36-D-1. Informational Tests
Different states have different regulations for informational HIV testing. States have different rules for when a test should be done, for who is allowed to find out about your test results, and for whether the results can be used in criminal proceedings. Some statutes allow the court to decide if you should be tested for HIV,36 while other statutes require the court to order testing if the victim requests it.37 In some states, testing is automatic.38
Some states do not allow test results to be shown to the court39 or used in criminal or civil proceedings against the defendant,40 but other states allow the use of HIV test results by the prosecution.41 Be sure to read a copy of the statute from your state in order to learn what the law is in relation to your case.
Some defendants have challenged statutes that allow pre- or post-conviction HIV testing against the defendant's wishes. They did so by claiming that these statutes violate the Fourth Amendment's ban on unreasonable searches. Most of the time, the courts have determined that these statutes are constitutional.42 Some courts say that some Fourth Amendment protections-warrant and probable cause-do not apply when (1) the reason for the test is a "special need" beyond ordinary law enforcement; and (2) that special need justifies the privacy intrusion.43
(a) New York
New York has its own laws about HIV testing. In New York, the nature of the testing depends on the status of your case. If you have not been convicted but there is an indictment or information filed, then the court must order you to take an HIV test at the victim's request, if it "would provide medical benefit to the victim or a psychological benefit to the victim." The results will be given to the victim and you, but not to the court.44 You may be required to take an HIV test even if there has been no showing that telling the victim about your HIV status would benefit the victim. This is because you have made your medical condition an issue and have given up your right to confidentiality.45 If you have been convicted of certain sex offenses, a separate law requires that a court order HIV tests at a victim's request.46 If you have been tested under a court order, the results of the test cannot be used against you in court.47
(b) Federal
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