State legislature, governor re-victimize victims: Part Two
House Bill 1794, now Act 201 of 2012, passed the legislature two weeks ago and was signed by the governor on Thursday. This new law allows a district attorney to seek and a judge to order a forced HIV test of a person arrested for sexual assault. (The ACLU of PA supports universal HIV testing but opposes forced testing of anyone.) The DA must seek the order in consultation with the victim.
That sounds great on its face. Right, only to people who know nothing about HIV. The Centers for Disease Control and Prevention has a recommended protocol for people who may have been exposed to HIV. It involves a regimen of drugs known as post-exposure prophylaxis, or PEP. PEP reduces the chances that a person will contract HIV after possible exposure.
This drug regimen must be started within 72 hours of the exposure. Ideally, it is started within 2-36 hours. What are the chances that a suspect is arrested, the DA consults with the victim, the DA seeks the order, a judge issues the order, an HIV test is administered on the arrestee, and the results are returned within 72 hours? Slim to none.
This new law is also based on the false idea that everyone who is arrested must be guilty. Google "innocence project" and you'll know that's not true. According to the Innocence Project, "there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused."
Imagine this nightmare scenario. The DA has arrested the wrong person, and he's HIV positive. What kind of additional trauma will that place on the victim? Or imagine that they've arrested the wrong person and he's HIV negative, giving the victim a false sense of security.
People with HIV can also test negative. In the first six weeks to six months that a person has contracted the disease, he or she tests negative. This is also the time in which the person is most likely to transmit the disease because his viral load is high.
There is another factor here, a fact that is little discussed. Transmission of HIV is relatively rare. According to one study, a person with HIV will transmit the disease to a partner once in every 900 unprotected sexual encounters. According to the CDC, transmission by consensual vaginal intercourse is 0.1%-0.2% and by consensual anal intercourse is 0.5%-3%. (Transmission rates by sexual assault are not known.)
Of course, safe sex is extremely important to slow the spread of HIV. But this new law is based on the false idea that exposure equals transmission. It does not.
According to a 2009 survey by the Kaiser Family Foundation, 51 percent of people would be uncomfortable having their food prepared by someone who is HIV positive. This law is based on the same wrong-headed attitude toward HIV. It furthers the hysteria around HIV, and that leads to those living with the disease to be further ostracized and isolated.
Sexual assault victims need the best care possible, and that care comes from medical professionals, not DAs or judges.
Learn more about the ACLU's work on HIV-AIDS by visiting the webpage of our AIDS Project.