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Department of Justice Appropriations Authorization Act, Fiscal Years 2006 Through 2009

Location: Washington, DC



Mr. COBURN. Mr. President, the Violence Against Women Act, VAWA, approved by the Senate today contains an important provision that is intended to protect women who have already been victimized once by sexual assault from being assaulted again by either the deadly AIDS virus or the legal system which may deny them potentially life-saving information.

Section 102 of VAWA now encourages States to implement laws that provide victims of sexual assault and rape the opportunity to know if the person indicted for the assault is infected with HIV. This new provision will require the Attorney General to reduce the amount of funding provided under Section 102 by 5 percent to a State or local government that has not demonstrated that laws are in place to allow a victim to request that a defendant, against whom an information or indictment is presented for a crime in which by force or threat of force the perpetrator compels the victim to engage in sexual activity, be tested for HIV disease if the nature of the alleged crime is such that the sexual activity would have placed the victim at risk of becoming infected with HIV. The defendant must undergo the test not later than 48 hours after the date on which the information or indictment is presented, and as soon thereafter as is practicable the results of the test must be made available to the victim. As medically appropriate, the victim may request follow-up testing of the defendant. If a State or local government does not currently allow victims of sexual assault such protections, assurances must be made to the Attorney General that the state legislature will bring their laws into compliance before the end of their next session or within 2 years. The 5 percent penalty will not go into effect until the expiration of the two year extension

The bill will also now allow Federal VAWA funds to be used to pay for HIV testing of sexual assault perpetrators and notification and counseling programs.

These provisions are desperately needed to address a real, grievous injustice that victims of sexual assault are facing in many states.

In the summer of 1996, a 7-year-old girl was brutally raped by a 57-year-old aged man who later told police he was infected with HIV. The little girl and her 5-year-old brother had been lured to a secluded, abandoned building in the East New York section of Brooklyn. The man raped and sodomized the girl. Her brother, meanwhile, was beaten, tied up, and forced to witness his sister's rape. After the man's arrest, the defendant refused to be tested for the AIDS virus by the Brooklyn District Attorney's office. His refusal to take the test was permitted under State law.

In the spring of 2002, Ramell Rodgers repeatedly raped ``Jane,'' a female New York cab driver at gunpoint. The New York Daily News reported at the time that ``Rodgers is in jail awaiting trial, while `Jane' spends her days vomiting from drugs she takes to stave off sexually transmitted diseases she may have contracted in the attack. Officials say DNA evidence links Rodgers to the March 31 assault. According to sources close to the case, he has even admitted guilt. But he is not required to be tested for diseases until he is formally convicted.''

``Jane'' is determined to change the law to protect others who have been victimized by rape and sexual assault. Disguised in a scarf, wig sunglasses, she spoke at a New York State Federation of Taxi Drivers press conference:

As a precaution, I have to take ``four different medicines [to help protect against HIV, chlamydia, herpes and other STDs], and I was told that, unless this guy volunteers for the test, I had to wait until he was convicted.'' She added: ``If you are assaulted, you should have the right to know whether or not this person has infected you with anything.

One November evening in 2002, Doris Stewart, who was then 64, was awakened from her sleep when she heard a knock at her front door. When she went to the door, a man forced his way inside, then raped, sodomized and robbed her. Stewart's assault was just the beginning of her emotional distress. She harbors fears that her assailant may have HIV, but she has no way of knowing with certainty because Alabama is another of the few States that do not require testing of rape suspects for HIV. Stewart, who was advised by rape counselors to wait about 2 months before being tested, lived with fear of the unknown for months because it can take at least 3 to 6 months for HIV to be detected after infection. ``Everybody I talk to thinks it's so unfair that there's no law in Alabama,'' said Stewart who has attempted to change the state law to protect future rape victims.

There are countless stories of other women and children who have been victims of rape and sexual assault who have been denied access to this potentially life saving information. In some circumstances, rape defendants have even used HIV status information as a plea bargaining tool to reduce their sentences.

As a practicing physician, I believe that its is vitally important that those who have been raped do not also become victims of HIV/AIDS, and that requires timely medical attention including prompt testing of the defendant. Treatment with AIDS drugs in the immediate aftermath, usually within 72 hours, of exposure can significantly reduce the chance of infection. However, because of the toxicity and long-term side effects, these drugs should not be administered for long periods without knowing if HIV exposure has occurred.

