State v. Bemer, 339 Conn. 528

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STATE OF CONNECTICUT v. BRUCE JOHN BEMER

(SC 20195)

Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins, Kahn and Vertefeuille, Js.*

Syllabus

Pursuant to statute (§ 54-102a (a)), a court presiding over a pending case involving a violation of certain sex offenses, including patronizing a prostitute who was the victim of human trafficking, may order that the accused be examined for any sexually transmitted disease (STD).

Pursuant further to statute (§ 54-102a (b)), a court presiding over a pending case involving a violation of certain sex offenses during which a sexual act occurred, including patronizing a prostitute who was the victim of human trafficking, may order that the accused be tested for the presence of the human immunodeficiency virus (HIV), ‘‘[n]otwithstanding the provisions of’’ the statute (§ 19a-582) requiring a person’s ‘‘general consent’’ for that person’s HIV-related testing.

The defendant, who had been charged with the crimes of patronizing a prostitute who was the victim of human trafficking and conspiracy to commit trafficking in persons, appealed from the trial court’s order, in response to motions filed by the state and certain of the defendant’s alleged victims, requiring that he submit to an examination for STDs pursuant to § 54-102a (a) and HIV testing pursuant to § 54-102a (b). The charges stemmed from the defendant’s involvement with a person who had arranged for young males to engage in sexual activities with the defendant in exchange for money. On appeal, the defendant claimed, inter alia, that the trial court had abused its discretion in ordering HIV testing on the ground that the trial court was required to find, before issuing such an order, that there was a clear and imminent danger to the public health or the health of a person and that there was a compelling need for the HIV test result that could not be accommodated by other means, and the state presented no evidence in furtherance of satisfying that standard. The defendant also contended that, to the extent that an examination for STDs and HIV testing could be ordered under § 54-102a (a) and (b), respectively, without a finding of a compelling need, those statutory provisions violated the defendant’s constitutional rights. During the pendency of this appeal, the defendant was convicted of the charged crimes. Held:

1. The trial court’s order was an appealable final judgment, and the defendant’s conviction of the charged crimes had no bearing, jurisdictional or otherwise, on this appeal: the court’s order terminated a separate and distinct proceeding, as it involved a discrete matter entirely distinct from and independent of the adjudication of the defendant’s guilt, and, accordingly, the proceedings concerning the propriety of that order were wholly severable from the proceedings pertaining to the resolution of the defendant’s criminal case, which could and did advance separate and apart from this appeal; moreover, although § 54-102a authorizes a trial court to issue an order pursuant to that statute while a case is ‘‘pending’’ in that court, whereas a related statute (§ 54-102b) delineates the circumstances under which a defendant’s HIV testing shall be ordered upon motion following conviction, there was nothing in § 54-102a or § 54-102b to suggest that § 54-102b was intended to place a temporal limitation on the execution of an order properly issued pursuant to § 54-102a prior to a conviction, and § 54-102b made no provision for the HIV testing of persons convicted of offenses of which the defendant ultimately was convicted.

2. The trial court did not abuse the discretion conferred on it by § 54-102a (b) in ordering that the defendant submit to HIV testing: there was no merit to the defendant’s claim that the trial court was obligated to adhere to the requirement set forth in § 19a-582 (d) (8) that it find, before ordering HIV testing, a clear and imminent danger to the public health or the health of a person and that the person seeking the testing of the defendant has demonstrated a compelling need for the test result that

cannot be accommodated by other means, as a review of the language of § 54-102a (b), its legislative history, and related statutes, as well as the language of § 19a-582, indicated that the legislature did not intend for the requirement of § 19a-582 (d) (8) to apply to an order for HIV testing under § 54-102a (b); accordingly, § 54-102a (b) broadly authorizes a trial court to order HIV testing when, as in the present case, the conditions of that statute—that the defendant has been charged with committing an offense enumerated in that statute, the offense involved a sexual act, and the charge is pending before the court—have been met.

3. To comport with the provision of the Connecticut constitution (art. I, § 7) prohibiting unreasonable searches and seizures, a court is required to make a finding, prior to ordering an examination for STDs pursuant to § 54-102a (a) or HIV testing pursuant to § 54-102a (b), that such an examination or testing would provide useful, practical information to a victim that could not reasonably be obtained in another manner, but this court rejected the defendant’s contention that a trial court must find, before issuing an order for such an examination or testing, that there is probable cause to believe that the defendant has an STD or HIV: this court reviewed the factors set forth in State v. Geisler, 222 Conn. 672, which included consideration of federal case law concerning suspicionless searches and the special needs doctrine, sister state case law addressing the constitutionality of statutes that authorize nonconsensual HIV testing of persons charged with certain crimes, and contemporary understandings of applicable economic and sociological norms, and relevant public policies as reflected in the legislative history of § 54-102a, and concluded that the issuance of an order for HIV testing pursuant to § 54-102a (b) based solely on a finding that the conditions of that statute have been met violates a defendant’s right to be free from unreasonable searches and seizures under article first, § 7, as, in many cases, such testing would provide no real benefit to the victim, and, under those circumstances, the state’s interest in requiring testing is not sufficient to override a defendant’s recognized privacy interest; accordingly, this court placed an interpretive gloss on § 54-102a to render it compatible with the requirements of article first, § 7, by requiring a court to find that an examination for STDs or HIV testing would provide useful, practical information to a victim that could not reasonably be obtained otherwise; moreover, because the trial court did not apply the foregoing standard and the state and the victims were not on notice that they were required to satisfy that standard in filing their motions pursuant to § 54-102a (a) and (b), the trial court’s order was reversed, and the case was remanded for a new hearing on those motions.

(Two justices concurring separately in one opinion)

Argued October 21, 2019—officially released July 14, 2021**

Procedural History

Substitute information charging the defendant with patronizing a prostitute and conspiracy to commit human trafficking, brought to the Superior Court in the judicial district of Danbury, where the court, Shaban, J., granted, with certain restrictions, the state’s and certain of the alleged victims’ motions for an order directing the defendant to undergo an examination for sexually transmitted diseases and testing for the human immunodeficiency virus, from which the defendant appealed. Reversed; further proceedings.

Wesley W. Horton, with whom were Brendon P. Levesque and, on the brief, Ryan Barry and Anthony Spinella, for the appellant (defendant).

Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Sharmese L. Hodge, assistant state’s attorney, for the appellee (state).

James J. Healy, Gerald S. Sack, Joel T. Faxon and

Kevin C. Ferry filed a brief for the alleged victims as amici curiae.

Opinion

PALMER, J. After the defendant, Bruce John Bemer, was charged with patronizing a prostitute who was the victim of human trafficking in violation of General Statutes (Supp. 2014) § 53a-83 (c) (2) (A)¹ and conspiracy to commit trafficking in persons in violation of General Statutes (Rev. to 2011) §§ 53a-192a and 53a-48,² the state filed a motion seeking a court order requiring the defendant to submit both to an examination for sexually transmitted diseases pursuant to General Statutes § 54-102a (a) and to testing for human immunodeficiency virus (HIV) pursuant to § 54-102a (b).³ Thereafter, certain victims of the defendant’s allegedly criminal misconduct filed similar motions. The trial court granted the various motions and ordered the defendant to submit to such an examination and testing. The defendant then filed this appeal,⁴ claiming that the trial court had abused its discretion in ordering testing under § 54-102a (b) because, the defendant maintains, that statutory subsection incorporates the standard set forth in General Statutes § 19a-582 (d) (8); see footnote 12 of this opinion; which requires the court to find that there is ‘‘a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result that cannot be accommodated by other means’’ before it may order HIV testing, and the state had presented no evidence in satisfaction of that standard.⁵ The defendant further contends that, to the extent that subsections (a) and (b) of § 54-102a purport to authorize the trial court to issue orders thereunder without first making a finding of such compelling justification, they violate his rights under the fourth amendment to the United States constitution⁶ and article first, § 7, of the Connecticut constitution.⁷ After this appeal was filed, we directed the parties to brief, inter alia, the issue of whether the order for an examination and testing was an appealable final judgment.⁸

We conclude, preliminarily, that the trial court’s order is an appealable final judgment. We further conclude that, under article first, § 7, of the Connecticut constitution, the trial court must make a finding that either an examination pursuant to § 54-102a (a) or testing pursuant to § 54-102a (b), or both, would provide useful, practical information to a victim that cannot reasonably be obtained in another manner before it may order such examination or testing, or both. Accordingly, we reverse the trial court’s order and remand the case for a new hearing so that the trial court can apply the proper standard.

The record reveals the following undisputed facts and procedural history. On March 28, 2017, the defendant was arrested pursuant to a warrant and charged with patronizing a prostitute who was the victim of human trafficking and conspiracy to commit trafficking

in persons. The arrest warrant application indicated that, on August 5, 2016, Danbury police officers interviewed the defendant in connection with their investigation of a prostitution ring involving the sexual trafficking of mentally disabled young men. The defendant told the police that, over the course of the previous twenty to twenty-five years, an individual by the name of Robert King had been arranging for young males to engage in sexual activities with him in exchange for money. The defendant stated that, to the best of his recollection, King had made arrangements for him to engage in sexual activities with eight to ten young men, most of whom the defendant had sex with multiple times. The arrest warrant application also indicated that one of the victims told the police that the defendant had performed fellatio on him.⁹ The defendant told the police that the last occasion on which he had had sexual relations with a young man brought to him by King was approximately four months before the date of the interview.

On October 18, 2017, the state filed a motion seeking an examination of the defendant for sexually transmitted diseases under subsection (a) of § 54-102a and HIV testing of the defendant under subsection (b) of § 54-102a. The defendant opposed the motion on the ground that granting it without a prior showing of probable cause to believe that such an examination and testing would promote the health interests of the victims would serve no legitimate medical purpose and would therefore violate the defendant’s rights under the fourth amendment and article first, § 7. Thereafter, victims represented by Attorney Joel T. Faxon, victims represented by Attorney Kevin C. Ferry, and victims represented by Attorney Gerald S. Sack filed three separate motions seeking the same relief. The trial court conducted a hearing on the motions, at which the assistant state’s attorney and defense counsel appeared, and Faxon also appeared on behalf of certain victims. In addition, Attorneys Jonathan A. Cantor and Monique Foley appeared on behalf of the other victims who had not filed motions under § 54-102a. Although the parties adduced no evidence at the hearing, Faxon referred to the contents of the arrest warrant during argument.

In addition to a constitutional claim, defense counsel argued at the hearing that § 54-102a (b) and § 19a-582 (d) (8) must be read together to require the state and the victims to establish that the defendant posed a clear and imminent danger to the public health before the court could order HIV testing. Thereafter, the trial court summarily granted the motions.

This appeal followed. The defendant renews his claims that, under the statutory scheme, HIV testing authorized by § 54-102a (b) is conditioned on the showing mandated by § 19a-582 (d) (8), and, in any event, article first, § 7, of the state constitution requires proof of a compelling need for examination under § 54-102a (a) and testing under § 54-102a (b). We address each

of these claims in turn.

I

Before doing so, however, we address two threshold issues that implicate this court’s jurisdiction to entertain the present appeal: first, whether the trial court’s order constituted an appealable final judgment and, second, what effect, if any, does the defendant’s conviction have on this appeal.¹⁰ Both the state and the defendant contend that the trial court’s order was immediately appealable and that the defendant’s conviction has no bearing on this appeal. We agree with the parties.

‘‘[B]ecause our jurisdiction over appeals . . . is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim . . . . It is well established that [t]he principal statutory prerequisite to invoking our jurisdiction is that the ruling from which an appeal is sought must constitute a final judgment.’’ (Internal quotation marks omitted.) State v. Anderson, 318 Conn. 680, 698 n.6, 122 A.3d 254 (2015). ‘‘The appealable final judgment in a criminal case is ordinarily the imposition of sentence. . . . In both criminal and civil cases, however, we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) [when] the order or action terminates a separate and distinct proceeding, or (2) [when] the order or action so concludes the rights of the parties that further proceedings cannot affect them.’’ (Citations omitted; internal quotation marks omitted.) State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

‘‘The separate and distinct requirement of Curcio demands that the proceeding [that] spawned the appeal be independent of the main action. . . . This means that the separate and distinct proceeding, though related to the central cause, must be severable therefrom. The question to be asked is whether the main action could proceed independent of the ancillary proceeding.’’ (Citations omitted; internal quotation marks omitted.) State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984).

