In the Matter of Juveniles A, B, C, D, E.
No. 58364-1
En Banc.
March 11, 1993.
After modification, further reconsideration denied April 29, 1993.
80 Wash. 2d 80
Accordingly, we affirm in part and reverse in part.
ANDERSEN, C.J., and UTTER, BRACHTENBACH, DURHAM, SMITH, and GUY, JJ., concur.
After modification, further reconsideration denied April 29, 1993.
David S. McEachran, Prosecuting Attorney, and Greg Greenan, Deputy, for respondent.
Jacqueline S. Hebert on behalf of the American Civil Liberties Union, amicus curiae for appellants.
DURHAM, J. — Five juveniles were found to have committed various sexual offenses under
All of the sexual offenses were committed in Whatcom County. Juvenile “A“, a 14-year-old male, was charged with the crime of indecent liberties,
Juvenile “B“, a 14-year-old boy, was charged with first degree child molestation,
Juvenile “C“, a 15-year-old girl, was charged with three counts of first degree child molestation,
I let [a 5-year-old boy] lay on top of me. We were both clothed. I let him touch my breast and look inside my underwear. He also kissed my mouth.
The affidavit for probable cause contains additional allegations. First, while baby-sitting, “C” touched the young boy‘s penis on several different occasions. Second, while baby-sitting a 4-year-old girl, “C” removed her clothes, scratched herself in the genitals, and then proceeded to place her hand inside the young girl‘s underpants, rubbing her to the point of pain. Finally, while baby-sitting, “C” undressed a young boy, showed him to the other children and touched his penis.
[An 11-year-old girl] and I went to the Lynden Middle School to get some pop. I started tickling her, and then I kissed her. We started playing around and I asked her if she wanted to go to the back of the middle school. She said yes, and we laid down and she was laughing. We played around some more. I took off her shirt and unbuttoned her pants and touched her breasts and crotch area.
The affidavit of probable cause additionally alleged that he removed his clothes, as well as her clothes. Moreover, “[h]e rubbed his genitals and hands against [her] genitals for several minutes.”
Juvenile “E“, a 15-year-old boy, was charged with first degree child molestation,
Pursuant to
ADJUDICATION/CONVICTION
As part of the public health chapter covering sexually transmitted diseases,
Appellants argue that
When statutory language is used in an unambiguous manner we will not look beyond the plain meaning of the words. Everett Concrete Prods., Inc. v. Department of Labor & Indus., 109 Wn.2d 819, 822, 748 P.2d 1112 (1988). Unfortunately, however, such is not the case with the statute before us. The statute uses both the terms “convicted” and “offense” without differentiation. Subsection (1) of
Instead, it is necessary to turn to statutory construction to determine the meaning of this statute. Morris v. Blaker, 118 Wn.2d 133, 143, 821 P.2d 482 (1992). In accomplishing this task, our primary directive is to adopt that interpretation which best advances the statute‘s legislative purpose. See, e.g., State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992).
The purposes of the mandatory HIV testing statute are broad:
The legislature declares that sexually transmitted diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state. The legislature finds that the incidence of sexually transmitted diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death.
Interpreting
Excluding juvenile sexual offenders from the statute‘s operation would only thwart the testing statute‘s broad public health policies. There is no evidence that the Legislature intended to limit the effectiveness of the mandatory AIDS testing statute by narrowing its application to adult sexual offenders. Indeed, the legislative mandate to protect the health of victims, offenders, and society is better served when juvenile sexual offenders are included in
Appellants rely heavily upon a recent Attorney General opinion, AGO 23 (1991), which concluded that
This reasoning is not persuasive. AGO 23 fails to recognize that the mandatory HIV testing statute is a public health law, not a criminal one. The testing statute does not define the elements of a crime, nor does anyone suggest that testing is imposed as an additional punitive measure. As such, special protections applicable to criminal statutes, like the rule of lenity, are not relevant. Moreover, the AGO misreads
In short, the Attorney General‘s reliance on Frederick is misplaced because the concerns that motivated the analysis in that case are not present here.5 We therefore apply our normal rules of statutory construction and construe the testing statute to include juvenile sexual offenders.
