Sex-assault HIV bill goes to final floor vote

By Lynda Arakawa
Advertiser Capitol Bureau

The Legislature is poised to pass a bill that would give sex assault victims the right to request HIV testing of the person charged with the offense.

Current law allows judges to order HIV testing for people convicted of sex assault, but supporters of the bill have said testing people earlier, at the stage they are charged, would help victims by giving them information sooner. Opponents, however, said it raises constitutional and confidentiality concerns.

"A lot of people have anxiety, especially those who are victims of sexual assault," said House health committee chairman Dennis Arakaki, D-28th (Kalihi Valley, Kamehameha Hts.). "This is more to provide peace of mind."

Supporters of the legislation, including the Sex Abuse Treatment Center and law enforcement officials, have said many sex assault victims are worried about the chances of contracting a sexually transmitted disease. They said victims who have contracted HIV may not test positive until 6 to 12 months after the assault because HIV has an incubation period.

But the American Civil Liberties Union, the public defender's office and AIDS organizations have raised concerns about the bill's effect on the confidentiality rights of suspects and victims.

Opponents have also argued that involuntary testing of the accused raises serious constitutional questions and that it makes better sense to encourage victims to be tested periodically following the assault.

Under the bill, the court would be required to order someone charged with sex assault or incest to be tested for HIV if the victim requests it. It would also mandate HIV testing of people convicted of sex assault or incest. Judges and other law enforcement authorities would not be able to use the results in sentencing, parole proceedings or probation reports.

Rep. Blake Oshiro, House co-chairman of the committee, said he initially had a difficult time with the issue because he is a strong believer in individual civil rights.

"But then I really took a step back and I thought about it from the victims' perspective," said Oshiro, D-33rd (Aiea, Halawa Hts., Red Hill). "If she was subjected to that kind of violent intrusion, she should be able to know how to live for the next few months."

Oshiro said he believes the bill is focused narrowly enough and has a compelling state interest to withstand legal challenges.

Arakaki said there are enough safeguards to protect rights of the accused, but acknowledged that confidentiality cannot be guaranteed.