It is clear, as both parties recognize, that the order at issue in the present case terminated a separate and distinct proceeding under Curcio’s first prong because that order involves a discrete matter entirely distinct from and independent of the adjudication of the defendant’s guilt. As a consequence, the proceedings concerning the propriety of that order were wholly severable from the proceedings pertaining to the resolution of the defendant’s criminal case, which could and did advance separate and apart from this appeal. Cf. State v. Grotton, 180 Conn. 290, 294–95, 429 A.2d 871 (1980)

(questions involving fourth amendment violations must await review until after criminal trial and conviction when there is ‘‘a functional link between the consequences of an illegal search and seizure and a later conviction in order to make any putative constitutional error harmful and hence to require reversal’’); id., 295 (‘‘[o]rders granting or denying suppression [of illegally seized evidence] in the wake of . . . [suppression] proceedings are truly interlocutory, for the criminal trial is then fairly in train’’ (internal quotation marks omitted)). Indeed, the defendant’s criminal trial concluded during the pendency of this appeal; see footnote 8 of this opinion; whereas the controversy concerning the order issued pursuant to § 54-102a remains unresolved. We conclude, therefore, that that order was an appealable final judgment, and, consequently, it is properly the subject of this appeal.

With respect to the issue of whether the defendant’s conviction has any effect on this court’s appellate jurisdiction, that issue arises from the fact that § 54-102a authorizes a trial court to issue an order thereunder while a case is ‘‘pending’’ in that court, whereas General Statutes § 54-102b¹¹ delineates the circumstances pursuant to which HIV testing of a defendant shall be ordered upon motion following a conviction of certain enumerated offenses. There is nothing in § 54-102a or § 54-102b, or elsewhere in the statutory scheme, to suggest that § 54-102b was intended to place a temporal limitation on the execution of an order properly issued prior to conviction in accordance with § 54-102a. Moreover, § 54-102b applies to HIV testing only, and makes no provision for HIV testing of persons convicted of the offenses of which the defendant was convicted. Consequently, we agree with the parties that the fact that the defendant was convicted during the pendency of the present appeal has no bearing, jurisdictional or otherwise, on this appeal.

II

We now turn to the defendant’s claim that the trial court abused its discretion in ordering HIV testing pursuant to § 54-102a (b) because the court did not adhere to the requirement of § 19a-582 (d) (8)¹² that there first must be a finding of ‘‘a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result that cannot be accommodated by other means.’’ As the defendant notes, the state does not claim that the trial court made any such a finding or that the evidence presented at the hearing would have supported that finding. The state contends that § 54-102a (b) does not incorporate § 19a-582 (d) (8) but, instead, broadly authorizes the trial court to order testing when, as in the present case, the defendant has been charged with committing an offense enumerated in § 54-102a (b) that involved a sexual act. We agree

with the state.

Whether § 54-102a (b) incorporates § 19a-582 (d) (8) is an issue of statutory interpretation. ‘‘The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.’’ (Internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364, 379–80, 54 A.3d 532 (2012). Furthermore, ‘‘[t]he legislature is always presumed to have created a harmonious and consistent body of law . . . [so that] [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.’’ (Internal quotation marks omitted.) Sokaitis v. Bakaysa, 293 Conn. 17, 23, 975 A.2d 51 (2009). Because issues of statutory construction raise questions of law, they are subject to plenary review on appeal. See, e.g., Ugrin v. Cheshire, supra, 379.

We begin with § 19a-582, subsection (a) of which sets forth a general rule broadly requiring consent for HIV related testing.¹³ Subsection (d) carves out a number of exceptions to that consent requirement, one of which, set forth in subdivision (8), is a court order issued in compliance with certain very stringent conditions.

Section 54-102a (b) in turn provides in relevant part that, ‘‘[n]otwithstanding the provisions of section 19a-582,’’ the trial court may, in specified criminal cases, order HIV testing of the defendant. Such testing is also subject to the following proviso: ‘‘The provisions of sections 19a-581 to 19a-585, inclusive, and section 19a-590, except any provision requiring the subject of any HIV-related test to provide informed consent prior to the performance of such test and any provision that would prohibit or limit the disclosure of the results of such test to the victim under this subsection, shall apply to a test ordered under this subsection and the disclosure of the results of such test.’’ (Emphasis added.) General Statutes § 54-102a (b).

The interpretive issue presented stems from the par-

ties’ dispute over the proper reading of the ‘‘[n]otwithstanding the provisions of section 19a-582’’ language contained in the first sentence of § 54-102a (b) in light of the final sentence of that subsection, providing that a range of statutes, including § 19a-582, applies to any HIV testing order issued under § 54-102a (b), ‘‘except any provision requiring the subject of an HIV-related test to provide informed consent prior to the performance of such test and any provision that would prohibit or limit the disclosure of the results of such test to the victim under this subsection . . . .’’ General Statutes § 54-102a (b). The defendant contends that the only way to reconcile these two provisions is to construe the ‘‘notwithstanding’’ clause to apply only to the consent requirement of subsection (a) of § 19a-582 and not to the various exceptions to that requirement set forth in subsection (d) of § 19a-582. Thus, in the defendant’s view, subsection (d) of that statute, which allows testing without consent only under the conditions specifically enumerated therein, including the court order provision specified in subdivision (8), is not excepted from the purview of § 54-102a (b), and, therefore, the rigorous requirements of subdivision (8) of § 19a-582 (d) must be met prior to the issuance of an order for HIV testing under § 54-102a (b). The state contends, to the contrary, that, because both the first and third sentences of § 54-102a (b) explicitly or implicitly provide that the consent requirement of § 19a-582 (a) does not apply to orders issued pursuant to § 54-102a (b), the exceptions to the consent requirement of § 19a-582 (d) also do not apply. In effect, then, the state’s interpretation treats § 54-102 (b) like the other exceptions to § 19a-582 (a) that are enumerated in § 19a-582 (d).

Although § 54-102a (b) is not a model of clarity, the interpretation advanced by the state is reasonable, whereas the defendant’s is not. First, it is difficult to understand why, if, as the defendant concedes, the consent requirement set forth in § 19a-582 (a) does not apply to persons who are subject to § 54-102a (b), the exceptions to that consent requirement set forth in § 19a-582 (d) are nevertheless applicable. We see no logical reason to separate the exceptions to the general rule from that rule itself, at least not without a clear indication from the legislature, in the statutory language or otherwise, that it intended to disconnect the one from the other. In contrast, treating § 54-102a (b) as an exception to the general consent requirement of § 19a-582 (a) affords it a meaning and significance consistent with a commonsense reading of the statutory language, considered in the broader context of the overall purpose of the statutory scheme.

Second, the defendant’s proposed construction of § 54-102a (b) renders that provision largely superfluous. Because § 19a-582 (d) preexisted the enactment of § 54-102a (b), it already provided the court with authority to order an HIV test upon proof of an imminent danger

to health and a compelling need that could not otherwise be met. In fact, the history of the legislation that is now codified as amended at § 54-102a (b); see Public Acts, Spec. Sess., May, 1994, No. 94-6, § 27 (Spec. Sess. P.A. 94-6);¹⁴ reveals that a number of persons who submitted written testimony to the Judiciary Committee in opposition to its enactment pointed out that sexual assault victims already were allowed to seek such a court order. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1994 Sess., p. 1577, written testimony of Connecticut Sexual Assault Crisis Services, Inc. (‘‘Connecticut law already allows a victim to seek a court order for the testing of an assailant and, if applicable, disclosure of the assailant’s test results’’); id., p. 1582, written testimony of Suzanne Mazzarelli, Counselor/Advocate, Susan B. Anthony Project Sexual Assault Crisis Services (‘‘Connecticut law already allows a victim to seek [a] court order for the testing of an assailant, and, if applicable, disclosure of the assailant’s test results’’); id., p. 1583, remarks of Sarah Wilson, Lobbyist, Connecticut Chapter of the National Organization for Women (‘‘[c]urrent law already allows a victim to seek a court order for the testing of an assailant and, if applicable, the disclosure of these results’’). We must presume that the legislature intended to provide something more than what the law already provided. See, e.g., American-Republican, Inc. v. Waterbury, 183 Conn. 523, 529–30, 441 A.2d 23 (1981) (‘‘[w]e cannot assume that the legislature would perform the useless act of correcting a deficiency in the statute [that] did not exist’’).

Thus, under the defendant’s reading of § 54-102a (b), a victim in a criminal case would receive no substantive benefit from the provision. Rather, its utility would be limited to affording such a victim the option of seeking an order under § 19a-582 (d) (8) in the criminal case itself—an alternative that otherwise would not be available to a victim, who, as a nonparty, would lack standing to move for a testing order in the criminal case¹⁵—instead of doing so in another pending action or in a new proceeding. This interpretation of § 54-102a (b) is manifestly implausible for a number of reasons. First, if providing an alternative forum for a victim requesting an order pursuant to § 19a-582 (d) (8) were all the legislature intended to accomplish by its enactment of § 54-102a (b), it easily could have achieved that result merely by adding a few words to § 19a-582 (d) (8) rather than by enacting an entirely new—and somewhat obtusely worded—statutory provision. And because the relevant language of § 54-102b, pertaining to HIV tests upon the motion of a victim following conviction, is materially identical to that of § 54-102a, we also would have to presume that the legislature opted to enact § 54-102b rather than tweaking the text of § 19a-582 (d) (8) slightly to reflect its purportedly modest intentions. We do not believe that the legislature would have enacted multiple

new statutory provisions—which, as we discuss more fully in part III of this opinion, were the subject of extensive legislative discussion and debate—if its intent were to accomplish only the extremely limited objective attributed to it by the defendant.

Another even more compelling reason to reject the defendant’s construction of § 54-102a (b) stems from the fundamental purpose of the provision. As we also explain in greater detail in part III of this opinion, the impetus behind both §§ 54-102a (b) and 54-102b was to avert the state’s loss of certain federal grant money, the receipt of which was conditioned on the enactment of §§ 54-102a (b) and 54-102b. Construing those provisions as advocated by the defendant—that is, requiring that the category of victims identified in those provisions also satisfy the exceedingly stringent conditions of § 19a-582 (d) (8)—would fly in the face of the decidedly pro victim policy the provisions undisputedly were intended to promote. Thus, no one in the legislature reasonably could have believed that merely enabling a victim to seek an order under § 19a-582 (d) (8) in a criminal case would have afforded the state even the remotest chance of forestalling the loss of federal funding. There is absolutely no reason, moreover, why those provisions would have prompted any legislative discussion at all, let alone the robust debate they did generate, if they were intended only to ensure that a victim could seek an order under § 19a-582 (d) (8) in a criminal case.

In fact, aspects of the relevant legislative history provide clear indication that § 54-102a (b) was not intended to incorporate the clear and imminent danger/compelling need standard of § 19a-582 (d) (8). Representative Robert Farr explained that the person who would be subject to the testing order ‘‘would have every right to refuse to take the test, every right protected right now . . . that a defendant would have on giving a blood test for other purposes . . . .’’ (Emphasis added.) 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7640. When the state seeks a search warrant for a blood sample for the purpose of providing evidence of a defendant’s guilt, it need not establish an imminent danger to the public health or a compelling need for the test that cannot be accommodated by other means. Rather, a defendant can be compelled to give a blood sample merely upon a showing of probable cause. See, e.g., State v. Grant, 286 Conn. 499, 514, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).

Representative Robert M. Ward stated during the debate that, by enacting the proposed legislation, ‘‘[a]ll we’re doing is extending the current law as to venereal diseases . . . .’’ 37 H.R. Proc., supra, p. 7642; see also id., remarks of Representative Ward (‘‘[t]here’s no real harm done to the defendant [by ordering an HIV test], and if they can be tested for venereal disease, why not also include in that test a test for . . . [HIV]?’’). As

the defendant in the present case conceded at oral argument before this court; see footnote 5 of this opinion; the preconditions for ordering an HIV related test under § 19a-582 (d) (8) do not apply to motions for examination for sexually transmitted diseases pursuant to § 54-102a (a) or, presumably, to its predecessors. Representative Ward further stated that the trial court would be able to exercise its discretion in a proceeding on a motion for an HIV test pursuant to the proposed legislation, without giving any indication that there were severe limitations, like those set forth in § 19a-582 (d) (8), on the court’s discretion to grant such a motion. See 37 H.R. Proc., supra, p. 7642; see also 37 H.R. Proc., Pt. 25, May, 1994 Spec. Sess., p. 9015, remarks of Representative Ward (testing order is ‘‘up to the judge’s discretion when he listens to both [the victim and the defendant] and presumably to the state’s attorney as well’’).