Victims can not rely solely on testing themselves because it can take weeks, sometimes months, before HIV antibodies can be detected. Therefore, testing the assailant is the only timely manner in which to determine if someone has been exposed to HIV. Furthermore, rapid tests are now available that can diagnose HIV infection within 20 minutes with more than 99 percent accuracy.

The American Medical Association supports this policy because ``early knowledge that a defendant is HIV infected would allow the victim to gain access to the ever growing arsenal of new HIV treatment options. In addition, knowing that the defendant was HIV infected would help the victim avoid contact which might put others at risk of infection.''

While the HIV infection rate among sexual assault victims has not been studied, the National Rape Crisis Center estimates the rate is higher than the general population because the violent nature of the forced sexual contact increases the chances of transmission.

I was very disappointed that the National Center for Victims of Crime, NCVC and the American Civil Liberties Union, ACLU, opposed this provision. NCVC claimed that ``mandatory testing of sex offenders may not be in the best interest of the victim/survivor.'' The ACLU claimed that ``forced HIV testing, even of those convicted of a crime, infringes on constitutional rights and can only be justified by a compelling governmental interest. No such interest is present in the case of a rapist and his victim because the result of a rapist's HIV test, even if accurate, will not indicate whether the rape victim has been infected.''

The medical facts are quite obvious why knowledge of HIV exposure is vital to victims of sexual assault and it is astonishing that anyone would argue otherwise.

Claims that providing this information to victims would compromise ``privacy'' are also quite shocking. Exactly whose rights are being protected by denying a victim of sexual assault the right to know if she has been exposed to the deadly AIDS virus when she was raped? If sufficient evidence exists to arrest and jail a rape suspect, the victim should have the right to request that the suspect be tested for HIV.

Finally, the claim that testing of indicted rapists is unconstitutional is also unfounded. Numerous court decisions, in fact, have concluded otherwise.

In 1997, the New Jersey Supreme Court unanimously upheld the constitutionality of two state laws that require sex offenders to undergo HIV testing. The ruling followed the case of three boys who forcibly sodomized a mentally-retarded 10-year-old girl. At the request of the girl's guardian, HIV testing was ordered for each of the defendants. The boys' public defender opposed such testing. The court ruled that the victim's need to know outweighed the defendants' rights to privacy and confidentiality.

In December 1995, a Florida appeals court upheld the constitutionality of a state law allowing judges to order defendants charged with rape to submit to HIV testing. Duane Fosman was arrested and charged with armed sexual battery. At the request of the accuser, a Broward County trial judge ordered Fosman to be tested for HIV antibodies. Under the Florida law, a crime victim can ask a judge to order HIV testing of a defendant who has been charged with any one of 12 offenses, including sexual battery. The test results are disclosed only to the victim, the defendant and public health authorities. Fosman argued that the testing and taking of his blood amounted to an unreasonable search that violated the fourth amendment of the U.S. Constitution. He also said the action violated Article I, Section 23, of the Florida Constitution, which guarantees a person's right to be free from Governmental intrusion in his private life. In addition, he asserted that the law is unconstitutional because it doesn't give him an opportunity to rebut the presumption of probable cause. A three-judge panel of the Court of Appeal, Fourth District, said Fosman's situation was analogous to blood and urine testing for drug or alcohol use. In 1989, the U.S. Supreme Court in Skinner v. Railway Labor Executive's Association ruled it was constitutionally permissible to test railroad workers who were involved in serious train crashes. In a companion case, National Treasury Employees Union v. Von Raab, the high court allowed mandatory drug testing, without probable cause, of customs employees. Under the same rationale, the Illinois Supreme Court upheld a law which required HIV testing of persons convicted of prostitution, and a California appeals court affirmed a law requiring HIV testing of defendants charged with biting or transferring blood to a police officer. In each of the cases, the ``special needs'' of the public outweighed the individual's demand that probable cause be established, the Florida court said. ``Even if the petitioner had a reasonable expectation of privacy, society's interest in preventing members of the public from being exposed to HIV would be a sufficient compelling state interest to justify the infringement of that right,'' the court said. It found the law to be ``the least intrusive means'' to deal with HIV transmission because blood tests are routine and disclosure of test results are limited.

It is my hope that those States that do not allow victims of sexual assault the right to know the HIV status of their attacker will update their laws and begin protecting the rights of the victims rather than the perpetrators.

I also thank Chairman SPECTER and Senator BIDEN for including this important provision.

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