to States that have adopted mandatory testing programs for sex offenders. New York's law, with certain exceptions, requires that no one be tested for AIDS without providing informed consent. California has adopted Proposition 96, an administrative scheme that seeks to regulate mandatory HIV testing for accused sex offenders. Commentators have praised the California statute as an effective approach to the problem, while critics remain skeptical that the statute will adequately protect defendant rights. Most governmental responses to the AIDS crisis, including mandatory HIV testing of sex offenders, set the government's power and duty to protect public health against the individual's constitutionally guaranteed liberty interests. The government has a definite interest in responding to the concerns of rape victims in light of the AIDS crisis. This interest is substantial but may not be well-served by a program of mandatory, nonconsensual HIV testing of alleged sex offenders. The constitutionality of involuntary HIV testing rests on balancing both defendant and victim rights. Given the status of HIV screening, testing and retesting the victim rather than the defendant may serve the government's interest most effectively. Additionally, the government should devote needed resources to AIDS education and counseling. When the reliability of AIDS testing improves, an administrative scheme enabling nonconsensual testing of sex offenders will be more likely to meet constitutional standards. 247 footnotes