Additional considerations support the state’s construction of § 54-102a (b). As we noted previously, the pertinent language of § 54-102a (b), pertaining to HIV testing in pending cases, and of § 54-102b, pertaining to HIV testing in cases following the defendant’s conviction, is materially identical, such that § 19a-582 (d) (8) either applies to both of those provisions or to neither. Consequently, under the defendant’s statutory construction, the extremely strict, clear and imminent danger/compelling need requirement of § 19a-582 (d) (8) also applies to § 54-102b, when the defendant has been found guilty beyond a reasonable doubt of sexually assaulting the victim. It simply is impossible to believe that the legislature would have imposed that same exacting standard when the state has already established that the victim was sexually assaulted by the defendant and in all other circumstances in which someone is prompted, for whatever reason, to seek an order requiring another person to submit to an HIV test.¹⁶

Moreover, under § 54-102a (b), the court in a pending criminal case ‘‘may’’ issue a testing order upon the motion of the victim, whereas, under § 54-102b, the court ‘‘shall’’ issue the requested order following the defendant’s conviction. This permissive/mandatory distinction makes perfect sense if those provisions are construed as the state contends: the court may, in the exercise of its discretion, order the nonconsensual HIV testing of a defendant in a pending criminal case, and must issue such an order upon a finding of the defendant’s guilt beyond a reasonable doubt. The distinction makes little or no sense, however, if both §§ 54-102a (b) and 54-102b are construed to require a victim to satisfy the stringent requirements of § 19a-582 (d) (8),¹⁷ and we see no reason why the legislature would have sought to achieve such a bizarre result.¹⁸

For all the foregoing reasons, we agree with the

state’s contention that, as long as the conditions set forth in § 54-102a (b) are satisfied, that is, the defendant has been charged with one of the offenses enumerated in the statute, the alleged offense involved a completed sexual act, as defined in General Statutes § 54-102b (c), and the criminal case is pending, the trial court acts within its discretion under the applicable statutory language when it grants a motion for HIV testing.¹⁹ In other words, the legislature did not intend for the requirements of § 19a-582 (d) (8) to apply to an order for testing under § 54-102a (b).²⁰ Because there is no dispute that those conditions have been met in the present case, the trial court did not abuse the discretion conferred by the statute in granting the motions for testing. We turn, therefore, to the issue of whether those statutory requirements are sufficient to satisfy the protections of the state constitution.

III

The defendant claims that subsections (a) and (b) of § 54-102a violate article first, § 7, of the state constitution insofar as they purport to authorize the trial court to order an examination for a sexually transmitted disease or testing for HIV without probable cause to believe that a defendant is suffering from such a disease or virus, without a showing that an examination or testing will assist the state in the criminal case, and without any evidence that it will advance the health interests of the victim or the public.²¹ We conclude that, under article first, § 7, the trial court is required to make a finding that an examination or testing pursuant to § 54-102a (a) and (b), respectively, would provide useful, practical information to a victim that cannot reasonably be obtained in another manner before it may order such an examination or testing. We reject, however, the defendant’s contention that the court must find probable cause to believe that the defendant has a sexually transmitted disease or HIV before an order under § 54-102a may be issued.

‘‘Determining the constitutionality of a statute presents a question of law over which our review is plenary. . . . It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . The court will indulge in every presumption in favor of the statute’s constitutionality . . . . Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.’’ (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 405, 119 A.3d 462 (2015).

To provide context for our state constitutional analysis, we begin with a review of the general principles

governing warrantless searches. We note, as a threshold matter, that it is firmly established that ‘‘[a] blood test . . . constitutes a search and seizure under the federal and state constitutions.’’ State v. Grotton, supra, 180 Conn. 293. Accordingly, the state concedes that, as a general rule, it cannot constitutionally compel an individual to submit to a blood test in the absence of probable cause and a warrant.²² See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (‘‘[i]t is well settled under the [f]ourth and [f]ourteenth [a]mendments that a search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and [well delineated] exceptions’’ (internal quotation marks omitted)).

There are exceptional circumstances, however, in which the government may conduct a search without a warrant, without probable cause and, indeed, without any showing of individualized suspicion. See, e.g., Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 624, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (in exceptional circumstances, ‘‘a search may be reasonable despite the absence of [individualized] suspicion’’). Specifically, ‘‘[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the [United States Supreme Court] has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. . . . Those circumstances diminish the need for a warrant, either because the public interest is such that neither a warrant nor probable cause is required . . . or because an individual is already on notice, for instance because of his employment . . . or [because of] the conditions of his release from government custody . . . that some reasonable police intrusion on his privacy is to be expected.’’ (Citations omitted; internal quotation marks omitted.) Maryland v. King, 569 U.S. 435, 447, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013).

Even in such cases, however, a search ‘‘must be reasonable in its scope and manner of execution.’’ Id., 448. ‘‘To say that no warrant is required is merely to acknowledge that rather than employing a per se rule of unreasonableness, we balance the [privacy related] and [law enforcement related] concerns to determine if the intrusion was reasonable. . . . This application of traditional standards of reasonableness requires a court to weigh the promotion of legitimate governmental interests against the degree to which [the search] intrudes [on] an individual’s privacy.’’ (Citation omitted; internal quotation marks omitted.) Id.; see also Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. 624.

With this general background in mind, we turn to the defendant’s claim that, to the extent that § 54-102a (a) and (b) authorizes the trial court to issue an order

for an examination or testing without a showing of probable cause to believe that such examination or testing will advance the health interests of the victim or the public, the statute runs afoul of article first, § 7, of the state constitution. The state contends that, to the contrary, the statute passes constitutional muster because it falls within the ‘‘special needs’’ exception to the probable cause requirement.²³

‘‘[I]n determining the contours of the protections provided by our state constitution, we employ a multifactor approach that we first adopted in [State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992)]. The factors that we consider are (1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological norms [otherwise described as public policies]. . . . We have noted, however, that these factors may be inextricably interwoven, and not every [such] factor is relevant in all cases.’’ (Internal quotation marks omitted.) State v. Kono, 324 Conn. 80, 92, 152 A.3d 1 (2016).

We begin by addressing the first and second prongs of Geisler. With respect to the text of article first, § 7, this court previously has held that, because it is similar to the text of the fourth amendment, that consideration alone provides no reason to depart from the interpretation of the federal constitution by the United States Supreme Court. See, e.g., State v. Miller, 227 Conn. 363, 381, 630 A.2d 1315 (1993). Despite the linguistic similarity, however, this court has held in a variety of contexts that the state constitution provides greater protection against governmental searches and seizures than does the federal constitution. See id., 382 (‘‘article first, § 7, provides broader protection than does the fourth amendment against warrantless searches of automobiles that have been impounded at police stations, even though probable cause exists’’); State v. Oquendo, 223 Conn. 635, 652, 653, 613 A.2d 1300 (1992) (under state constitution, unlike federal constitution, ‘‘what starts out as a consensual encounter becomes a seizure if, on the basis of a show of authority by the police officer, a reasonable person in the defendant’s position would have believed that he was not free to leave’’); State v. Geisler, supra, 222 Conn. 690 (in contrast to exclusionary rule under fourth amendment, ‘‘the exclusionary rule under article first, § 7, requires that evidence derived from an unlawful warrantless entry into the home be excluded unless the taint of the illegal entry is attenuated by the passage of time or intervening circumstances’’); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (unlike exclusionary rule under fourth amendment, ‘‘a good faith exception to the exclusionary rule does not exist under [article first, § 7, of

the state constitution’’); State v. Dukes, 209 Conn. 98, 120, 547 A.2d 10 (1988) (‘‘to the extent that [United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)] allows unlimited searches in contexts that extend beyond full custodial arrests [under the fourth amendment], we disavow its holding concerning the level of protection to which individuals are entitled against unreasonable searches and seizures under article first, § 7, of the Connecticut constitution’’). Although none of these cases involves the specific issue presented by this appeal, we agree with the defendant that they generally support the proposition that article first, § 7, is more protective of the privacy rights of our citizenry than the fourth amendment.

We next consider Geisler’s third and fourth prongs, persuasive state and federal precedent. As we previously discussed, the general rule applied by both state and federal courts is that probable cause and a warrant are required for a search in the absence of exceptional circumstances in which the government’s ‘‘ ‘special law enforcement needs’ ’’ outweigh the intrusion on the individual’s constitutional interests. Maryland v. King, supra, 569 U.S. 447. Although the United States Supreme Court has not addressed the precise question that is the subject of this appeal, a sampling of the court’s cases applying the special needs exception provides guidance regarding the nature and scope of the special needs doctrine and its potential applicability to examinations and testing under § 54-102a.

In Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. 602, the court considered the constitutionality of federal regulations requiring railroad employees who are involved in certain accidents to submit to blood and urine tests for alcohol and drugs. Id., 606. The regulations also authorized breath and urine tests to be administered to employees who violate certain safety rules. Id. The court concluded that the government’s interest in promulgating those regulations fell into the special needs exception to the requirement of probable cause and a warrant because (1) the ‘‘covered employees [were] engaged in [safety sensitive] tasks’’; id., 620; and were required to ‘‘discharge duties fraught with such risks of injury to others that even a momentary lapse of attention [could] have disastrous consequences’’; id., 628; (2) ‘‘ ‘the burden of obtaining a warrant [was] likely to frustrate the governmental purpose behind the search’ ’’ because ‘‘the delay necessary to procure a warrant . . . [could] result in the destruction of valuable evidence,’’ namely, evidence of the level of alcohol and drugs in the employee’s bloodstream at the time of the accident; id., 623; (3) testing would deter employees from using drugs and alcohol while on duty because they could not predict the timing of the tests; id., 629; and (4) ‘‘[t]he testing procedures . . . help railroads obtain invaluable information about the causes of major accidents . . . and . . . take

appropriate measures to safeguard the general public’’ from recurrences. (Citation omitted.) Id., 630. The court also concluded that the special needs of the government outweighed the employees’ privacy interests because (1) the intrusions occasioned by the blood, breath and urine tests were not significant; id., 624–26; and (2) ‘‘the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees.’’ Id., 627. Accordingly, the court concluded that the regulations survived fourth amendment scrutiny. Id., 633.

In a second decision issued on the same day as Skinner, the United States Supreme Court undertook to determine the constitutionality of a drug testing program that required individuals to submit to drug tests as a condition for placement in any position in the United States Customs Service that involved drug interdiction or the carrying of firearms. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 660–61, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The court determined that the government had a substantial interest in ensuring that employees were physically fit and that they not be tempted by bribes from drug traffickers or by access to the large amounts of contraband seized by the Customs Service. Id., 669–70. The court further explained that the government had an interest in testing employees who are armed because of the risk of ‘‘injury to others that even a momentary lapse of attention’’ could create. (Internal quotation marks omitted.) Id., 670. With respect to the employees’ privacy interests, the court observed that ‘‘employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty . . . have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test.’’ Id., 672. The court ultimately concluded that the government’s compelling interests in safeguarding the border and public safety outweighed the employees’ privacy interests, and, therefore, the drug testing program was reasonable under the fourth amendment. Id., 677.²⁴

Thereafter, in Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997), the court considered the constitutionality of a Georgia statute requiring candidates for certain state offices to certify that they had taken a drug test and that the test result was negative. Id., 308. The court observed that its precedents, including Skinner and Von Raab, ‘‘establish that the proffered special need for drug testing must be substantial—important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the [f]ourth [a]mendment’s normal requirement of individualized suspicion.’’ Id., 318. The court further observed that Georgia had produced no evidence that it had a particular problem with state officeholders

abusing drugs or that the testing scheme, which would allow candidates for office to abstain from drug use before testing, would deter candidates who use drugs from seeking office. Id., 319–20. The court concluded that, because ‘‘public safety [was] not genuinely in jeopardy, the [f]ourth [a]mendment preclude[d] the suspicionless search, no matter how conveniently arranged.’’ Id., 323.

Finally, and most recently, in Maryland v. King, supra, 569 U.S. 435, the United States Supreme Court considered whether a Maryland statute authorizing the taking of a DNA sample as part of a routine booking procedure for serious offenses violated the fourth amendment. Id., 440. The court concluded that the state had a significant interest in knowing the identity and criminal history of an arrestee that the state has taken into custody in order to assess the danger that the arrestee poses to the staff of the facility where the arrestee is detained, other detainees and the public. Id., 449–56. The court further concluded that ‘‘[t]he special needs cases, though in full accord with the [conclusion that the DNA testing procedure is constitutional], do not have a direct bearing on the issues presented in [the] case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy.’’ Id., 463. In addition, the DNA test was not intended to reveal any private medical information, which ‘‘would present additional privacy concerns . . . .’’ Id., 465. Accordingly, the court rejected the fourth amendment challenge to the statute.²⁵ Id., 465–66.