FOURTH AMENDMENT
Appellants argue that taking a blood sample for an HIV test violates constitutional prohibitions against unreasonable searches and seizures.6 See
For searches outside the criminal context, the Supreme Court has developed the “special needs” doctrine. This doctrine applies “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” Skinner, at 619 (citations omitted). Such a situation existed in Skinner, where the Court sanctioned the use of urine and blood tests in an effort to prevent train accidents. The Court has also found special needs rendering warrant and probable cause requirements impractical in the supervision of probationers, the operation of schools, searches of highly regulated businesses, and the operation of prisons. Skinner, at 619-20. Numerous courts have found the special needs doctrine to be appropriate when analyzing nonconsensual HIV testing. See, e.g., Leckelt v. Board of Comm‘rs of Hosp. Dist. 1, 909 F.2d 820, 832 (5th Cir. 1990); Dunn v. White, 880 F.2d 1188, 1193 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); Anonymous Fireman v. Willoughby, 779 F. Supp. 402, 417 (N.D. Ohio 1991); Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 1272, 267 Cal. Rptr. 666 (1990).
We agree with this approach. When evaluating nonconsensual HIV testing, this doctrine requires that we determine:
- whether the blood testing scheme arises from a “special need” beyond the needs of ordinary law enforcement and
- if so, whether the intrusion of compulsory blood testing for AIDS, without probable cause or individualized suspicion that the
AIDS virus will be found in the tested person‘s blood, is justified by that need.
Johnetta J., 218 Cal. App. 3d at 1274.
As to the first question, several factors are relevant. First, the testing statute is not part of the criminal code; it is designed to protect the victim, the public, and the offender from a serious public health problem. Second, unlike the typical Fourth Amendment situation, the appellants are not being tested in an effort to gain evidence for a criminal prosecution. Third, a positive HIV test does not place the appellants at risk for a new conviction or a longer sentence. Finally, traditional standards which require individualized suspicion are impractical because HIV infected sexual offenders often have no outward manifestations of infection. Thus, we conclude that mandatory HIV testing of sexual offenders under
The next step in the Skinner inquiry is to balance the individual‘s interest in avoiding testing against the government‘s interest in mandatory testing. In general, for individuals, the impact of a blood test is minimal. State v. Meacham, 93 Wn.2d 735, 737, 612 P.2d 795 (1980). As the Supreme Court recognized in Winston v. Lee, 470 U.S. 753, 762, 84 L. Ed. 2d 662, 105 S. Ct. 1611 (1985), it is “society‘s judgment that blood tests do not constitute an unduly extensive imposition on an individual‘s personal privacy and bodily integrity.”7
When the State seeks to test a convicted criminal, the intrusion on individual interests is even more limited. Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 1992). Although such individuals do not forfeit their rights, their constitutional prerogatives are subject to “substantial limitations and restrictions“. See Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990). For sexual offenders in particular, their expectation of privacy in
Because AIDS can be transmitted through sexual contact, there is a direct nexus between the criminal behavior and the government‘s action. Therefore, the offender should reasonably expect that his blood will be tested for the virus. The assailant‘s own actions work to weaken his expectation of privacy.
Bernadette Pratt Sadler, Comment, When Rape Victims’ Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 Wash. L. Rev. 195, 207 (1992).
Despite this minimal expectation of privacy, we are nonetheless sensitive to the special concerns raised by mandatory HIV testing. Such testing presents not only the initial withdrawal of blood, but also the subsequent testing of that blood for a sexually transmitted disease. Government of V.I. v. Roberts, 756 F. Supp. 898, 901 (D.V.I. 1991). If the sexual offender tests positive, then he or she might suffer the well-documented gauntlet of discrimination facing infected persons. See generally Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 628, 818 P.2d 1056 (1991); Roberts, 756 F. Supp. at 902.
These potential harms, however, are minimized in the case before us. The stigma a person faces as a result of a positive HIV test:
is a function of how widely the results are disseminated. The risk of stigmatic harm therefore speaks not to whether the search should transpire in the first instance, but rather to the extent to which the private medical facts learned from the procedure should be disclosed.
