AIDS, Rape, and the Fourth Amendment: Schemes for Mandatory AIDS Testing of Sex Offenders

Few subjects are as emotionally troubling as AIDS\u27 and rape. The latter, of course, has plagued society throughout human history, but AIDS only recently has imposed itself upon our social and medical consciousness. Ever since AIDS became a familiar sight in the headlines nearly ten years ago, society has reacted to it with a mixture of anxiety, confusion, and despair. One consequence of the new societal awareness is the increased hesitancy with which individuals approach intimate contact. When intimate contact is involuntary as in the case of rape, fear of exposure to the disease is especially pronounced. Society,however, seems ill-prepared to address rationally and uniformly the special problems faced by victims who fear they may have contracted AIDS as the result of rape.Given the fear surrounding AIDS, calls to test certain groups of people for evidence of the AIDS virus were inevitable. Responding to pleas from rape victims and victims\u27 rights advocates, a number of states have enacted mandatory AIDS testing programs for sexual of-fenders, sometimes as part of comprehensive AIDS legislation packages. Mandatory testing programs have proven problematic, however,because they often fail to provide for the defendant\u27s interests, which can include such concerns as confidentiality, privacy, and presumption of innocence. A definite tension arises in pitting the victim\u27s interests against the defendant\u27s rights and in deciding whose concerns should take precedence.\u27 No one has presented a uniform resolution to this question. Various approaches adopted by state legislatures reflect in-consistencies in dealing with the problem.\u2