We glean the following general principles from these cases. First, under the special needs doctrine, the government interest that is furthered by a suspicionless search must be ‘‘substantial . . . .’’ Chandler v. Miller, supra, 520 U.S. 318; see id. (‘‘the proffered special need . . . must be substantial—important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the [f]ourth [a]mendment’s normal requirement of individualized suspicion’’); see also Maryland v. King, supra, 569 U.S. 448 (characterizing government interest in requiring DNA test as part of routine booking procedure as ‘‘[u]rgent’’); National Treasury Employees Union v. Von Raab, supra, 489 U.S. 670 (suspicionless drug testing was permissible under fourth amendment because government had ‘‘a compelling interest in ensuring that [frontline] interdiction personnel are physically fit . . . and have unimpeachable integrity and judgment’’); Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. 624 (suspicionless search may be justified when government interest is ‘‘important’’). Second, the need for the search cannot be established by conclusory assertions of need or the desire to send a symbolic message but, rather, must be supported by evidence in the record. See Chandler v. Miller, supra, 321, 322 (suspicionless drug testing

of candidates for state office in Georgia was not reasonable when government presented ‘‘no evidence of a drug problem among the [s]tate’s elected officials’’ and the need established was merely ‘‘symbolic’’). Third, ‘‘the government’s interest in dispensing with the warrant requirement is at its strongest when . . . the burden of obtaining a warrant [would] likely . . . frustrate [the underlying] governmental purpose . . . .’’ (Internal quotation marks omitted.) Skinner v. Railway Labor Executives’ Assn., supra, 623; see also Chandler v. Miller, supra, 314 (suspicionless search may be reasonable when ‘‘an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion’’ (internal quotation marks omitted)). Fourth, the government’s interest must outweigh the privacy interests of the subject of the search. See National Treasury Employees Union v. Von Raab, supra, 665 (‘‘it is necessary to balance the individual’s privacy expectations against the [g]overnment’s interests’’); see also Maryland v. King, supra, 448 (court is required ‘‘to weigh the promotion of legitimate governmental interests against the degree to which [the search] intrudes [on] an individual’s privacy’’ (internal quotation marks omitted)).

As we indicated, the United States Supreme Court has not yet had occasion to apply these principles to a statute that authorizes HIV testing of persons charged with certain crimes.²⁶ Several other courts, however, have had the opportunity to do so, and they have uniformly concluded that such statutes do not violate constitutionally protected privacy rights. See, e.g., United States v. Ward, 131 F.3d 335, 342 (3d Cir. 1997) (federal statute authorizing victims to request court order for HIV testing of defendants charged with certain offenses was constitutional); Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 1260, 1285, 267 Cal. Rptr. 666 (1990) (California statute requiring HIV testing of defendants charged with interfering with peace officer by biting officer was constitutional under federal and California constitutions).²⁷ A closer examination of these cases reveals that they do not support court-ordered testing under the present circumstances. First, the cases involving HIV testing of defendants who have been convicted or incarcerated are distinguishable from the present case. Although an individual who has been charged with a crime has, in certain respects, diminished expectations of privacy; see, e.g., Maryland v. King, supra, 569 U.S. 448 (holding that warrantless DNA test of defendant charged with serious offense was constitutional because, among other reasons, ‘‘[t]he arrestee is already in valid police custody for a serious offense supported by probable cause’’); those privacy expectations are less diminished than those of a defendant who has been convicted. See, e.g., Harris v. Thigpen, 941 F.2d 1495, 1514 (11th Cir. 1991) (‘‘prisoners’ constitutional rights are necessarily subject to substantial

restrictions and limitations in order for correctional officials to achieve legitimate correctional goals and [to] maintain institutional security’’); Dunn v. White, 880 F.2d 1188, 1194 (10th Cir. 1989) (defendant’s ‘‘incarceration changes the relative weight accorded [to the interests of the government and the defendant]’’), cert. denied, 493 U.S. 1059, 110 S. Ct. 871, 107 L. Ed. 2d 954 (1990); People v. Adams, 149 Ill. 2d 331, 348, 59 N.E.2d 574 (1992) (Illinois statute was constitutional because it ‘‘operate[d] only at that point in the proceedings when a defendant no longer enjoys a presumption of innocence but instead stands at the threshold of incarceration, probation, or other significant curtailment of personal freedom’’).

Although another case relied on by state, United States v. Ward, supra, 131 F.3d 335, does involve HIV testing, it is distinguishable because, in Ward, the federal statute authorizing HIV testing for defendants charged with certain crimes required victims seeking such testing to demonstrate that ‘‘the test would provide information necessary for [the] health of the victim of the alleged offense . . . .’’ (Internal quotation marks omitted.) Id., 339 n.2, quoting 42 U.S.C. § 14011 (b) (2) (1994). The very question before us in the present case is whether the state constitution requires such a finding before HIV testing may be ordered pursuant to § 54-102a (b).

Finally, for the following reasons, we are not persuaded by the reasoning of cases holding that the state has a compelling interest in protecting the health interests of victims that, under all circumstances, justifies suspicionless HIV testing of a defendant charged with certain sexual offenses.²⁸ In State in the Interest of J. G., 151 N.J. 565, 701 A.2d 1260 (1997), the court noted that the accused juveniles had presented undisputed and unanimous expert testimony that ‘‘there would be no medical benefit to the victim, in either treatment or diagnosis, from testing the accused or convicted offender. In [the] view [of the expert witnesses presented by the juveniles], the only appropriate course is for the victim to undergo HIV testing.’’ Id., 583. The court then observed that there was authority for the proposition that, during the period immediately following the victim’s potential exposure to HIV, testing of the defendant could be useful in determining whether the victim should begin or continue prophylactic treatment; id., 584–85; and could provide psychological benefits to the victim. See id., 586 (‘‘[i]n those cases of sexual assault [in which] the accused is apprehended relatively soon after the assault, involuntary testing, with appropriate due process and confidentiality protections for the accused, could mitigate one of the primary ongoing harms of the assault, the survivor’s fear and uncertainty about the risk of contracting HIV’’ (emphasis added; internal quotation marks omitted)). The court ultimately concluded that the New Jersey HIV testing

statute was reasonable, and therefore constitutional, as applied to the accused juveniles, despite the fact that they had been charged in 1994 and the case was not decided until 1997.²⁹ See id., 571, 588–90, 593–94. In our view, however, the fact that testing the victim does not yield useful medical information during the several months immediately following potential exposure establishes only that there is medical utility in testing the defendant for HIV during that period.³⁰

Indeed, a number of the courts that have upheld the constitutionality of nonconsensual HIV testing statutes nevertheless have expressly recognized that, when HIV testing of the victim would yield useful information, testing the defendant has little value. For example, although the court in Johnetta J. v. Municipal Court, supra, 218 Cal. App. 3d 1285, concluded that the California statute authorizing HIV testing was constitutional, the court questioned the wisdom of the statute in light of expert testimony ‘‘that the only really effective means of determining HIV infection is for the [potentially infected] concerned public safety employees to undergo their own tests.’’ Id., 1285. Similarly, even though the court in State v. Handy, 191 Vt. 311, 44 A.3d 776 (2012), determined that the Vermont statute at issue, which required certain convicted defendants to submit to HIV testing, was reasonable; see id., 324; it observed that, when testing is not done during the ‘‘latency period during which the victim’s own testing might not yet reveal the presence of the virus . . . neither a negative nor a positive result from the offender’s testing would appear to have any value for the victim. Moreover, any positive test result from the offender would have limited value for the additional reasons that the tests do not indicate when the virus was [acquired] and that the chances of passing the virus . . . to a sexual assault victim are very small. Indeed, even those who testified in support of testing offenders acknowledged that such testing provided little or no medically useful information for victims of sexual crimes.’’ Id., 322; see also id., 321–22 (physician testified before legislative committee considering mandatory HIV testing legislation that ‘‘testing sex offenders following conviction offered no medical benefit for victims because health care issues need to be addressed as soon after the sexual assault as possible and, given the normal lag time between the commission of the crime and conviction, the victims will have or should have already been tested themselves for sexually transmitted diseases’’); cf. People v. J. G., 171 Misc. 2d 440, 450, 655 N.Y.S.2d 783 (1996) (court tended to agree with expert who testified that, when more than two and one-half years have passed since assault, ‘‘the only reliable test is one [that] would be performed on the victim herself and that a test on the defendant at such a late date does not have any medical utility’’); State v. Handy, supra, 323 (‘‘[S]exual assault victims do not necessarily consider the issue of testing

offenders in a logical way as perceived by nonvictims. While recognizing that testing victims is the only way to determine definitively whether they have contracted an infectious sexual disease, and in particular [HIV] . . . victims want the peace of mind that would result from also testing the perpetrator and . . . they feel further violated if their attacker[s] [refuse] to submit to the testing of bodily fluids forced [on] them during a sexual assault.’’). In light of the questionable benefits of testing a defendant for HIV when testing the victim will yield reliable results, we are not persuaded by these cases that the special needs doctrine justifies suspicionless testing during that period.

The sixth prong of Geisler, contemporary understandings of applicable economic and sociological norms and relevant public policies in this state, bolsters this conclusion. Section 54-102a (b) was the codification of Spec. Sess. P.A. 94-6, § 27. The bill as originally proposed contained the following provision: ‘‘It is the policy of the state of Connecticut that testing for HIV or AIDS status shall be the voluntary act of the person on whom the test is performed, and that the results of such tests shall be disclosed only to the subject of the test. The preferred procedure for determining HIV/AIDS status of sexual assault victims is that the victim should be tested. This act constitutes an exception to that policy for the sole purpose of complying with the requirements of the federal Drug Control and System Improvement Formula Grant Program . . . .’’³¹ Substitute House Bill No. 5790, 1994 Sess., § 1. Representative Ellen Scalettar stated that this provision expressed the current policy of the state; 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7630; and that it was intended to ‘‘clarif[y] that no challenge can be brought to the current practices based [on] the new language in this statute which seems to express a contrary policy . . . .’’ Id., p. 7637. Representative Dale W. Radcliffe expressed concern, however, that, if state policy changed in the future, the provision would make it difficult to implement the new policy. Id., pp. 7630–33; see also id., p. 7637, remarks of Representative Radcliffe (policy provision might ‘‘tie the hands of those who have to implement HIV testing . . . who may wish to respond to conditions that we may not be able to foresee at this time’’). Representative Radcliffe’s view ultimately prevailed, and the provision was deleted. See House Amendment Schedule B to Substitute House Bill No. 5790, 1994 Sess. (passed May 4, 1994); 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7638.

As is clear from the debate on the proposed legislation, however, the policy set forth in the deleted provision reflected the current views of most legislators, at least with respect to testing the defendant during the period when testing the victim would provide useful results. Representative Norma Gyle stated that ‘‘none of us wanted this specific policy to allow victims to ask whether . . . they could have their assailant tested for

HIV because there is a window that says that if someone is HIV positive, they may not test positive for quite some time and therefore the victim could get a false sense of security. . . . That’s why we were reluctant to put this legislation into place.’’ 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7626. Arguing in favor of the provision authorizing HIV testing for defendants who have been charged with certain offenses, Representative Farr stated that ‘‘[it] doesn’t do an awful lot of good for the victim to find out a year after the assault that the individual had AIDS. Chances are by then that the victim is going to know whether [HIV] has been transmitted.’’ Id., pp. 7639–40. Representative Richard D. Tulisano opposed the proposed provision on the ground that ‘‘the mere fact [that] a negative or positive comes up on the offender is no indication of whether . . . the victim will have a negative or a positive reading, and even if in fact there is a negative reading after [there is a] positive on the offender . . . does not mean because of the latency of the disease, it could not occur again in the future, and since our issues are to protect the victims of sexual assault the best we can, whatever resources we have ought to be . . . given to them so they can be retested.’’ Id., pp. 7648–49. Representative Lenny T. Winkler opposed the provision because a negative test might give a ‘‘false sense of security . . . .’’ Id., p. 7650; see also id., p. 7664, remarks of Representative Scalettar (‘‘the information that would be gained from testing upon conviction is not deemed to be information that would be helpful to the victim of the crime’’); id., p. 7668, remarks of Representative Andrea L. Stillman (opposing proposed legislation because it could give victims false sense of security).