Roberts, 756 F. Supp. at 902. Washington‘s mandatory AIDS testing statute emphasizes the importance of privacy and confidentiality.
In contrast, the State‘s reasons for testing are substantial. Most notably, the State has a compelling interest in combating the spread of AIDS. Anonymous Fireman, 779 F. Supp. at 416. Control of a communicable disease is a valid and compelling exercise of the State‘s police power. Love, 226 Cal. App. 3d at 740. Testing sexual offenders directly addresses this purpose. See People v. C.S., 222 Ill. App. 3d 348, 583 N.E.2d 726 (1991), appeal denied, 602 N.E.2d 461 (1992).
The State also has an interest in protecting the rights of victims. As the Johnetta J. court pointed out:
Patients are anxious to know the HIV status of the person with whom they have come into contact. This information is useful for both the treating physician and the patient. A positive test of the person who may have infected the patient would inform the physician that additional and more extensive monitoring of the patient‘s medical condition is warranted than would be the case were the results of the test negative. If the results of the HIV test of the source is negative, this information may be useful in helping to allay the concerns of the patient.
218 Cal. App. 3d at 1266 (quoting Dr. William Drew, M.D.). Where a victim is left to wonder as to an attacker‘s HIV status, the “mental anguish suffered by the victim... is real and continuing, and the intrusion upon defendant of a routine drawing of a blood sample is very minimal and commonplace.” People v. Thomas, 139 Misc. 2d 1072, 1075, 529 N.Y.S.2d 429, 431 (Cy. Ct. 1988).
A test can also aid in effective prison and probation management by alerting officials to a sexual offender‘s HIV status. “The outcome of a potential source‘s test affects the degree to which a person should undertake precautionary measures to ensure the virus is not spread to others.” Roberts, 756 F. Supp. at 904. Testing can prepare officials to better protect other inmates. Moreover, when HIV status is known, a prisoner can receive appropriate treatment to possibly stall the onslaught of symptoms. This helps to further the State‘s constitutional “obligation to provide minimally adequate
The State has a further interest in aiding a sexual offender who is potentially HIV positive. By providing pre- and posttest counseling, the State can minimize the impact of HIV status on the offender and protect future victims by helping an offender to alter behavior. Although there is no cure for AIDS, this fact does not justify an enforced ignorance of HIV status. The governmental interest supporting mandatory HIV testing “outweighs the psychological impact of the assailant‘s receipt of a positive test for HIV.” Johnetta J., 218 Cal. App. 3d at 1278.
Appellants may be correct that only on occasion will testing reveal an HIV infected offender, and that an infected offender will not always pass the virus on to a victim. Nonetheless, the State‘s interest in testing is still substantial. Although an HIV test is not dispositive of either victim or offender HIV status, it is effective enough to justify its use. Johnetta J., 218 Cal. App. 3d at 1280; Roberts, 756 F. Supp. at 903. Lack of perfection does not render a legislative scheme invalid. Although testing may be an ineffective use of state resources, it is not for the court to pass on the fiscal wisdom of this legislation. Johnetta J., 218 Cal. App. 3d at 1285.
Appellants also argue that the statute improperly includes behavior which is incapable of passing the virus. For example, some of the cases before us involve no passing of bodily fluids. However, the Legislature has reasonably determined that sexual offenders are a high-risk group for exposing others to the AIDS virus. See People v. C.S., 222 Ill. App. 3d 348, 356, 583 N.E.2d 726, 729 (1991), appeal denied, 602 N.E.2d 461 (1992). The fact that the particular act for which an offender was prosecuted involved a minimal risk of exposure to HIV does not remove the State‘s interest in testing. First, the ambiguous nature of the contacts between offender and victim enforces the legislative judgment to test all offenders. Given the youth of the victims and the trauma imposed by the
We recognize that the constitutional arguments raised here involve highly sensitive and difficult issues. As such, we have attempted to formulate a careful and reasoned approach. Still, the concurrence/dissent claims that there is no limiting principle in the majority opinion. It asks: “what is to prevent the mandatory testing of other groups whose individual members are not charged and convicted of criminal conduct?” Concurrence/dissent, at 103. Fortunately, the question incorporates the answer. The holding in this case applies only to convicted sex offenders who, as discussed above, are subject to decreased expectations of privacy. See supra at 91-94. There are no other “groups” included — either explicitly or implicitly — in our holding.
