Summersgill: Repeal panic-driven HIV testing law
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Summersgill: Repeal panic-driven HIV testing law

Testimony submitted for the record by Bob Summersgill on the
"Criminal Code Amendments Act of 2010," B18-0963
To the Committee on Public Safety and the Judiciary, September 27, 2010

Chairman Mendelson:

Thank you for introducing this bill and the opportunity to testify on this legislation. Please add a new section to the bill repealing the “HIV Testing of Certain Criminal Offenders Act of 1995,” (D.C. Law 11-74, D.C. Official Code § 22-3901). The Act requires that people convicted of sexual assault—rape—to be tested for HIV antibodies and the results given to the victim. The victim is under no obligation to keep the results confidential. The Act fails to help the victims of sexual assault, violates medical privacy rights, and adds to the stigma of HIV and AIDS.

Helping the victim

The HIV Testing of Certain Criminal Offenders Act 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.

The medical advances of the past decade have completely changed the situation. 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. We have the technology to determine if a person has been infected shortly after infection. We also have post-exposure prophylactic drug regimens that can prevent HIV disease if taken within days after infection, especially within 24 hours. If intervention is too late, there is effective treatment to hold the virus in check for decades and decades with few side effects.

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 and the activity of the HIV in a patient. 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 to combat it.

The 1995 Act also makes an unstated presumption that the victim was HIV negative before the assault. This is not a reasonable assumption. It is estimated that 1 in 4 people in the U.S. with HIV are unaware that they have HIV and 5% of people in the District 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. The victim would also not receive the results of the forced HIV test of the assailant until after he or she is convicted. Trial and conviction can take months or years, and is not a sure event. It would be much more helpful to the victim if he or she was tested and treated immediately, and provided needed counseling and follow up treatment and care.

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. Most, if not all of this is already provided under D.C. Code § 7-2121, “Victims of Sexual Assault Emergency Care.”

Medical Privacy

D.C. Code § 7-131, “Regulations to prevent spread of communicable diseases” provides the guidance on preventing the spread of HIV as well as the confidentiality that should be maintained. § 7-1605, “Confidentiality of medical records and information,” makes it explicit that the confidentiality rules in § 7-131 apply to HIV and AIDS.

Disclosing someone’s HIV status also appears to be a violation of the federal Health Insurance Portability and Accountability Act of 1996 (HIPPA). This federal law pre-empts District law. Medical privacy has become a serious issue and disclosure of medical information is not an acceptable practice.

Medical privacy is just as important to maintain for inmates as it is for the rest of the population, as the inmates will not be in jail forever. Violating medical confidentiality as the Act does is neither useful nor beneficial for anyone.

Unnecessarily stigmatizes HIV

The Act errs in singling out HIV disease for special consideration. It treats 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 also needs to be handled as another public health problem, not singled out for added scrutiny and stigma.

HIV testing needs to become routine as is cholesterol testing if we are going to reduce the number of people infected with HIV but don’t know it. The Act exacerbates the problem by treating HIV as something different requiring different laws and different medical interventions. This is not a medically sound policy and it is at odds with the District’s response to the HIV epidemic. It is just AIDS panic.

Addressing Needs without Panic

The Council should take advantage of the opportunity that this bill presents to ensure that HIV testing is routine and standard, and not punitive or mandatory.

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 help inmates, their families, and their community we need comprehensive health care in our jails.

I recommend that the Committee amend the bill to delete the Act, Title 22 Chapter 39.

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

Supplimental Testimony submitted for the record by Bob Summersgill on the
“Criminal Code Amendments Act of 2010,” B18-0963
To the Committee on Public Safety and the Judiciary, October 5, 2010

Chairman Mendelson:

Please accept this email as supplemental testimony on the “Criminal Code Amendments Act of 2010,” B18-0963. At the hearing, you asked for the CDC Guidelines in treating victims of sexual assault in regard to HIV; and if laws similar to the “HIV Testing of Certain Criminal Offenders Act of 1995,” (D.C. Law 11-74, D.C. Official Code §22-3901) exist in other states. Additionally witnesses from the U.S. Attorney’s Office and the Office of the Attorney General spoke in favor of retaining §22-3901 in the Code and having it apply to people merely accused of sexual assault. There arguments are not convincing.