In addition, several groups providing services and support to victims of sexual assault opposed the proposed legislation mandating HIV testing of convicted offenders on the ground that testing the defendant generally provides little benefit to the victim. The Connecticut Sexual Assault Crisis Services, Inc., submitted documentation opposing the proposed legislation because ‘‘[i]t [could] take up to two years for an offender to be convicted. A victim who is concerned about the possibility of HIV transmission needs information about her HIV status as quickly as possible and should be tested herself. Our concern is that the victim might not take necessary safety precautions in the interim between the assault and the testing of the convicted offender.’’ Conn. Joint Standing Committee Hearings, supra, p. 1577. Connecticut Sexual Assault Crisis Services, Inc., submitted a memorandum opposing the proposed legislation ‘‘because quite simply it does not help victims of sexual assault, and because it misleads victims into believing that testing offenders will give them useful information. Having been misled, victims may not institute safe sex practices and may unknowingly make decisions [that] are deleterious to their health. If

the goal of HIV testing is to give medical information or psychological reassurance to the survivor that she was not infected, then the survivor, not the offender, should be offered testing.’’ Id., p. 1578. The Department of Public Health and Addiction Services submitted a memorandum providing that ‘‘[l]egislators should be aware that this bill will not provide much help to women who are sexually assaulted. Because of the frequently long delay between the sexual assault and the [conviction] of the offender, a woman will be able to get her own test result before that of the perpetrator. In any case, the victim will need to [be] counseled and tested for HIV and other [sexually transmitted diseases] to determine whether . . . transmission occurred and to obtain medical care. This is because a negative test [of] the perpetrator cannot ensure that he was not HIV infected, since it generally takes about six months after a [newly acquired] infection for the test result to read positive. In addition, a positive test result does not mean that the woman was infected. She still must be tested herself.’’ Id., p. 1581. The Susan B. Anthony Project Sexual Assault Crisis Services opposed the proposed legislation because testing the defendant long after a sexual assault, by which time ‘‘[t]he victim should have . . . received information on anonymous testing, been tested (at least once) and practiced safety precautions with partners and family until two HIV tests show negative results,’’ is ‘‘pointless.’’ Id., p. 1582. In addition, a defendant’s positive test result ‘‘could lead to unnecessary anxiety on the part of the victim (the chance of contracting HIV from one sexual contact is very low), as well as wrong assumptions that the victim is also HIV positive . . . .’’ Id. The Connecticut Chapter of the National Organization for Women opposed the legislation because, ‘‘[i]f a victim is concerned with the possibilities [of] HIV infection she should not wait until the offender is convicted . . . but seek confidential testing immediately and within [six to eight] months after the assault.’’ Id., p. 1583.

Indeed, the legislative history of Spec. Sess. P.A. 94-6, § 27, reveals that the primary purpose of the legislation authorizing HIV testing of defendants charged or convicted of certain sexual offenses was not to provide useful information to the victims of sexual assault, but to ensure that the state would not lose funding under the federal Drug Control and System Improvement Formula Grant Program. See 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7626, remarks of Representative Gyle (reason that legislature wanted to pass legislation was to satisfy requirements for receiving federal funding); see also id., p. 7622, remarks of Representative Scalettar (‘‘the legislation was not proposed due to . . . a change in the policy of the state, but only to allow us to recapture those federal funds’’); id., p. 7639, remarks of Representative Farr (‘‘the underlying bill is required by federal law’’); id., p. 7647, remarks of Representative Gyle

(‘‘[w]e’re [enacting the legislation] because the federal government is blackmailing us into doing it’’); id., pp. 7664–65, remarks of Representative Scalettar (indicating that proposed legislation would not have been introduced but for federal funding issue because testing is not beneficial to victims); id., p. 7665, remarks of Representative Scalettar (avoiding loss of federal funding ‘‘is the sole reason for the bill’’); Conn. Joint Standing Committee Hearings, supra, p. 1579, written testimony of Thomas A. Siconolfi, Director, Policy Development and Planning Division of Office of Policy and Management (enacting legislation ‘‘would ensure [s]tate compliance with a federal mandate concerning the [federal] Drug Control and System Improvement . . . block grant and prevent the loss of 10 percent of Connecticut’s share of the grant in the next fiscal year’’); id., p. 1581, written testimony of Department of Public Health and Addiction Services (giving ‘‘reluctant support’’ to proposed legislation, even though it would provide little benefit to victims, because, ‘‘[i]f it is not passed, Connecticut will lose criminal enforcement funds’’).

We agree with the Supreme Court of Vermont that, ‘‘[i]f retaining federal funding were the sole governmental interest supporting the challenged portion of the [Vermont] statute, then the constitutionality of the law would be suspect because there would be no nexus between the law’s intrusion on even the diminished privacy interest . . . and the information obtained from that intrusion.’’ State v. Handy, supra, 191 Vt. 322–23. The state’s interest in obtaining funding, standing alone and in the absence of any important special need for specific information, cannot trump an individual’s constitutional right to be free from suspicionless searches. To put it more directly, a state cannot lawfully be induced by a payment from the federal government to engage in conduct that violates the constitutional rights of its citizenry. We recognize, however, that a number of legislators believed that, at least within the time period immediately following a sexual assault, when testing the victim would not yield any useful information, testing the defendant could provide a practical benefit to the victim. See 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7651, remarks of Representative Farr (‘‘[T]he purpose of the test is to give some peace of mind to women who are rape victims. . . . I presume that the overwhelming majority of accused in rape cases do not have [HIV] and that when a woman wants to know whether . . . the accused who had raped her had [HIV], [and] that if she finds out that . . . he doesn’t test positive for [HIV], she may have some peace of mind. Admittedly, it isn’t perfect because that individual may have [HIV] that . . . doesn’t yet show up on testing, but the whole purpose of the amendment is quite simple. It’s to give some peace of mind to some [victims].’’); id., p. 7652, remarks of Representative Robert R. Simmons (‘‘the main purpose . . . of this amend-

ment [allowing the testing of a defendant who has been charged] is to provide some comfort or some protection to the victim’’); id., p. 7659, remarks of Representative Ward (arguing that victims are entitled to information about health status of persons who assaulted them and are capable of making intelligent decisions regarding that information); id., p. 7670, remarks of Representative Alan M. Kyle (arguing that legislation would operate to ‘‘dispel one of the very major fears that would be a portion of that psychological trauma [namely] whether . . . at some time after the incubation period of this very horrible disease, [the victim] may wind up carrying [HIV]’’); id., p. 7672, remarks of Representative Kyle (testing may relieve victim of fear, even if results are not definitive).

On the basis of the foregoing, we conclude that the granting of a motion for HIV testing pursuant to § 54-102a (b) based solely on a finding that a defendant has been charged with an offense enumerated in a statute that proscribes a sexual act violates the defendant’s right to be free from unreasonable searches under article first, § 7, of the Connecticut constitution. The legislative history of § 54-102a (b) and cases from other jurisdictions considering the constitutionality of similar statutes make it clear that, in many cases, such testing would provide no real medical benefit to the victim. When that is the case, the proffered special need is not sufficient to override a defendant’s recognized privacy interest. See, e.g., Chandler v. Miller, supra, 520 U.S. 318. Moreover, requiring a showing of the practical usefulness of HIV testing to the victim at a hearing on the motion for such testing would in no way frustrate the legitimate purpose of the statute. See, e.g., Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. 619. Indeed, doing so would advance the state’s public policy that HIV testing should be consensual unless it is necessary to protect the health of another. See General Statutes § 19a-582 (d) (8). Accordingly, we conclude that, in cases in which testing would provide no real practical benefit to the victim, the state’s interest in requiring testing does not outweigh the defendant’s reasonable privacy expectations. Cf. National Treasury Employees Union v. Von Raab, supra, 489 U.S. 665–66.

We also conclude, therefore, that we must place an interpretive gloss on § 54-102a (b) to render it compatible with the requirements of article first, § 7. See, e.g., State v. Indrisano, 228 Conn. 795, 805–806, 640 A.2d 986 (1994) (‘‘[W]e may . . . add [an] interpretive gloss to a challenged statute in order to render it constitutional. In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.’’ (Internal quotation marks omitted.)). Specifically, we hold that, before ordering testing pursuant to § 54-102a (b), a court must first make a finding that such testing would provide useful, practical information

to a victim that cannot reasonably be obtained otherwise. In making this determination, the court ordinarily may presume that testing during the six month period immediately following the alleged assault, when testing the victim for HIV might not yield useful information, would be of practical benefit to the victim.

In reaching this conclusion, we are mindful that, even after the six month period immediately following the assault has passed, a defendant’s negative test result could establish that the defendant has not exposed the victim to HIV. At that point, however, the defendant’s privacy interest ordinarily would outweigh any benefit to the victim because the burden of self-testing on the victim generally would be slight, and, unlike the information obtained from testing the defendant, the information obtained from testing the victim would be definitive. If the victim can establish, however, that, for some reason, the burden of undergoing a test would not be slight and, for example, that a negative test result from the defendant would be definitive of the victim’s HIV status because the defendant was the exclusive source of any potential infection, a testing order could be warranted. The court also should consider other relevant facts and circumstances in determining whether testing would provide useful, practical information to the victim after the six month period immediately following the assault has expired.³²

The foregoing reasoning applies equally to an order for an examination for sexually transmitted diseases pursuant to § 54-102a (a), and, consequently, the same showing that must be made prior to the issuance of an order for testing under § 54-102a (b) also must be made prior to the issuance of an order for an examination under § 54-102a (a). Because of the differences between sexually transmitted diseases and HIV, however, including the fact § 54-102a (a) provides for an examination and § 54-102a (b) provides for testing, we acknowledge that different considerations may well be relevant in determining whether that standard has been met under the two statutory subsections.

We therefore conclude that, in the absence of any evidence that an examination under § 54-102a (a) would provide a real practical benefit to the victim that cannot reasonably be obtained in another manner, an order for such an examination would also violate article first, § 7. Thus, a person seeking an order pursuant to § 54-102a (a) must make a showing that an examination would provide useful, practical information to the victim that cannot reasonably be obtained in another manner. Because the record before us contains no information regarding the incubation periods for sexually transmitted diseases or other information that might assist us in providing guidance as to when an examination under § 54-102a (a) would be of practical benefit, we leave the determination as to whether an order

for such an examination is warranted to the informed discretion of the trial court.³³

The state contends that § 54-102a (b) as written satisfies the state constitution because ‘‘the government has a compelling interest in testing in furtherance of protecting the health and welfare of its citizens by stemming the spread of HIV/AIDS. Identifying infected individuals allows them to receive treatment for their individual health needs and education for changing behaviors and for preventing infection of others. This identification also permits public health officials, when necessary, to inform partners of the tested individual who, in turn, can undergo testing and, if necessary, treatment.’’ There is no evidence in the record, however, that individuals accused of sexual assault are at greater risk of carrying HIV than members of the general public. Thus, even if we were to assume that the statute was intended to protect not only victims, but also the defendant and the public at large, there is no connection between the diminished privacy expectations of a defendant charged with sexual assault, which derive from the defendant’s alleged conduct toward the victim, and the state’s desire for information about the defendant’s HIV status in order to protect the defendant himself or the public. See, e.g., State v. Handy, supra, 191 Vt. 322–23 (Vermont’s HIV testing statute would be unconstitutional if there were ‘‘no nexus between the law’s intrusion on even the diminished privacy interest [of the defendant] and the information obtained from that intrusion’’); In re Juveniles A, B, C, D, E, 121 Wn. 2d 80, 104, 105–106, 847 P.2d 455 (1993) (Utter, J., concurring in part, dissenting in part) (arguing that state’s interest in combating spread of AIDS did not justify testing of convicted defendant because same rationale would apply to ‘‘any individual whether charged and convicted or not’’ and that ‘‘[t]he [s]tate’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 offender’’ (emphasis in original)); see also Chandler v. Miller, supra, 520 U.S. 321, 322 (suspicionless drug testing of candidates for state office was not reasonable when Georgia asserted ‘‘no evidence of a drug problem among [its] elected officials’’ and need established was merely ‘‘symbolic’’). In other words, when a defendant has been charged with forcibly exposing a victim to his bodily fluids against the victim’s will, he cannot reasonably complain if the victim seeks private information about any diseases to which he or she may have been involuntarily exposed, even if the risk that the defendant is infected is no greater than the risk for a member of the general public. We can perceive no reason, however, why a defendant should have a diminished expectation of privacy with respect to information required to protect his own health or the health of individuals who have consensually engaged in intimate contact with him such as to

warrant suspicionless testing. If those individuals have reason to believe that the defendant exposed them to HIV and self-testing would not yield useful results, they may seek a testing order pursuant to § 19a-582 (d) (8). Accordingly, we reject this claim.

In summary, we conclude that § 54-102a (b) does not incorporate the standard set forth in § 19a-582 (d) (8). We also conclude, however, that, under article first, § 7, of the state constitution, the trial court was required to make a finding that an examination or testing or both would provide useful, practical information to the victim that could not reasonably be obtained otherwise, before ordering any such examination or testing in accordance with § 54-102a (a) and (b), respectively. It is clear that the trial court did not apply this standard. Because the state and the victims were not on notice that they were required to satisfy this requirement, the case must be remanded for a new hearing on their motions under § 54-102a.