In sum, we hold that the mandatory HIV testing of sexual offenders comports with the Fourth Amendment. Under Skinner, this testing constitutes a special need which is “obvious and compelling.” Love, 226 Cal. App. 3d at 743; accord Dunn, 880 F.2d at 1193-94; Johnetta J., 218 Cal. App. 3d at 1280.
RIGHT TO PRIVACY
Appellants further argue that mandatory HIV testing violates the constitutional right to privacy. We have recognized two types of privacy: the right to nondisclosure of intimate personal information or confidentiality, and the right to autonomous decisionmaking. O‘Hartigan v. Department of Personnel, 118 Wn.2d 111, 117, 821 P.2d 44 (1991);
Although the
The legislature further finds that sexually transmitted diseases, by their nature, involve sensitive issues of privacy, and it is the intent of the legislature that all programs designed to deal with these diseases afford patients privacy, confidentiality, and dignity.... It is therefore the intent of the legislature to provide a program that... provides patients with a secure knowledge that information they provide will remain private and confidential.
Nor do we find conflict with the autonomy branch of privacy. The nonconsensual taking of blood implicates the personal autonomy branch of privacy. Farmer, at 429. Nonetheless, the various compelling state interests served by
Thus, we hold that the testing of sexual offenders under
ANDERSEN, C.J., and BRACHTENBACH, SMITH, and GUY, JJ., concur.
UTTER, J. (concurring in part, dissenting in part) — I disagree with the majority‘s conclusion that AIDS testing of
In this case, the majority abandons one of the core elements of the Fourth Amendment, significantly diminishing the protection afforded by that amendment, on the grounds that sexual offenders are a “high-risk” group for transmission of the AIDS virus. While the majority‘s recognition of the grave public threat posed by AIDS is admirable, it is precisely when the public need seems most dire that we must most resolutely defend those freedoms which lie at the core of our society. As Justice Thurgood Marshall so aptly reminded us:
History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.... [W]hen we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.
(Citations omitted.) Skinner v. Railway Labor Executives’ Ass‘n, 489 U.S. 602, 635, 103 L. Ed. 2d 639, 109 S. Ct. 1402, 1422 (1989) (Marshall, J., dissenting). Posterity will judge us not only in how effectively we as a society respond to crisis posed by the AIDS virus, but also by the extent to which we respect the liberty and dignity of our citizens as we face the challenge posed by AIDS.
I
THE FOURTH AMENDMENT
The majority is correct in concluding AIDS testing of sexual offenders should be analyzed under the “special needs” doctrine described by the United States Supreme Court in Skinner. Nonetheless, I disagree with both the majority‘s interpretation of the “special needs” inquiry and with its application to the facts of the present case.
The Fourth Amendment to the federal constitution protects the citizens of this country against “unreasonable searches and seizures“.
One of those limited exceptions is the “special needs” test described in Skinner. Under this test, governmental agencies may dispense with the ordinary warrant and probable cause requirements when those requirements impede the pursuit of an important governmental objective. In Skinner, for example, the United States Supreme Court upheld a mandatory drug testing scheme for railroad employees that did not provide for individualized suspicion prior to testing.
In describing this “special needs” analysis, the Skinner Court stated: “When faced with ... special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements“. 489 U.S. at 619.11
The “special needs” analysis therefore focuses not only on the need for the government to undertake a particular type of search, but also upon the need for the government to undertake such a search without the ordinary warrant and probable cause requirements. In other words, it is not only the special need to search that is at issue, but also the special need to search without a warrant or probable cause.
In applying the test to the warrant requirement, the Skinner Court balanced the private interests in a warrant requirement against the impact such a requirement would have on the pursuit of public safety. In particular, the Court directed its inquiry to the extent to which a warrant requirement would “frustrate the governmental purpose behind the search.’ ” 489 U.S. at 623 (quoting Camara v. Municipal Court, 387 U.S. 523, 533, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967)). See also Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) (warrantless blood test for alcohol permissible because delay would allow alcohol to be physically absorbed, thus destroying evidence). After weighing these interests, the Court concluded the warrant requirement would be impractical under the circumstances.
