Delaware committee approves bill that would mandate HIV testing for accused sex offenders

Under a bill (HB 424) approved by the Delaware House Judiciary Committee on Thursday, anyone arrested for a crime involving sexual intercourse or sexual contact could be required to undergo an HIV test, the AP/Washington Examiner reports.

The bill would amend an already existing state law and require an accused sex offender to submit to HIV testing within 48 hours of arrest if requested by the alleged victim or a court order. If considered appropriate, the defendant also would have to submit to follow-up tests, even if initial tests were negative.

Unlike the existing law, some indication that HIV might have been transmitted, such as an exchange of bodily fluids, would not be necessary before a defendant undergoes testing. The bill also would mandate testing around the time of arrest, instead of around the time of arraignment, when a defendant is more likely to be represented by an attorney. In addition, a defendant would be required to pay the cost of testing unless deemed unable to do so.

Elizabeth Olsen, deputy secretary of the state Department of Safety and Homeland Security, said that if passed, the bill would allow the state to continue to receive up to $500,000 annually in federal grants through the Violence Against Women Act.

According to the AP/ Examiner, committee members voted to approve the bill after discussing possible privacy rights infringements on defendants who have not been convicted of crimes. Deputy Attorney General Tina Showalter said, "There's a whole lot of things we infringe upon showing of probable cause, including your liberty." Judiciary Committee Chair Robert Valihura (R) said the HIV testing requirement would be similar to the blood test required of motorists arrested for driving under the influence. Drewry Fennell, executive director of the American Civil Liberties Union of Delaware, said she disagrees with the blood test comparison. She said, "A positive HIV test is a devastating life event and one that needs to be accompanied by appropriate counseling, treatment and follow-up," adding, "It's not at all the same as a DUI test." Fennell also said, "I can certainly understand the impetus behind doing this, but there need to be very robust safeguards." According to Fennell, ACLU is concerned with the confidentiality of a defendant's medical information and the availability of proper HIV treatment (Chase, AP/Washington Examiner, 6/5).