Victims of sexual assault could request their alleged attackers be tested for HIV under a new bill that has cleared the Utah House. This request would happen before a conviction, based only on probable-cause evidence presented to a judge.

House Bill 324 passed with a 50-12 vote on Friday with no debate. The sponsor of the bill, Richard Greenwood, R-Roy, said the purpose of the bill is to increase the rate at which sexual offenses are reported. The bill is also designed to help victims of sexual assault to avoid unnecessarily taking HIV-preventive drugs after they might have been exposed to the virus.

The bill would allow the victim of an alleged sexual abuse to request that the accused offender be tested for HIV. If probable cause can be shown, a judge can require the alleged offender to be tested for HIV and the result would be shared with the victim.

“I think the benefit of this piece of legislation … is it is going to take a lot of women who have been sexually assaulted and who have been raped to come forward and report the rape,” Greenwood said.

However, the bill has large and basic constitutional issues, said Brian Barnard, a Utah civil rights lawyer.

“Under our current system of law you cannot impose that kind of test before someone is convicted,” Barnard said. “It’s an invasion of privacy. You’re taking the information of what’s in someone’s blood without their consent and before they’re convicted of any crime.”

When people are arrested on suspicion of committing a crime, the police can perform a variety of identification tasks such as fingerprinting and mug shots. However, that is done to identify someone later if that person is to somehow escape custody, Barnard said. This bill would circumvent the judicial process and punish someone and invade their privacy before anyone is convicted of a crime, Barnard said.

“If this bill is challenged in court, it will not hold up to scrutiny,” Barnard said.

Rep. Greenwood defended his bill and emphasized that the alleged offenders would only be required to be tested if probable cause was shown to a judge.

“Each bill crafted goes through tight legal scrutiny and our legal council did not find any significant constitutional issues with this bill,” he said.

Marina Lowe, on the Legislative and Policy Council with the ACLU of Utah, said her organization is strongly opposed to the bill.

“This is a highly invasive search of an individual,” she said. “It’s seeking highly sensitive information, and not only providing it to the law enforcement, but also providing it to a third party; or essentially, the public.”

Finding out the HIV status of an attacker is designed to help a victim make an informed decision about whether or not to seek immediate treatment for HIV, Greenwood said. However, even the sponsor of the bill acknowledged that there is a potential problem with the effectiveness of testing attackers.

After victims report a rape, they are treated for some of the most common sexually transmitted diseases, including Chlamydia and gonorrhea, said Susan Chasson, the sexual assault nurse examiner coordinator for the Utah Coalition against Sexual Assault.

The routine treatments also include a month-long anti-viral routine that sometimes may have many adverse side effects including nausea, vomiting and fatigue, Chasson said. For the routine to be effective, it must begin within three days of the exposure to the virus, she said.

“Most people feel pretty miserable for the month they’re taking these medications,” Chasson said.

However, even if an offender tests negative for HIV, a six-month window exists before anti-body HIV tests are considered 99.9 percent accurate, said Nicholas Rupp, the public information specialist for the Salt Lake Valley Health Department. This means that even if the offender tests negative for HIV, the possibility still exists that he or she is infected and could spread the virus, even if the results did not appear on a test, Rupp said.

Even if the attacker tests negative for HIV, it is still possible that the victim was exposed to the virus and should continue to take the medications and be tested after six months, Rupp said.

“We would advise everyone to always err on the side of caution,” Rupp said.

Lowe also questions whether this bill would accomplish what it is trying to do. She said the bill could have adverse unintended consequences.

“Just because a victim of sexual assault thinks a defendant is guilty, doesn’t actually mean that person is,” Lowe said. “If someone tests negative, and is later found to be innocent. The victim could have chosen to not take the medication while the real perpetrator is positive. This scenario could result in the unnecessary infection of a victim.”

However, the objections are not unanimous from all representatives of the Salt Lake Valley Health Department. The HIV and STD Program Manager, Lynn Beltran, said patients should be able to make an informed decision about whether or not to take the HIV-prevention medications.

“The immediacy of the information is the issue here, not the HIV window period,” Beltran said. “It is not a reason to stop moving forward and testing an offender.  While there are some outliers, the tests are usually very accurate.”

The anti-body tests are up to 95 percent accurate after only 30 days, Beltran said. And because taking the medication can have adverse side effects, people should be able to make an informed decision when deciding to take the medication, she said.

The sponsor of the bill agreed that the bill would not provide the victim with a doubtless knowledge about their attacker’s HIV status.

“While I know there is an issue with the tests, the percentages would still be on the side of the victim,” Greenwood said. “It’s all about knowing whether the attacker had the virus or not. That’s all that matters.”

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Seth Bracken

Seth Bracken is the editor of QSaltLake

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