The Centers for Disease Control and Prevention last updated their treatment guidelines for Sexual Assault and STDs on August 4, 2006.

CDC Treatment Guidelines 2006: One of the important points in the treatment guidelines is that transmission of HIV is rare.

Trichomoniasis, BV, gonorrhea, and chlamydial infection are the most frequently diagnosed infections among women who have been sexually assaulted. …

Risk for Acquiring HIV Infection
HIV seroconversion has occurred in persons whose only known risk factor was sexual assault or sexual abuse, but the frequency of this occurrence is probably low. In consensual sex, the risk for HIV transmission from vaginal intercourse is 0.1%–0.2% and for receptive rectal intercourse, 0.5%–3% (219). The risk for HIV transmission from oral sex is substantially lower. Specific circumstances of an assault might increase risk for HIV transmission (e.g., trauma, including bleeding) with vaginal, anal, or oral penetration; site of exposure to ejaculate; viral load in ejaculate; and the presence of an STD or genital lesions in the assailant or survivor.

Children might be at higher risk for transmission because child sexual abuse is frequently associated with multiple episodes of assault and might result in mucosal trauma (see Sexual Assault or Abuse of Children).

The CDC does not recommend singling out HIV for special consideration to the exclusion of all other STDs. Rather HIV is one of several diseases which may be transmitted, and not transmitted as often as several others. The testing only of HIV in §22-3901 is not consistent with CDC guidelines.

The treatment guidelines point out that the use of Postexposure Prophylaxis (PEP)—two or three pills per day for 28 days—should be based on a range of factors related to the likelihood of HIV transmission during the assault:

The likelihood of the assailant having HIV, any exposure characteristics that might increase the risk for HIV transmission, the time elapsed after the event, as well as potential benefits and risks the PEP are all factors that will impact the medical recommendation for PEP and impact the assault survivor’s acceptance of that recommendation (58). Determination of assailant’s HIV status at the time of the assault examination will usually be impossible. Therefore, the health-care provider should assess any available information concerning HIV-risk behaviors of the assailant(s) (e.g., a man who has sex with other men and injecting-drug or crack cocaine use), local epidemiology of HIV/AIDS, and exposure characteristics of the assault. When an assailant’s HIV status is unknown, factors that should be considered in determining whether an increased risk for HIV transmission exists include 1) whether vaginal or anal penetration occurred; 2) whether ejaculation occurred on mucous membranes; 3) whether multiple assailants were involved; 4) whether mucosal lesions are present in the assailant or survivor; and 5) other characteristics of the assault, survivor, or assailant that might increase risk for HIV transmission.

In this respect, the government witnesses are correct in wanting to determine the HIV status of the alleged assailant as soon as possible. However, their recommendation that arrested suspects be tested is deeply flawed. First, as pointed out at the hearing, it would be rare to have a suspect in custody within 72 hours. After 72 hours, PEP is not recommended. (See the recommendations from the U.S. Department of Health and Human Services, January 21, 2005, below.) Getting the results of the test are not even physically possible within 72 hours. Assuming that all of the legal steps required for testing are followed in record time; the law requires that a blood test be administered. A blood test for HIV antibodies takes about a week to get results.

§ 22-3902. Testing and counselling. [sic]

(a) Upon the request of a victim, the court shall order any individual convicted of an offense, as defined by § 22-3901, to furnish a blood sample to be tested for the presence of HIV.

(b) The court shall promptly notify the Mayor of any court order for an HIV test. Upon receipt of a court order for an HIV test, the Mayor shall promptly collect a blood sample from the convicted individual and conduct an HIV test on the blood sample.

(c) After conducting the HIV test, the Mayor shall promptly notify the victim and the convicted individual of the results of the HIV test. The Mayor shall not disclose the results of the HIV test without also providing, offering, or arranging for appropriate counselling and referral for appropriate health care and support services to the victim and the convicted individual.

Second, as I testified two years ago on the Omnibus Anti-Crime Amendment Act of 2009, Bill 18-0138, testing of suspects for HIV would strip away the presumption of innocence.

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.”