The trial court’s order directing the defendant to submit to an examination for sexually transmitted diseases pursuant to § 54-102 (a) and for HIV testing pursuant to § 54-102 (b) is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

In this opinion ROBINSON, C. J., and MULLINS, KAHN and VERTEFEUILLE, Js., concurred.

* The listing of justices reflects their seniority status on this court as of the date of oral argument.

** July 14, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

1 This charge was based on conduct that allegedly had occurred between 2012 and 2016. Because the statutory subsection under which the defendant was charged, namely, subsection (c) of § 53a-83, did not go into effect until 2013; see Public Acts 2013, No. 13-166, § 3, we use the version of § 53a-83 that first contained that statutory subsection.

2 The conspiracy to commit trafficking in persons charge also was based on conduct that allegedly had occurred between 2012 and 2016. In the interest of simplicity, we use the statutory revision of § 53a-192a that was in effect at the beginning of that four year period.

3 General Statutes § 54-102a provides in relevant part: ‘‘(a) The court before which is pending any case involving a violation of any provision of sections 53a-65 to 53a-89, inclusive, may, before final disposition of such case, order the examination of the accused person . . . to determine whether or not the accused person . . . is suffering from any sexually transmitted disease . . . .

‘‘(b) Notwithstanding the provisions of section 19a-582, the court before which is pending any case involving a violation of section 53-21 or any provision of sections 53a-65 to 53a-89, inclusive, that involved a sexual act, as defined in section 54-102b, may, before final disposition of such case, order the testing of the accused person . . . for the presence of the etiologic agent for acquired immune deficiency syndrome or human immunodeficiency virus . . . . If the victim of the offense requests that the accused person . . . be tested, the court may order the testing of the accused person . . . in accordance with this subsection and the results of such test may be disclosed to the victim. The provisions of sections 19a-581 to 19a-585, inclusive, and section 19a-590, except any provision requiring the subject of an HIV-related test to provide informed consent prior to the performance of such test and any provision that would prohibit or limit the disclosure of the results of such test to the victim under this subsection, shall apply to a test ordered under this subsection and the disclosure of the results of such test. . . .’’

Although the state filed its motion before a 2018 amendment to subsection (a) of § 54-102a replaced the term ‘‘venereal disease’’ with ‘‘sexually transmitted disease’’; Public Acts 2018, No. 18-168, § 29; we use the current revision of the statute in light of the potential for future litigation under the current statute. The amendment has no bearing on the merits of the defendant’s appeal.

4 The defendant appealed from the trial court’s order to the Appellate Court, and we subsequently granted his motion to transfer the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2. After the appeal was filed, certain of the same victims who had filed motions under § 54-102a in the trial court sought permission to file an amicus curiae brief in this court in support of the state’s position, and we granted that request.

5 The defendant also claims that the trial court abused its discretion in ordering that he submit to testing for sexually transmitted diseases pursuant to § 54-102a (a). The portion of his brief addressing this claim, however, focuses exclusively on § 54-102a (b), and the defendant conceded at oral argument before this court that § 54-102a (a) does not incorporate the standard that he claims applies to § 54-102a (b). Accordingly, we conclude that any claim that the trial court abused its discretion in ordering an examination pursuant to § 54-102a (a) has been abandoned. The defendant has not, however, abandoned his contention that § 54-102a (a) is unconstitutional as applied to him on the ground that the state failed to establish probable cause to believe that examining him for sexually transmitted diseases was required to protect the health of the public or the alleged victims.

6 The fourth amendment to the United States constitution provides: ‘‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’’

The fourth amendment’s protection against unreasonable searches and seizures is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

7 The constitution of Connecticut, article first, § 7, provides: ‘‘The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.’’

8 We note that, during the pendency of this appeal, the defendant was convicted, following a jury trial, of the underlying offenses. He has appealed from that conviction, and that appeal is currently pending before this court. As we discuss in greater detail in part I of this opinion, the fact that he has been convicted of those offenses has no bearing on the merits of the present appeal.

9 The alleged victims contend in their amicus brief that ‘‘they were subjected [by the defendant] to much more than oral sex.’’ No evidence as to the nature of the contact between the defendant and the victims, however, was presented to the trial court in connection with the motions for an examination and testing filed pursuant to § 54-102a.

10 We directed the parties to address each of these two issues in supplemental briefs.

11 General Statutes § 54-102b provides in relevant part: ‘‘(a) Notwithstanding any provision of the general statutes, except as provided in subsection (b) of this section, a court entering a judgment of conviction or conviction of a child as delinquent for a violation of section 53a-70b of the general statutes, revision of 1958, revised to January 1, 2019, or section 53a-70, 53a-70a, or 53a-71 or a violation of section 53-21, 53a-72a, 53a-72b or 53a-73a involving a sexual act, shall, at the request of the victim of such crime, order that the offender be tested for the presence of the etiologic agent for acquired immune deficiency syndrome or human immunodeficiency virus and the results be disclosed to the victim and the offender. The test shall be performed by or at the direction of the Department of Correction or, in the case of a child convicted as delinquent, at the direction of the Court Support Services Division of the Judicial Department or the Department of Children and Families, in consultation with the Department of Public Health.

‘‘(b) The provisions of sections 19a-581 to 19a-585, inclusive, and section 19a-590, except the requirement that the subject of an HIV-related test provide informed consent prior to the performance of such test, shall apply

to a test ordered under this section. . . .’’

12 General Statutes § 19a-582 provides in relevant part: ‘‘(a) Except as required pursuant to section 19a-586, a person who has provided general consent as described in this section for the performance of medical procedures and tests is not required to also sign or be presented with a specific informed consent form relating to medical procedures or tests to determine human immunodeficiency virus infection or antibodies to human immunodeficiency virus. General consent shall include instruction to the patient that: (1) As part of the medical procedures or tests, the patient may be tested for human immunodeficiency virus, and (2) such testing is voluntary and that the patient can choose not to be tested for human immunodeficiency virus or antibodies to human immunodeficiency virus. General consent that includes HIV-related testing shall be obtained without undue inducement or any element of compulsion, fraud, deceit, duress or other form of constraint or coercion. If a patient declines an HIV-related test, such decision by the patient shall be documented in the medical record. The consent of a parent or guardian shall not be a prerequisite to testing of a minor. The laboratory shall report the test result to the person who orders the performance of the test.

* * *

‘‘(d) The provisions of this section shall not apply to the performance of an HIV-related test:

* * *

‘‘(8) Under a court order that is issued in compliance with the following provisions: (A) No court of this state shall issue such order unless the court finds a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result that cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for a test result against the privacy interests of the test subject and the public interest that may be disserved by involuntary testing, (B) pleadings pertaining to the request for an involuntary test shall substitute a pseudonym for the true name of the subject to be tested. The disclosure to the parties of the subject’s true name shall be communicated confidentially, in documents not filed with the court, (C) before granting any such order, the court shall provide the individual on whom a test result is being sought with notice and a reasonable opportunity to participate in the proceeding if he or she is not already a party, (D) court proceedings as to involuntary testing shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice . . . .’’

13 Subsections (b) and (c) of § 19a-582, which pertain to persons administering tests authorized under that section, are not relevant to this appeal.

14 The legislation that was ultimately enacted as Spec. Sess. P.A. 94-6, § 27, was first introduced as Substitute House Bill No. 5790 during the regular session of the General Assembly in 1994. Substitute House Bill No. 5790 was passed temporarily on the last day of the regular 1994 session. See 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7684; see also Connecticut General Assembly, Glossary—Legislative Terms and Definitions, available at http://www.cga.ct.gov/asp/content/terms.asp (last visited July 13, 2021) (defining ‘‘pass temporarily’’ as ‘‘[t]o suspend consideration of a particular bill for a short time, for example to await an amendment or the answer to a question’’). During the May, 1994 special session of the General Assembly, legislation identical to the temporarily passed Substitute House Bill No. 5790 was introduced as an amendment to House Bill No. 6010, which the legislature ultimate enacted. See 37 H.R. Proc., Pt. 25, May, 1994 Spec. Sess., p. 9013, remarks of Representative Richard D. Tulisano (proposed legislation ‘‘follows in total . . . a bill that passed this House in the last day of the [regular] session’’). We refer to the debate on both Substitute House Bill No. 5790 and the amendment to House Bill No. 6010 in our discussion of the legislative history of Spec. Sess. P.A. 94-6, § 27.

15 ‘‘It is a basic tenet of the criminal justice system that prosecutions are undertaken and punishments are sought by the state on behalf of the citizens of the state, and not on behalf of particular victims or complaining witnesses. . . . A criminal prosecution is a public matter and not a contest between the defendant and his victims, or their relatives. . . . It is axiomatic, therefore, that [t]he parties to a criminal action are the [state], in whose sovereign name it is prosecuted, and the person accused . . . and not the crime victim(s).’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Gault, 304 Conn. 330, 342–43, 39 A.3d 1105 (2012).

16 In agreeing with the defendant’s proposed construction of § 54-102a (b), the concurrence acknowledges that the sole effect of interpreting the provision in that manner would be to afford a victim in a criminal case the opportunity to seek a testing order under § 19a-582 (d) (8)—with its exceedingly stringent clear and imminent danger/compelling need requirement—in that criminal case rather than in a new or pending civil action. See footnote 4 of the concurring opinion. Although, as we previously explained, this construction is belied by the far broader and more ambitious purpose of the provision—namely, to provide sexual assault victims in criminal cases with simple and straightforward means of determining whether their alleged assailants have HIV—the concurrence makes no mention of that purpose, which is clearly reflected in the relevant legislative history and manifests the intent of the legislature to promote the strong pro victim policy mandated by the federal government under the threat of loss of certain federal funding. As we also explained, under the statutory construction advanced by the defendant and the concurrence, a victim seeking a testing order for a convicted defendant under § 54-102b would still have to satisfy the extremely strict conditions of § 19a-582 (d) (8), even after the defendant has been found beyond a reasonable doubt to have sexually assaulted the victim. It could hardly be more apparent that this construction of §§ 54-102a (b) and 54-102b cannot be squared with the well-defined legislative policy underlying the enactment of those provisions.

Indeed, the thrust of the concurrence seems to be that § 54-102a operates as an unwarranted curtailment of the rights of criminal defendants relative to the protections afforded others who may find themselves the subject of a request for a nonconsensual HIV testing order. The concurrence’s quarrel in this regard is with the legislature, not with us, because § 54-102a represents a legislative policy decision—prompted by the potential loss of federal money—to make it appreciably easier for certain sexual assault victims to obtain such an order.

Although § 54-102a certainly achieves that end, the concurrence claims that the provision, as we construe it, truncates the rights of those criminal defendants to whom it applies to a greater degree than it actually does. More specifically, the concurrence suggests that our ‘‘holding . . . jettisons the procedural safeguards contained in § 19a-582 (d) (8) (B) through (D).’’ However, a review of those provisions, which are designed to protect the identity of a party who is subject to an HIV order, reveals that they generally are not relevant to a request for such an order in a criminal case in which the identity of the defendant and the nature of his or her alleged offenses already are a matter of public record. The concurrence also contends that our construction of § 54-102a (b) ‘‘leads to an inconsistency in the provision of counseling services, which would be afforded to victims, but not to criminal defendants who test positive for HIV.’’ In fact, the ‘‘counseling’’ services to which General Statutes § 54-102c refers are certain publicly available ‘‘educational materials’’ and ‘‘information’’ obtainable through the Department of Public Health, all of which a defendant, or his or her counsel, may readily obtain upon request.

17 Thus, under the interpretation of § 54-102a (b) urged by the defendant, the trial court would have discretion to refuse to order an HIV test, even after finding that all of the requirements of § 19a-582 (d) (8) have been met—that is, after finding that the defendant poses ‘‘a clear and imminent danger to . . . the health’’ of the victim and that the victim ‘‘has demonstrated a compelling need for the HIV-related test result that cannot be accommodated by other means.’’ We see no reason why a court ever would decline to issue such a testing order once it has found that these requirements have been satisfied. If, though, the defendant’s proposed construction of § 54-102b is correct, the legislature intended to grant the court discretion to decline to order a test in such circumstances because no such discretion is granted under § 54-102a, which is applicable to the testing of convicted defendants and requires the court to issue a testing order upon the request of the victim. In contrast to the defendant’s interpretation, the two provisions are entirely logical under the construction we adopt: if, as in the present case, the criminal case is pending, then the court has discretion to order a test, whereas the court must do so once the defendant has been found guilty.