The Court analyzed the probable cause requirement in similar fashion by asking whether such a requirement would place the government‘s interest “in jeopardy“. 489 U.S. at 624. Ultimately, the Skinner Court dispensed with the probable cause requirement because “[i]t would be unrealistic, and inimical to the Government‘s goal of ensuring safety in rail transportation, to require a showing of individualized suspicion in these circumstances.” 489 U.S. at 631.
This distinction between policy analysis of the testing itself and analysis of the warrant and probable cause requirements is more than a distinction without a difference. Simply
The Skinner framework thus appears clear enough. Even after the identification of a “special need“, the Fourth Amendment requires a demonstration that a warrant or probable cause requirement is impractical. The “special needs” balancing should therefore compare the effect of such requirements on both an individual‘s privacy interests and upon the pursuit of the government‘s “special need“.
B
The majority, however, applies a different version of this analysis. According to the majority, the essence of the “special needs” inquiry is “to balance the individual‘s interest in avoiding testing against the government‘s interest in mandatory testing.” Majority opinion, at 92. In stating the inquiry in this fashion, the Skinner analysis of the practicality of the probable cause requirement is mistaken for a policy evaluation of the need for the testing itself.
The majority‘s analysis of the competing interests at stake tracks its understanding of the “special needs” analysis. After discussing the “minimal Fourth Amendment intrusion” of blood testing, the majority describes the State‘s interests in testing. These interests are “a compelling interest in combating the spread of AIDS“, majority opinion, at
As I outline in section C below, I do not believe these interests justify the sort of broad-gauged testing authorized by
Following its “special needs” analysis, the majority does attempt to defend the statute‘s disturbing omission of probable cause. Principally, it argues that “the Legislature has reasonably determined that sexual offenders are a high-risk group for exposing others to the AIDS virus.” Majority opinion, at 95. In essence, even if there is no reason to believe that a sexual offender transmitted bodily fluids in this particular instance, it is reasonable to assume they did so in the past (or will do so in the future) and therefore we can force them to undergo a test.
I cannot accept the logical implications of such a view. In essence, the majority has concluded that the Legislature need merely make a “reasonable determination” of risk in order to require mandatory testing. In this case, that determination means the mandatory testing of sex offenders. The majority‘s rationale, however, could be extended much further. If all the Legislature must do is make a “reasonable determination” of risk in order to require testing, what is to prevent the mandatory testing of other groups whose individual members are not charged and convicted of criminal conduct? Because I perceive no limiting principle to the majority‘s analysis, I cannot accept its reading of the Fourth Amendment. While the majority does specifically limit its holding, the inescapable implications to be drawn from the holding cannot be so limited.
The majority also attempts to defend the breadth of the statute due to the “ambiguity” of the contacts between offender and victim. Majority opinion, at 95-96. In this respect, it is useful to remember we are not considering proof, but merely probable cause. To require testing, the authorities would not need to prove transmission, but merely establish probable cause. Furthermore, the type of finding required by probable cause would be no different from a multitude of the factual findings we expect our trial courts to make daily.
C
Even if we accept the majority‘s view of “special needs” analysis, the interests it identifies are insufficient to justify the broad-gauged mandatory testing it seeks to uphold.
First, the majority argues “the State has a compelling interest in combating the spread of AIDS.” Majority opinion, at 94. This argument, like the justification for the statute‘s lack of probable cause, proves too much. If “combating the spread of AIDS” is compelling and blood tests are only minimally intrusive,12 then conceivably the Legislature can constitutionally choose to require mandatory testing for any individual whether charged and convicted or not.
The majority next argues “[t]he State also has an interest in protecting the rights of victims.” Majority opinion, at 94. It points out, appropriately, that victims left to wonder about their attacker‘s HIV status suffer real mental anguish. This
The majority also argues testing can “aid in effective prison and probation management by alerting officials to a sexual offender‘s HIV status.” Majority opinion, at 94. It may be true that knowledge of the HIV status of prison inmates might serve the compelling state interest in prison management; however, the testing authorized by
The majority‘s concern with probation management is also unpersuasive. The majority does not explain how knowledge that a given individual is HIV positive will substantially assist a probation officer in the performance of his or her duties. While it is true that any information about a probationer may be useful to a probation officer, that alone does not indicate the presence of a compelling state interest.