It is also possible that false charges might be made to find out about a consensual partner’s HIV status.

The ACLU had similar testimony on section 216 of the bill. I very much appreciate you removing that section of the bill.

There are laws similar to §22-3901 in 36 states, according to the National Center for Victims of Crime, which favors these laws.

In recent years, most states have enacted laws concerning the testing of criminal offenders and their victims for infection and transmission of the human immunodeficiency virus (HIV). HIV causes acquired immune deficiency syndrome, (AIDS). Such laws were passed in response to the recognized possibility of the transmission of HIV/AIDS during sexual assault or abuse, as well as other crimes where an exchange of bodily fluids takes place. They were also the result of a new understanding of the added trauma a sexual assault victim endures when faced with the possibility of having contracted a terminal disease. In a study conducted by the National Center for Victims of Crime and the National Crime Victims Research and Treatment Center, 40 percent (40%) of sexual assault victims indicated that the fear of contracting HIV/AIDS was a major concern.

In general, crime victim-related HIV laws require the testing of alleged and convicted sex offenders for HIV/AIDS, and the disclosure of the results of the offenders’ tests to the victims. By 1997, 45 states and the District of Columbia had adopted laws requiring HIV /AIDS testing of sexual offenders, if certain conditions are met, in cases involving sexual penetration or other exposure to an offender’s bodily fluids. Some of those apply to pre-conviction testing, others to post-conviction testing, and some states have laws that apply both pre-conviction and post-conviction.

Thirty-six states have laws that apply to convicted adult offenders or adjudicated juvenile offenders in sexual assault cases:

Alabama; Arkansas; Arizona; California; Connecticut; District of Columbia; Florida; Georgia; Illinois; Indiana; Iowa; Kansas; Kentucky; Louisiana; Maine; Maryland; Michigan; Minnesota; Mississippi; Missouri; Montana; Nebraska; New Hampshire; New Jersey; New Mexico; New York; Oregon; Pennsylvania; Rhode Island (mandatory for persons sentenced to prison); South Carolina; Utah; Virginia; Washington; West Virginia; Wisconsin; and Wyoming.

Eighteen of the states require testing of those arrested or indicted for an offense:

Alaska; Arizona; Colorado; Delaware; Florida; Idaho; Kansas; Louisiana; Michigan; Nevada; New Jersey; North Carolina; North Dakota; Ohio; Oklahoma; Tennessee; Virginia; and Wisconsin.

Some states require testing both upon arrest and upon conviction, or make testing at one point discretionary and the other mandatory. South Dakota and Texas do not require testing at any stage, but give courts discretion to order testing at the pre-conviction stage.

The National Center for Victims of Crime and the government witnesses do not make the case that this law serves any purpose in law enforcement. Indeed, §22-3902(e) prohibits the use of the test in any criminal case.

(e) The result of any HIV test conducted under this section shall not be admissible as evidence of guilt or innocence in any criminal proceeding.

The laws are not useful for law enforcement, but they are a direct response to AIDS panic. The statement, “40 percent (40%) of sexual assault victims indicated that the fear of contracting HIV/AIDS was a major concern”, shows that the laws are not based on actual medical benefit, but rather in responding to perception that AIDS is “a terminal disease.” HIV disease is not terminal. It is a manageable, long-term disease. Most people receiving medical care will live long enough to die of other causes. Instead of helping to reduce this stigma, these laws help reinforce it.

The government witnesses disputed my testimony that §22-3901 would result in violations of medical privacy. §22-3902(d) states:

The victim may disclose the results of the HIV test to any other individual to protect the health and safety of the victim, the victim’s sexual partners, or the victim’s family.

The victim, notified of the results of the HIV test, is free to notify anyone they choose about the assailant’s HIV status. Even if it could be established that the disclosure to the public would not “protect the health and safety of the victim, the victim’s sexual partners, or the victim’s family,” there is no penalty for disclosing the information, and nothing at all to stop a friend from posting the information on the internet.

The government witnesses also spoke to the treatment of victims to PEP, likening it to the painful injections that one would receive to avoid rabies. However PEP is two or three pills a day for 28 days that are usually well tolerated. The CDC writes:

Providers should emphasize that PEP appears to be well-tolerated in both adults and children and that severe adverse effects are rare.

