In April, the New Jersey Superior Court, Appellate Division, upheld the validity of two New Jersey statutes that require AIDS and HIV testing of defendants charged, indicted, convicted, or adjudicated delinquent in sexual assault cases, if the victim requests the test. The court reversed Hudson County Family Court Judge Fuentes's decision that the statutes were unconstitutional, both facially and as applied, under the Fourth Amendment proscription against unreasonable search and seizure.
The ACLU-NJ, represented by Lenora M. Lapidus and John V. Jacobi, both Gibbons Fellows at the Newark law firm of Crummy, Del Deo, Dolan, Griffinger & Vecchione, participated in the case as amicus curiae. We argue that AIDS tests constitute searches within the meaning of the 4th Amendment, and that such searches, when conducted for non-law enforcement purposes, must be justified by a compelling state interest, must be limited to a scope that bears a close and substantial relationship to the interest, and can only be performed if the subject has a minimal expectation of privacy. Judge Fuentes agreed with us that the searches fail the second prong, basing his decision on the undisputed testimony of three experts that we presented.
Two doctors specializing in AIDS care of women and children testified at a November, 1994 evidentiary hearing that HIV testing of alleged sexual assailants was of no use to the victim because 1) testing would not reveal the HIV status of the assailant at the time of the assault; 2) a negative test result could leave the victim with a false sense of security, because the HIV antibodies that trigger positive test results do not show up immediately upon infection; and 3) a positive test result could needlessly cause the victim anxiety, because it does not mean the victim was actually infected. Crediting this testimony, the trial court found that the AIDS testing would not be useful for the diagnosis of the victim, and that the only way for the victim to know if she had been infected would be to be tested herself. The Executive Director of the New Jersey Coalition Against Sexual Assault also offered expert testimony that the testing would not help the victim in her psychological recovery from the attack, because it might needlessly cause anxiety or cause her to forego necessary testing.
In reversing the lower court, the Appellate Division characterized the expert testimony as “legislative facts” not entitled to the same deference usually accorded to a trier of fact's resolution of a dispute. The court therefore rejected their testimony, and held that the legislature could have viewed the tests as useful, and thus reasonable. The public defender has filed an appeal to the State Supreme Court, and the ACLU-NJ will continue to participate as amicus.