Lastly, the majority contends “[t]he State has a further interest in aiding a sexual offender who is potentially HIV positive.” Majority opinion, at 95. Again, this type of argument proves too much. The State‘s interest in assisting a sexual offender who is potentially HIV positive is no greater than its interest in assisting any other sort of criminal
D
I believe an appropriate application of the “special needs” test would require the existence of probable cause to believe that transmission of bodily fluids occurred before nonconsensual HIV testing could take place.
The first step is to evaluate the individual‘s interest in a probable cause requirement. In doing so, we should be mindful of the invasiveness of an AIDS test. Although the United States Supreme Court has indicated that in some instances extraction of blood is minimally invasive for Fourth Amendment purposes,14 AIDS testing is different. First, the analysis of an individual‘s blood compromises the individual‘s privacy interest in his or her medical condition. This court has repeatedly emphasized that individuals have an important privacy interest in medical information. Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 628, 818 P.2d 1056 (1991); Bedford v. Sugarman, 112 Wn.2d 500, 509-10, 772 P.2d 486 (1989).15
More importantly, AIDS testing, unlike blood alcohol or drug testing, can have a devastating impact on an individual‘s life. See Comment, When Rape Victims’ Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 Wash. L. Rev. 195, 208-09 (1992). The psychological impact on the individual has been com-
The social consequences can be equally devastating. A positive AIDS test may lead to discrimination in employment, education, housing, and medical treatment. Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 628, 818 P.2d 1056 (1991); Note, Compulsory AIDS Testing of Individuals Who Assault Public Safety Officers: Protecting the Police or the Fourth Amendment?, 38 Wayne L. Rev. 461, 481 (1991-1992). The impact of a positive AIDS test on all aspects of a person‘s life is severe. Thus, individuals have a strong interest in restricting mandatory government AIDS testing. The probable cause requirement serves to protect this interest by limiting the opportunity for government imposed testing to those circumstances when transmission of the AIDS virus is possible.
The need for the probable cause requirement is not minimized by the provisions for limited disclosure in
With respect to the government‘s interest, a probable cause requirement would not be impractical under the circumstances. While I agree the State has a powerful interest in protecting the victims of sexual offenders from AIDS,16 AIDS is transmitted “only by contact of open wounds or body cavities with blood, semen, or vaginal secretions — usually in sexual relations, by infusion or innoculation [sic] of blood in transfusions or intravenous needle-sharing activities or prenatally.” Harris v. Thigpen, 727 F. Supp. 1564, 1567 (M.D. Ala. 1990), aff‘d in part, vacated in part, 941 F.2d 1495 (11th Cir. 1991); see also Friedland & Klein, Transmission of the Human Immunodeficiency Virus, 317 New Eng. J. Med. 1125, 1132 (Oct. 29, 1987) (noting that “[o]nly blood and semen have been directly implicated in transmission, and transmission by vaginal fluid and breast milk probably occurs“). Thus, the State‘s interest in protecting the victim of sexual assaults from AIDS is only implicated where there was a transmission of bodily fluids.
The Eighth Circuit has recognized the limited nature of the State‘s interest in this regard. In Glover v. Eastern Neb. Comm‘ty Office of Retardation, 867 F.2d 461 (8th Cir.), cert. denied, 493 U.S. 932 (1989), that court held nonconsensual AIDS testing was unconstitutional where the risk of transmission was negligible or nonexistent. A Nebraska administrative agency had created a personnel policy requiring certain employees who serviced the needs of the retarded to submit to mandatory AIDS testing. The Eighth Circuit held that the risk of transmission to the agency‘s mentally retarded clients was negligible and therefore did not justify requiring employees to submit to an AIDS test. 867 F.2d at 464. Compare Leckelt v. Board of Comm‘rs of Hosp. Dist. 1, 909 F.2d 820 (5th Cir. 1990) (mandatory testing permissible where nurse
Significantly, all of the cases cited by the majority where AIDS testing of sexual offenders has been approved involved the passage of bodily fluids. See People v. Thomas, 139 Misc. 2d 1072, 529 N.Y.S.2d 429 (Cy. Ct. 1988) (ordering blood test where sexual intercourse and oral sodomy); People v. Cook, 143 A.D.2d 486, 532 N.Y.S.2d 940 (ordering AIDS test of convicted rapist), appeal denied, 73 N.Y.2d 786 (1988); Government of V.I. v. Roberts, 756 F. Supp. 898 (D.V.I. 1991) (ordering testing of rapist). A legitimate concern for the psychological and physical well-being of the victims in these cases led to an approval of the test.