18 We note that the concurrence claims that our reading of § 54-102a (b) would lead to a bizarre and unworkable result in one respect, namely, that, in certain circumstances, a victim would not be able to obtain the very test results that he or she sought under that provision. Although we disagree with this assertion for a number of reasons, it suffices to say that the court has broad authority under § 54-102a (b) both to order testing of the defendant

upon the request of the victim and to order that the test results be disclosed to the victim, and there is nothing in the statutory scheme limiting the court’s discretion to determine how best to accomplish such disclosure in light of the particular circumstances involved.

19 Three additional points bear emphasis. First, under the state’s construction of § 54-102a (b), the defendant’s interest in preventing the unwarranted or inappropriate disclosure of privileged testing information is safeguarded. See, e.g., General Statutes § 19a-583 (a) (subject to certain enumerated exceptions, ‘‘[n]o person who obtains confidential HIV-related information may disclose or be compelled to disclose such information’’); General Statutes § 19a-583 (b) (‘‘[n]o person . . . to whom confidential HIV-related information is disclosed may further disclose such information, except as provided in this section and sections 19a-584 and 19a-585’’); General Statutes § 19a-585 (containing additional safeguards against undue dissemination of HIV related test results or related information). Second, as we discuss in part III of this opinion, article first, § 7, of the state constitution prohibits a court from issuing an HIV testing order under § 54-102a (b) without first finding that such an order would provide useful, practical information to a victim that cannot reasonably be obtained by other means. Finally, as we explained in part I of this opinion, the defendant has the right to immediate appellate review of any order issued pursuant to § 54-102a (b). Thus, a defendant has considerable protection with respect to a court’s exercise of its discretion to order an HIV test under § 54-102a (b) and to the use and dissemination of the results of any such test.

20 We recognize, of course, that, when possible, statutes are to be construed to avoid constitutional infirmity. See, e.g., Mayer-Wittman v. Zoning Board of Appeals, 333 Conn. 624, 638, 218 A.3d 37 (2019) Reliance on that principle for purposes of the present case, however, is misplaced for several reasons. First, although a constitutional gloss is necessary to preclude such an infirmity under our reading of § 54-102a (b); see part III of this opinion; the very same tenet of construction that directs us to interpret a statute to avoid placing it in constitutional jeopardy—so long as that interpretation is consistent with legislative intent—also directs us to ‘‘search for a judicial gloss [on the statute] . . . that will effect the legislature’s [intent] in a manner consistent with constitutional safeguards.’’ (Internal quotation marks omitted.) State v. DeCiccio, 315 Conn. 79, 149, 105 A.3d 165 (2014). Because it is evident, for the reasons previously enumerated, that our construction of § 54-102a (b) is the only reasonable one in light of its text, its relationship to other statutory provisions, and its clear purpose, such a gloss is both necessary and fully consistent with our rules of statutory construction.

Furthermore, the canon ‘‘is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that [the legislature] did not intend the alternative which raises serious constitutional doubts. . . . The canon is thus a means of giving effect to [legislative] intent, not of subverting it.’’ (Citations omitted; emphasis added.) Clark v. Martinez, 543 U.S. 371, 381–82, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005). As we explained, the unmistakable intent behind § 54-102a was to facilitate the examination or testing of criminal defendants for sexually transmitted diseases or HIV, respectively, at the request of sexual assault victims. Construing § 54-102a as the defendant asserts it should be construed—that is, by reading § 19a-582 (d) (8) into it and thereby placing the burden on the victim to satisfy the same stringent conditions that existed prior to the enactment of § 54-102a—would not substantively advance the interests of sexual assault victims in any way, let alone in the distinctly pro victim manner intended by the legislature.

In addition, even if we were to interpret § 54-102a (b) to avoid the need for a constitutional gloss on that statutory subsection, we still would have to place the identical gloss on its companion subsection, § 54-102a (a), pertaining to examination for sexually transmitted diseases. See part III of this opinion. We see no legitimate basis for presuming that the legislature was attentive to the need to avoid placing an interpretive gloss on § 54-102a (b) but not on the closely related provisions of § 54-102a (a).

Finally, our refusal to engage in such a presumption finds support in the fact that, when § 54-102a was enacted in 1994, there was no suggestion in case law from this or any other jurisdiction that subjecting a criminal defendant in a sexual assault case to an HIV testing order at the victim’s request was constitutionally suspect. Indeed, because the impetus for the legislation was the federal government itself, it is hardly likely that our legislature harbored any concern that such a testing provision was of questionable constitutionality. And even today, more than twenty-five years after the enactment of

§ 54-102a in this state and the enactment of virtually identical provisions in many other states, we know of no other court that has found such a provision to be unconstitutional or determined that an interpretive gloss was necessary to avoid constitutional infirmity. In these circumstances, the tenet of statutory construction on which the concurrence relies simply has no utility in evaluating legislative intent.

21 We first address the defendant’s claim under the state constitution because there is no clear and binding precedent on the issue of whether a statute authorizing mandatory examinations for sexually transmitted diseases and mandatory testing for HIV of individuals charged with certain sexual offenses is reasonable under the fourth amendment in the absence of a showing of probable cause to believe that testing is necessary to advance the health interests of the victim or the public. See, e.g., State v. Kono, 324 Conn. 80, 123, 152 A.3d 1 (2016) (‘‘if the federal constitution does not clearly and definitively resolve the issue in the defendant’s favor, we turn first to the state constitution to ascertain whether its provisions entitle the defendant to relief’’).

22 The defendant does not claim that a warrant would be required in a proceeding under § 54-102a if the trial court were constitutionally required to make a finding of probable cause to believe that an examination or testing is necessary to protect the health interests of the victim. This court previously has held, in the civil context, that an adversarial proceeding at which the party seeking an order to conduct a search must prove probable cause is an acceptable substitute for a warrant, in part because ‘‘there are no statutory or regulatory provisions for the issuance of search warrants to facilitate regulatory searches . . . .’’ (Internal quotation marks omitted.) Bozrah v. Chmurynski, 303 Conn. 676, 694, 36 A.3d 210 (2012). Similarly, in the present case, because the purpose of an order pursuant to § 54-102a is not to obtain evidence for use at the criminal trial, a search warrant would not be an appropriate mechanism to compel a defendant to provide a blood sample.

23 We note that the defendant does not claim that there is no special needs exception to article first, § 7, of the state constitution. Accordingly, we assume for purposes of this opinion that there is.

24 In his dissenting opinion in Von Raab, Justice Scalia distinguished the case from Skinner, in which he had joined the majority, on the ground that, in Skinner, ‘‘the demonstrated frequency of drug and alcohol use by the targeted class of employees, and the demonstrated connection between such use and grave harm, rendered the search a reasonable means of protecting society.’’ National Treasury Employees Union v. Von Raab, supra, 489 U.S. 680 (Scalia, J., dissenting). In contrast, because ‘‘neither frequency of use nor connection to harm [was] demonstrated or even likely’’ in Von Raab, Justice Scalia would have concluded that the drug testing program was unconstitutional. Id., 681 (Scalia, J., dissenting).

25 In his dissenting opinion in King, Justice Scalia contended that the DNA testing procedure had nothing to do with identifying arrestees but was intended to identify the source of the DNA of persons who had committed unsolved crimes. See Maryland v. King, supra, 569 U.S. 470–76 (Scalia, J., dissenting). Accordingly, he concluded that the DNA testing procedure was an unconstitutional suspicionless search. Id., 481 (Scalia, J., dissenting).

26 The discussion that follows addresses HIV testing rather than examinations for sexually transmitted diseases because the case law appears to be more developed with respect to the issue of HIV testing. As we explain hereinafter, however, our reasoning and conclusion regarding the propriety of HIV testing under the state constitution are also applicable to examinations for sexually transmitted diseases.

27 See, e.g., Fosman v. State, 664 So. 2d 1163, 1164–67 (Fla. App. 1995) (Florida statute requiring court to order HIV testing of defendant charged with certain offenses was constitutional under fourth amendment); Adams v. State, 269 Ga. 405, 405, 410, 498 S.E.2d 268 (1998) (Georgia statute authorizing court to order HIV testing of defendants charged with certain offenses was constitutional under fourth amendment); State in the Interest of J. G., 151 N.J. 565, 570, 588, 701 A.2d 1260 (1997) (New Jersey statute requiring juveniles charged with certain offenses to submit to HIV testing was constitutional under fourth amendment and New Jersey constitution in cases in which there had been possible transfer of bodily fluids); People v. Thomas, 139 Misc. 2d 1072, 1074–75, 529 N.Y.S.2d 429 (1988) (rejecting claim that New York statute authorizing HIV testing of defendants charged with certain crimes violated fourth amendment and granting request for testing order); State v. Houey, 375 S.C. 106, 109–10, 113, 651 S.E.2d 314 (2007) (South Carolina statute authorizing court to order HIV testing of defendants charged

with certain offenses was constitutional under South Carolina and federal constitutions); see also Harris v. Thigpen, 941 F.2d 1495, 1512 (11th Cir. 1991) (Alabama statute requiring testing of inmates for HIV upon admission to and within thirty days of release from prison did not violate constitutionally guaranteed privacy rights); Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (nonconsensual testing of prisoner for HIV did not violate fourth amendment), cert. denied, 493 U.S. 1059, 110 S. Ct. 871, 107 L. Ed. 2d 954 (1990); State v. Superior Court, 187 Ariz. 411, 417, 930 P.2d 488 (App. 1996) (Arizona statute allowing victim of delinquent act committed by juvenile that would be sexual offense if committed by adult to request HIV testing of juvenile was constitutional under fourth amendment), review denied, Arizona Supreme Court, Docket No. CV-96-0498-PR (January 14, 1997); Love v. Superior Court, 226 Cal. App. 3d 736, 746, 276 Cal. Rptr. 660 (1990) (California statute requiring defendants convicted of certain sexual offenses to undergo HIV testing was constitutional under fourth amendment); People v. Adams, 149 Ill. 2d 331, 333, 351–52, 597 N.E.2d 574 (1992) (Illinois statute requiring court to order HIV testing of defendants convicted of certain crimes was constitutional under fourth amendment and Illinois constitution); People v. C.S., 222 Ill. App. 3d 348, 350, 353, 583 N.E.2d 726 (1991) (Illinois statute authorizing HIV testing of defendants convicted of certain drug paraphernalia offenses was constitutional under fourth amendment), appeal denied, 146 Ill. 2d 636, 602 N.E.2d 461 (1992); People v. Cook, 143 App. Div. 2d 486, 487, 532 N.Y.S.2d 940 (court order requiring defendant who had been convicted of first degree rape to undergo testing for presence of acquired immunodeficiency syndrome (AIDS) upon request of victim was constitutional), appeal denied, 73 N.Y.2d 786, 533 N.E.2d 676, 536 N.Y.S.2d 746 (1988); People v. J. G., 171 Misc. 2d 440, 451, 655 N.Y.S.2d 783 (1996) (New York statute requiring court to order HIV testing for defendants convicted of certain crimes was constitutional under fourth amendment); State v. Handy, 191 Vt. 311, 324, 44 A.3d 776 (2012) (Vermont statute allowing victim of sex offense to obtain court order for testing of convicted perpetrator for AIDS was constitutional); In re Juveniles A, B, C, D, E, 121 Wn. 2d 80, 98, 847 P.2d 455 (1993) (Washington statute mandating HIV testing for all defendants convicted of certain offenses was constitutional under fourth amendment); cf. Walker v. Sumner, 917 F.2d 382, 387–88 (9th Cir. 1990) (District Court improperly granted defendants’ motion for summary judgment on plaintiff’s claim that prison directive ordering mandatory HIV testing of all inmates was unconstitutional when defendants failed to present evidence to establish purpose of testing or that results would be used to further legitimate penological end).

28 We express no opinion as to whether the state may have a significant interest in preventing the spread of HIV in prison populations that outweighs the diminished expectation of privacy of convicted defendants. See, e.g., Dunn v. White, supra, 880 F.2d 1195 (‘‘[t]he prison’s interest in responding to the threat of AIDS, or any contagious disease occurring in prison, is obviously strong’’); Harris v. Thigpen, 727 F. Supp. 1564, 1572 (M.D. Ala. 1990) (‘‘the [s]tate’s interest in preventing the spread of [AIDS] among prison inmates and prison officials . . . amounts to a controlling [s]tate interest’’), vacated in part on other grounds, 941 F.2d 1495 (11th Cir. 1991); People v. Adams, supra, 149 Ill. 2d 346 (‘‘the purpose of the HIV testing statute [was] to protect public health by preventing the spread of AIDS among members of the community’’); In re Juveniles A, B, C, D, E, 121 Wn. 2d 80, 94, 847 P.2d 455 (1993) (‘‘the [s]tate has a compelling interest in combating the spread of AIDS’’ by convicted defendant).

