Del. Brewer seeks to reinstate testing law for people accused of sex crimes

Published 5:43 pm Tuesday, December 27, 2022

Del. Emily Brewer, R-Isle of Wight, has proposed reinstating a Virginia law that would allow a commonwealth’s attorney to ask that a person charged with sex crimes be tested for sexually transmitted diseases

Brewer on Dec. 8 prefiled House Bill 1416, which states that “as soon as practicable following arrest” a commonwealth’s attorney may request that a suspect accused of certain sex crimes be tested for sexually transmitted diseases, and seek a court order mandating the testing if the suspect refuses. Brewer’s bill would apply to any sexual assault, sex crimes against children and any assault and battery that exposes a victim to bodily fluids from the accused.

Brewer’s bill would reinstate the language of Virginia Code 18.2-62, which had been state law from 1990 through 2021. In 1990, according to the U.S. Centers for Disease Control and Prevention, AIDS diagnoses reached 17.2 per 100,000 people, accounting for one-fourth of all cases reported since the 1981 discovery of the human immunodeficiency virus. That same year, Congress passed the Ryan White Comprehensive AIDS Resources Emergency Act, named for an Indiana teenager who acquired the disease from tainted hemophilia medication.

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The Ryan White Act allocated federal public health funds to states on the condition that they enact laws criminalizing the spread of the disease. Ten years later, after initially proposing the legislation in 1997, Virginia enacted its “infected sexual battery” law in 2000, making it a Class 6 felony for a person diagnosed with a sexually transmitted infection to engage in sexual behavior “with the intent to transmit the infection.”

State Sens. Mamie Locke, D-Hampton, and Jennifer McClellan, D-Richmond, had proposed in 2021 as Senate Bill 1138 that Virginia lower its penalty to a misdemeanor, contending to media outlets that the law stigmatizes HIV-positive people and disproportionately affects the LGBTQ community and people of color. The bill further proposed repealing the law that had allowed commonwealth’s attorneys to seek a court order compelling sex crime suspects to undergo testing. While the version reconciled in the House of Delegates ended up keeping the Class 6 felony penalty, the repeal of the testing law made it into the version signed by former Gov. Ralph Northam last year.

Brewer’s bill would apply to more than just HIV, defining “sexually transmitted infections” to include “chlamydia, gonorrhea, syphilis, trichomoniasis, human immunodeficiency virus, hepatitis B and C viruses, human papillomavirus, genital herpes, and any other sexually transmittable disease determined by the Board of Health to be dangerous to the public health.”

Should a court order a test, the court’s finding “shall not be evidence in any proceeding, civil or criminal,” Brewer’s bill states. The result of the test “shall be confidential,” but will be disclosed to any victim. The test results would “not be admissible as evidence in any criminal proceeding.”

According to Brewer’s campaign manager, Nathaniel Hirt, Brewer took up the issue of reinstating Virginia’s STD-testing law after seeing an Aug. 1, 2022, story by CBS affiliate WTKR. A Norfolk woman told WTKR that she’d been raped earlier this year and that the cocktail of HIV prevention medication she’d been taking for weeks following the assault was itself making her sick. Her attorney, Kevin Keller, blamed the change in state law for his client’s predicament, contending to WTKR that prior to 2021, the state could have provided her with answers much sooner by testing the suspect for sexually transmitted diseases.

Advocates for HIV-positive people, according to reporting by the Virginia Mercury, had pushed for a full repeal of the “infected sexual battery” law in 2021, arguing the burden of proof for “intent” and one- to five-year prison sentence that comes with a Class 6 felony conviction, rather than deterring the spread of HIV, only deters HIV-positive people from seeking out testing or treatment.

According to the National Institute of Allergy and Infectious Diseases, people living with HIV who take antiretroviral medications daily as prescribed can drop their viral loads to undetectable levels, resulting in “effectively no risk” of transmitting the disease to an HIV-negative partner.