The probable cause requirement also does not impede the government‘s objectives because trial courts are perfectly capable of making a finding as to whether or not bodily fluids passed. See Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 1280, 267 Cal. Rptr. 666, 681 (1990) (holding that testing of a person who assaults a police officer is valid “if there is probable cause to believe the officer has been exposed to the assailant‘s bodily fluids“). (Italics mine.) Trial courts can make this determination, allowing testing where there is probable cause to believe the assailant committed an act which poses a risk of exposing a victim to the AIDS virus.
Given the strong individual interest in the probable cause requirement, and the absence of important reasons to dispense with that requirement, I do not find such a requirement impractical under the circumstances. Consequently, I would limit mandatory AIDS testing to cases where there is probable cause to believe transmission of bodily fluids took place.
II
PRIVACY
An analysis of the constitutional privacy issues in this case compels the same result.
Nonetheless, it is unnecessary to inquire at length as to whether AIDS testing of offenders where no bodily fluids have passed violates informational privacy, because it violates the other aspect of privacy, the right to personal autonomy. The nonconsensual taking of blood for AIDS testing implicates the personal autonomy branch of privacy, which is a fundamental right triggering strict scrutiny. State v. Farmer, 116 Wn.2d 414, 429, 805 P.2d 200 (1991).
Although the majority does acknowledge that strict scrutiny is appropriate for analyzing the autonomy rights of privacy, it fails to apply that test correctly. Therefore, it reaches the erroneous conclusion that AIDS testing is appropriate even where there is no passage of bodily fluids.
The majority correctly notes that where the State invades an individual‘s privacy, it has the burden of showing a compelling governmental interest that justifies the invasion, that the means used are narrowly tailored to meet that interest. Majority, at 96-97. In addition, the impact on a
The State‘s interest in notifying the victim is compelling, and the means are narrowly tailored to achieve that end. Although it might be argued that testing the victim would be less intrusive than the offender, I reject that argument because of the long latency period before the virus could be detected in the victim.17
If the victims in this case have not suffered a contact that poses a risk of transmitting AIDS, the State‘s sole residual interest is in limiting the spread of the virus.18 Though this may be a compelling interest, nonconsensual AIDS testing is
First, the mechanism the State has chosen to further its interest is not narrowly tailored. There is no evidence that the juveniles here are part of a high-risk group. Certainly their conduct prior to the offenses they committed does not so indicate. The majority simply accepts the Legislature‘s sweeping judgment that all of those who are convicted of committing sex offenses should be tested. The majority‘s approach is more consistent with rational basis review, not the strict scrutiny we must apply when a fundamental right, such as privacy, is impacted.
In addition, because AIDS testing infringes on a fundamental right, the State is obliged to use means which are the least destructive of individual liberty to achieve its goal. Other less intrusive means exist for the State to realize its interest in checking the spread of the AIDS virus. For example, the counseling already provided for in
Therefore, in the absence of a transfer of bodily fluids that poses a risk of transmitting AIDS, the State has failed to demonstrate that AIDS testing is either narrowly tailored or the least intrusive means for realizing its interest.
III
CONCLUSION
I would remand this case to the trial court to determine whether there was probable cause that any of these juvenile offenders passed bodily fluids to their victims that could give rise to the AIDS virus. An AIDS test should only be performed if the trial court determines that such contact did occur.
JOHNSON, J., concurs with UTTER, J.
Reconsideration denied April 29, 1993.