29 See Johnetta J. v. Municipal Court, supra, 218 Cal. App. 3d 1280–81 (‘‘The experts suggest that a bitten officer would be well advised to have a blood test for clearer information, but HIV antibodies generally would not develop for three to six months after the bite. [The HIV testing statute] provides a prompt mechanism to obtain some information pertinent to the officer’s health, and therefore to the governmental special need.’’ (Emphasis added.)); Adams v. State, 269 Ga. 405, 409, 498 S.E.2d 268 (1998) (same). Despite recognizing the time limitations on the usefulness of testing defendants for HIV, the courts in both Johnetta J. and Adams found the HIV testing statutes under review to be constitutional without any limitation on their application. See Johnetta J. v. Municipal Court, supra, 1285; Adams v. State, supra, 409–10.

A number of courts that have rejected constitutional challenges to statutes requiring HIV testing of defendants who have been convicted of certain crimes have also relied on the court’s statement in Johnetta J. that HIV testing of defendants can be medically useful and can provide psychological benefits to victims; see Johnetta J. v. Municipal Court, supra, 218 Cal. App.

3d 1280–81; apparently without recognizing that that observation pertained to the period in which testing the victim would not yield useful results. See People v. J. G., 171 Misc. 2d 440, 450, 655 N.Y.S.2d 783 (1996); State v. Handy, 191 Vt. 311, 324, 44 A.3d 776 (2012); In re Juveniles A, B, C, D, E, 121 Wn. 2d 80, 93–95, 847 P.2d 455 (1993).

30 We note that, in Government of the Virgin Islands v. Roberts, 756 F. Supp. 898 (D.V.I. 1991), the court noted that, ‘‘[f]or up to a year after the attack and perhaps longer . . . a rape victim cannot conclude from her own negative HIV test results that her assailant did not expose her to the virus or that she is not infected and therefore capable of transmitting HIV to others.’’ Id., 903. The court concluded from this fact that ‘‘there is considerable medical utility in examining the blood of the putative source of HIV infection, even though the results are not dispositive.’’ (Internal quotation marks omitted.) Id., 903. Accordingly, the court found the court order for HIV testing at issue to be constitutional. Id., 904. It bears emphasis, however, that the assault in Roberts took place on October 29, 1990, and the testing order was issued on January 18, 1991; id., 899, 904; well within the period that testing of the defendant could provide results useful to the victim.

31 Under the federal Drug Control and System Improvement Formula Grant Program, the director of the federal Bureau of Justice Assistance in the United States Department of Justice was ‘‘authorized to make grants to states to enable them to enforce state and local laws that establish offenses similar to those in the Controlled Substances Act (21 U.S.C. § 801 et seq.) and to improve how the criminal justice system functions with respect to violent crime and serious offenders.’’ Office of Legislative Research, Bill Analysis, Substitute House Bill No. 5790, 1994 Sess. The director was authorized to deny participating states 10 percent of their authorized funding if they did not enact laws authorizing the testing of defendants convicted of certain sexual offenses to undergo HIV testing. Id.

32 We recognize, of course, that it has been more than four years since the offending sexual contact occurred and, therefore, that it is highly unlikely that the victims can demonstrate that, at this late date, an order under § 54-102a (b) would result in the discovery of useful, practical information that they could not reasonably obtain by self-examination or testing. We nevertheless remand the case for a new hearing because of the possibility, however remote, of circumstances, unknown to us, that might justify such an order.

33 We note that when, as in the present case, we have determined that a defendant is entitled to protection under the state constitution, we ordinarily would have no need to address any parallel claim raised under the federal constitution. In the present case, however, the relief that we have afforded the defendant under the state constitution is not the full relief that he has sought under either the state or federal constitution. This is so because the standard that the defendant claims is applicable to an order issued pursuant to § 54-102a is considerably more demanding than the standard that we have concluded is required under the state constitution. Consequently, although highly unlikely, it is at least theoretically possible that, for purposes of § 54-102a, the defendant is entitled to greater protection under the federal constitution than the protection afforded under the state constitution. It is clear, from our review of the relevant federal precedent, however, that, whatever the defendant’s rights may be under the fourth amendment, in no event are they greater than his rights under the state constitution.

Notes

1

General Statutes (Supp. 2014) § 53a-83 (c) (2) (A) provides in relevant part: ‘‘Any person who (2) patronizes a prostitute who is (A) a victim of human trafficking . . . is guilty of patronizing a prostitute under these circumstances.’’

2

General Statutes § 53a-192a provides in relevant part that a person is guilty of trafficking in persons when he commits specified acts with respect to another person. General Statutes § 53a-48 is the conspiracy statute.

3

§ 54-102a provides in relevant part: ‘‘(a) In any criminal case in which a person is charged with a violation of section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or a violation of subdivision (2) of subsection (c) of section 53a-83 . . . the court may order that the defendant be examined for any sexually transmitted disease . . . .

‘‘(b) In any criminal case in which a person is charged with a violation of section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or a violation of subdivision (2) of subsection (c) of section 53a-83 . . . the court may order that the defendant be tested for the presence of the human immunodeficiency virus . . . .’’

4

The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

5

At oral argument, the defendant conceded that the rigorous requirements of § 19a-582 (d) (8) do not apply to motions for an examination for sexually transmitted diseases under § 54-102a (a).

6

The fourth amendment to the United States constitution provides in relevant part: ‘‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .’’

7

Article first, § 7, of the Connecticut constitution provides: ‘‘The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.’’

8

During the pendency of this appeal, the defendant was convicted of the charged crimes. We directed the parties to submit supplemental briefs addressing whether that conviction rendered the appeal moot.

9

The record does not indicate whether this victim was one of those who sought the HIV test.

10

The defendant also claimed that the trial court’s order was a violation of his constitutional rights. We address this claim in part III of this opinion.

11

General Statutes § 54-102b provides in relevant part that the court shall order HIV testing of any person convicted of certain enumerated offenses if the victim requests such an order.

12

General Statutes § 19a-582 (d) (8) provides in relevant part that HIV testing without consent may be ordered by a court if the court finds that there is ‘‘a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result that cannot be accommodated by other means.’’

13

General Statutes § 19a-582 (a) provides in relevant part: ‘‘No person shall test any person for the presence of the human immunodeficiency virus . . . without the written, informed consent of the person to be tested . . . .’’

14

This act was the legislation that created the statutory scheme at issue. We refer to the Public Act by its short title in the session laws.

15

As a nonparty to the criminal case, a victim generally lacks standing to participate in the case or to move for orders therein.

16

The defendant’s argument is that § 19a-582 (d) (8) is a general statute that applies to all orders for nonconsensual HIV testing, regardless of the context in which the testing is sought.

17

If the court were required to find a compelling need that could not be accommodated by other means, the distinction between ‘‘may’’ and ‘‘shall’’ would effectively disappear because the finding of a compelling need would be the primary driver of the order in both cases.

18

We note that there are other instances in our statutes where the legislature has distinguished between orders issued pending a criminal case and those issued following a conviction.

19

We express no opinion on whether the trial court would have the authority to grant such a motion if no victim sought the test, as that issue is not before us.

20

We reiterate that this interpretation does not mean that the order is not subject to constitutional scrutiny, as we discuss in part III of this opinion.

21

The defendant also claimed that the trial court’s order was a violation of his constitutional rights.

22

The state acknowledges that a blood test is a bodily intrusion that requires a warrant absent exigent circumstances.

23

The defendant also claimed that the trial court’s order was a violation of his constitutional rights.

24

The court also distinguished the program in Von Raab from the one in Skinner by noting that the employees in Von Raab were tested only for access to sensitive information and drug enforcement, not because they were involved in a safety-sensitive industry.

25

The court also noted that the DNA identification of arrestees is a ‘‘form of routine booking procedure’’ similar to photographing or fingerprinting. Maryland v. King, supra, 569 U.S. 449.

26

The defendant also claimed that the trial court’s order was a violation of his constitutional rights.

27

The defendant also claimed that the trial court’s order was a violation of his constitutional rights.

28

We express no opinion as to whether the state may have a significant interest in preventing the spread of HIV in prison populations that outweighs the diminished expectation of privacy of convicted defendants. See, e.g., Dunn v. White, supra, 880 F.2d 1195 (‘‘[t]he prison’s interest in responding to the threat of AIDS, or any contagious disease occurring in prison, is obviously strong’’); Harris v. Thigpen, 727 F. Supp. 1564, 1572 (M.D. Ala. 1990) (‘‘the [s]tate’s interest in preventing the spread of [AIDS] among prison inmates and prison officials . . . amounts to a controlling [s]tate interest’’), vacated in part on other grounds, 941 F.2d 1495 (11th Cir. 1991); People v. Adams, supra, 149 Ill. 2d 346 (‘‘the purpose of the HIV testing statute [was] to protect public health by preventing the spread of AIDS among members of the community’’); In re Juveniles A, B, C, D, E, 121 Wn. 2d 80, 94, 847 P.2d 455 (1993) (‘‘the [s]tate has a compelling interest in combating the spread of AIDS’’ by convicted defendant).

29

See Johnetta J. v. Municipal Court, supra, 218 Cal. App. 3d 1280–81 (‘‘The experts suggest that a bitten officer would be well advised to have a blood test for clearer information, but HIV antibodies generally would not develop for three to six months after the bite. [The HIV testing statute] provides a prompt mechanism to obtain some information pertinent to the officer’s health, and therefore to the governmental special need.’’ (Emphasis added.)); Adams v. State, 269 Ga. 405, 409, 498 S.E.2d 268 (1998) (same). Despite recognizing the time limitations on the usefulness of testing defendants for HIV, the courts in both Johnetta J. and Adams found the HIV testing statutes under review to be constitutional without any limitation on their application. See Johnetta J. v. Municipal Court, supra, 1285; Adams v. State, supra, 409–10.

30

We note that, in Government of the Virgin Islands v. Roberts, 756 F. Supp. 898 (D.V.I. 1991), the court noted that, ‘‘[f]or up to a year after the attack and perhaps longer . . . a rape victim cannot conclude from her own negative HIV test results that her assailant did not expose her to the virus or that she is not infected and therefore capable of transmitting HIV to others.’’ Id., 903. The court concluded from this fact that ‘‘there is considerable medical utility in examining the blood of the putative source of HIV infection, even though the results are not dispositive.’’ (Internal quotation marks omitted.) Id., 903. Accordingly, the court found the court order for HIV testing at issue to be constitutional. Id., 904. It bears emphasis, however, that the assault in Roberts took place on October 29, 1990, and the testing order was issued on January 18, 1991; id., 899, 904; well within the period that testing of the defendant could provide results useful to the victim.

31

Under the federal Drug Control and System Improvement Formula Grant Program, the director of the federal Bureau of Justice Assistance in the United States Department of Justice was ‘‘authorized to make grants to states to enable them to enforce state and local laws that establish offenses similar to those in the Controlled Substances Act (21 U.S.C. § 801 et seq.) and to improve how the criminal justice system functions with respect to violent crime and serious offenders.’’ Office of Legislative Research, Bill Analysis, Substitute House Bill No. 5790, 1994 Sess. The director was authorized to deny participating states 10 percent of their authorized funding if they did not enact laws authorizing the testing of defendants convicted of certain sexual offenses to undergo HIV testing. Id.

32

We recognize, of course, that it has been more than four years since the offending sexual contact occurred and, therefore, that it is highly unlikely that the victims can demonstrate that, at this late date, an order under § 54-102a (b) would result in the discovery of useful, practical information that they could not reasonably obtain by self-examination or testing. We nevertheless remand the case for a new hearing because of the possibility, however remote, of circumstances, unknown to us, that might justify such an order.

33

We note that when, as in the present case, we have determined that a defendant is entitled to protection under the state constitution, we ordinarily would have no need to address any parallel claim raised under the federal constitution. In the present case, however, the relief that we have afforded the defendant under the state constitution is not the full relief that he has sought under either the state or federal constitution. This is so because the standard that the defendant claims is applicable to an order issued pursuant to § 54-102a is considerably more demanding than the standard that we have concluded is required under the state constitution. Consequently, although highly unlikely, it is at least theoretically possible that, for purposes of § 54-102a, the defendant is entitled to greater protection under the federal constitution than the protection afforded under the state constitution. It is clear, from our review of the relevant federal precedent, however, that, whatever the defendant’s rights may be under the fourth amendment, in no event are they greater than his rights under the state constitution.

Case Details

Case Name: State v. Bemer

Court Name: Supreme Court of Connecticut

Date Published: Nov 23, 2021

Citations: 339 Conn. 528; 262 A.3d 1; SC20195

Docket Number: SC20195

Court Abbreviation: Conn.