Summersgill testifies on HIV testing amendment
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GLAA policy on AIDS and public health

Summersgill testifies on HIV testing amendment

Testimony submitted for the record by Bob Summersgill on the
Omnibus Anti-Crime Amendment Act of 2009, Bill 18-0138
To the Committee on Public Safety and the Judiciary, March 18, 2008

Chairman Mendelson:

The Omnibus Anti-Crime Amendment Act of 2009, Bill 18-0138, has a number of serious problems, but my testimony focuses on the problems with one section. Section 216 of the bill would amend The HIV Testing of Certain Criminal Offenders Act of 1995; however it fails to (1) help the victim, (2) adds stigma to HIV, and (3) violates the rights of the defendant.

Helping the victim

The original 1995 legislation was designed to let a sexual assault victim know as early as possible if his or her assailant is infected with HIV so that the victim could get treatment sooner or be relieved of that particular worry.

Bill 18-0138 fails to recognize the medical advances of the past decade. In the early 1990s, there was no effective treatment for HIV. Testing was expensive, took weeks to get results, and because it looked for anti-bodies, was unreliable for the first 3 to 6 months after infection.

Today, we have effective treatments which make HIV a long-term, manageable disease. Importantly, we also have post-exposure prophylactic drug regimens that can prevent HIV disease if taken within days after infection.

HIV-antibody tests are now cheap and quick—results are available in 20 minutes. There is also a test for the virus itself, not just the antibodies. The viral load test is a standard test to monitor disease progression. The viral load test doesn’t need 3 to 6 months to be reliable because HIV replicates rapidly after initial infection and before the body can develop antibodies.

We now have the technology to determine if a person has been infected and treatment to prevent HIV from taking hold. If intervention is too late, there is effective treatment to hold the virus in check for decades and decades with few side effects.

The bill also makes an unstated and misguided presumption that the victim was HIV negative before the assault. It is estimated that 1 in 4 people in the U.S. with HIV are unaware that they have HIV and 3% of people in D.C. are infected with HIV. The victim needs information on what is going on in his or her own body, not what is in the assailant’s body.

To help the victims, the appropriate response is to provide free post-exposure prophylactic drugs, counseling, and viral-load testing until it is clear that the patient either has not been infected, or if he or she has been infected, started on a regular treatment program. Morning-after pregnancy prevention drugs and other appropriate interventions should also be available in addition to counseling and follow up that the victims may need.

Unnecessarily stigmatizes HIV

The original 1995 legislation and today’s bill both make the same error in singling out HIV disease for special consideration. Both treat HIV as something unique and sufficiently onerous that it be handled unlike any other communicable disease.

Hepatitis C is transmitted in the same ways, has less effective treatments, and is quite deadly but, because there is not a widespread panic about it, we treat it as a normal medical problem. HIV needs to be handled as a normal and routine public health problem, not singled out for added scrutiny and stigma.

HIV testing needs to become as routine as cholesterol testing if we are going to reduce the number of people infected with HIV but don’t know it. Both Section 216 of the bill and the 1995 law (DC Code Section 22-3901) exacerbate the problem by treating HIV as something different requiring different laws and different medical interventions.

Violates the rights of the defendant

When the 1995 bill was originally submitted, a conviction was not needed to force testing, only an arrest. This was wisely changed so that only a convicted individual could be involuntarily subjected to the testing, thereby maintaining the presumption of innocence until proven guilty. It was thought that false charges might be made by people who wanted to find out about their consensual partner’s HIV status.

Bill 18-0138 would strip away the presumption of innocence, by changing the phrase “convicted individual” to “defendant.” There are numerous restrictions faced by a convicted criminal— among them are loss of freedom and even life. However, a person who is charged but not convicted must be granted the maximum freedoms that we can safely allow.

Bill 18-0138 would violate hundreds of years of criminal law, the defendant’s medical privacy, and the Fourth Amendment right to be “secure in their persons … against unreasonable searches and seizures.”

To help sexual assault victims, we need to offer a range of testing and post-exposure prophylactics in addition to the other counseling and follow up that the victims may need. To fight the spread of HIV, we need—in part—to reduce stigma and promote routine testing. To protect the rights of the defendants, we need to maintain the presumption of innocence.

I recommend that the Committee amend Section 216 of the bill to delete Title 22 Chapter 39 from the Code.

Thank you for your consideration of my comments and the opportunity to testify in writing on this bill.

-Bob Summersgill
Washington, DC

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