There are possible side-effects to PEP, similar to those experienced by anyone taking HIV medications. However, the current standard treatment for HIV is one pill, once a day, with no side effects.

The government witnesses also tout §16-2315(f) as model legislation that should be expanded. All of the deficiencies of §22-3901 remain in this section of Code, and more are added on.

§ 16-2315. Physical and mental examinations.
(f) Upon request of the Corporation Counsel, or his or her designee, the Division shall hold a hearing to determine whether there is probable cause to believe that a victim or eyewitness to a delinquent act alleged to have been committed by the respondent may have been put at risk for the HIV/AIDS virus. If the Division finds there is probable cause that a victim or eyewitness has been put at risk for the HIV/AIDS virus as a result of witnessing or being the victim of the delinquent act alleged to have been committed by the respondent, the Division shall order that the respondent be tested for the HIV/AIDS virus. The results of the child’s HIV/AIDS testing shall be presented to the Corporation Counsel, or his or her designee, who shall provide the information to the respondent and to the victim or eyewitness to a delinquent act. The victim or eyewitness may only disclose the respondent’s identity to a doctor or counselor.

It is impossible to be infected with HIV by being an eyewitness. That this section of code came to be written is exclusively a result of AIDS panic. This section does not presume that the victim was exposed within 72 hours, so PEP is not a factor. The victim here, as in §22-3901, needs to be tested for HIV—and other diseases—and treated if appropriate. But the HIV status of an alleged assailant in this situation does not provide any useful information. It does not let a doctor know if the victim is HIV+, or if they have any other sexually transmitted disease. I strongly support repealing this section of code as well.

The proponents of §22-3901 and §16-2315(f), and the similar laws in other states, are not public health officials. The government witnesses have no background or expertise in healthcare. However, they are presumably concerned about the HIV epidemic and are ready to use any tool available to help prevent the spread of the disease. Unfortunately, these laws have absolutely no value in healthcare or law enforcement. They are merely punitive. They are expressions of irrational AIDS panic and should not be in the law. HIV is not a crime; it is a disease. Responding to it should be a matter of the Department of Health and not the U.S. Attorney’s Office or the Office of the Attorney General.

Thank you for the opportunity to respond the other witnesses.

-Bob Summersgill

Antiretroviral Postexposure Prophylaxis After Sexual, Injection-Drug Use, or Other Nonoccupational Exposure to HIV in the United States
Recommendations from the U.S. Department of Health and Human Services, January 21, 2005.

The most effective means of preventing human immunodeficiency virus (HIV) infection is preventing exposure. The provision of antiretroviral drugs to prevent HIV infection after unanticipated sexual or injection-drug--use exposure might be beneficial. The U.S. Department of Health and Human Services (DHHS) Working Group on Nonoccupational Postexposure Prophylaxis (nPEP) made the following recommendations for the United States. For persons seeking care <72 hours after nonoccupational exposure to blood, genital secretions, or other potentially infectious body fluids of a person known to be HIV infected, when that exposure represents a substantial risk for transmission, a 28-day course of highly active antiretroviral therapy (HAART) is recommended. Antiretroviral medications should be initiated as soon as possible after exposure. For persons seeking care <72 hours after nonoccupational exposure to blood, genital secretions, or other potentially infectious body fluids of a person of unknown HIV status, when such exposure would represent a substantial risk for transmission if the source were HIV infected, no recommendations are made for the use of nPEP. Clinicians should evaluate risks and benefits of nPEP on a case-by-case basis. For persons with exposure histories that represent no substantial risk for HIV transmission or who seek care >72 hours after exposure, DHHS does not recommend the use of nPEP. Clinicians might consider prescribing nPEP for exposures conferring a serious risk for transmission, even if the person seeks care >72 hours after exposure if, in their judgment, the diminished potential benefit of nPEP outweighs the risks for transmission and adverse events. For all exposures, other health risks resulting from the exposure should be considered and prophylaxis administered when indicated. Risk-reduction counseling and indicated intervention services should be provided to reduce the risk for recurrent exposures.

See also: What is Post Exposure Prophylaxis (PEP)?

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