June 6, 2008
Under a measure being considered by the state Legislature, an accused sex offender would have to submit -- in response to a court order or a request by the alleged victim -- to HIV testing within 48 hours of arrest. As deemed appropriate, defendants -- including those who initially test negative -- would also have to undergo follow-up testing. The bill cleared the House Judiciary Committee on Thursday.
The bill would eliminate a current state law's requirement that some indication of potential viral transmission -- such as the exchange of bodily fluids -- take place before testing could be ordered. The bill would also require testing around the time of arrest, instead of around the time of arraignment. It would apply to anyone arrested for a crime involving sexual intercourse or sexual contact. Unless declared indigent, the accused would have to pay for the testing.
Passing the measure would pave the way for Delaware to continue receiving up to $500,000 a year in federal grants under the Violence Against Women Act, said Elizabeth Olsen, deputy secretary of the state Department of Safety and Homeland Security.
The committee's vote followed a discussion of the bill's potential impact on defendants who have not been convicted. Deputy Attorney General Tina Showalter noted, "There's a whole lot of things we infringe upon showing of probable cause, including your liberty."
State American Civil Liberties Union Executive Director Drewry Fennell, who did not attend the meeting, raised several questions about the legislation. "There are some practical challenges when you're talking about people who are charged but not convicted," she said. ACLU's concerns include the confidentiality of the defendant's medical information, the ability of defendants to receive proper treatment for HIV, and former inmates' access to HIV medication upon release from prison.