Friday, April 6, 2012

Insult to Injury

By Michael Tarrant

State v. Handy, 2012 VT 21

It does not take a great stretch of the imagination to believe that a victim of crime might experience after-effects following the initial criminal act itself.  Notwithstanding other concerns, when the crime at issue involves forced sexual acts, the fear of sexually transmitted diseases—including transmission of the AIDS virus—is not only perfectly legitimate, it’s beyond obvious.  Today’s case tests the constitutionality of a Vermont statute that allows victims of such crimes to obtain a court order requiring the convicted offender to submit to sexually transmitted disease testing.


The underlying facts to this appeal are as follow.  In November 2009, Defendant was convicted of lewd and lascivious conduct based on a non-consensual sexual encounter with the victim in a public place in October, 2007.  In March 2010, at the victim’s request, the State sought to compel Defendant to submit to testing for sexually transmitted diseases under 13 VSA § 3256.  

Following a hearing, the trial court issued an order granting the State’s motion for testing.  The trial court also confirmed the statute’s constitutionality.  It concluded that any results stemming from the testing could not be used against Defendant in a criminal matter and that if the results were positive, the victim could discuss the results with her medical providers, friends, family, and potential intimate partners.  Thus, the trial court limited disclosure of the results to only Defendant and the victim.  It further directed the test results and the record of the court proceedings to be sealed.

On appeal, Defendant argues that the trial court erred by concluding that the purposes underlying 13 VSA § 3256 constitute sufficient “special needs” to abandon the warrant and probable cause requirements under Article 11 of the Vermont Constitution.  He further argued that even if such special needs exist, they do not overcome Defendant’s constitutionally protected privacy rights.

For those unfamiliar with Vermont’s Constitution, Article 11 is Vermont’s analogue to the more familiar Federal Fourth Amendment regulating searches and seizures.  Both provisions apply when looking at the constitutionality of a statute but only to the extent that the more rigorous of the two applies.  In other words, a statute might not offend the Fourth Amendment but if it is not Kosher under Article 11, then it is still invalid.  Normally, you would expect a defendant challenging the constitutionality of a statute to use both Article 11 and the Fourth Amendment.  Its absence suggests that Defendant here found the relevant federal courts cases to have settled the issue that did not help Defendant’s cause.

The basic requirement of both the Fourth Amendment and Article 11 is that searches and seizures should not take place without a warrant supported by probable cause.  Citing a 2008 case, State v. Martin, the SCOV informs us that Article 11 is implicated here because the taking of a blood sample is unquestionably a “search” that triggers constitutional protections.

However, the SCOV reminds us that Article 11 does not proscribe all warrantless searches, but allows for certain exceptions.  One such exception is cases involving “special needs” beyond normal law enforcement.  This standard was first announced by Justice Blackman of the United States Supreme Court in 1987 and was adopted by the SCOV in State v. Berard in 1990.  

Under Berard, Article 11’s requirements of probable cause and a warrant will be disregarded when the State shows that special needs beyond normal law enforcement makes those requirements impracticable and that those special needs outweigh any countervailing privacy interests.

As to Defendant’s first argument, the SCOV agrees with the trial court that 13 VSA § 3256 serves special needs beyond those of law enforcement.  The SCOV cites to cases from other jurisdictions holding that the purpose of such statutes is directed at public health matters, not law enforcement.  In particular, the SCOV notes that the statute explicitly limits what the State can do with the samples in a manner that precludes any derivative law enforcement or criminal prosecution.

The SCOV also points out that requiring probable cause before ordering such testing would be highly impracticable—most sexually transmitted diseases, particularly the AIDS virus, do not exhibit outwardly manifest symptoms that would permit a probable-cause determination for obtaining a warrant.  Therefore, the requirement of probable cause would effectively negate the statute.

Defendant makes one final argument for requiring probable cause.  Unlike the situation in Martin—where the testing program targeted all felons for DNA collection—this statute targets particular individuals and thus must meet the requirements of probable cause and a warrant.  The SCOV disagrees with the distinction noting that the key here is that §3256, like the statute in Martin, permits testing based on one’s status as an offender. 

Having concluded that the statute does indeed serve special needs beyond those of law enforcement, the next step requires the SCOV to perform a context-specific balance of the competing public and private interests at stake.  Starting with the privacy interests of Defendant, the SCOV recognizes that convicted sex offenders have a diminished privacy interest—particularly in regards to the testing of their bodily fluids that they forced upon their victims in criminal sexual acts.  Additionally, the method of testing—a blood sample or cheek swab—is a relatively minimal intrusion.

The SCOV does recognize, however, one valid privacy interest of convicted sex offenders—the potentially devastating impact of a positive HIV or AIDS test.  Thus, mandatory testing and disclosure of HIV or AIDS status does have a privacy impact beyond the mere test, due to the social stigma that people who are HIV or AIDS positive often experience.

Thus, the SCOV concludes that the only valid privacy interest a convicted sex offender may have in the context of mandatory sexually transmitted disease testing is the extent of the public dissemination of the test results.

On the other side of this balancing test, of course, is the governmental interest in testing convicted sex offenders.  The SCOV starts off this evaluation with a series of questions:

·         How does the testing of sex offenders following conviction contribute to the State’s interest in public health and, more specifically, the well-being of the victims of sex crimes?

·         What is the nexus between testing offenders following conviction and providing relevant information to victims about their risk of contracting sexually transmitted infectious diseases?

·         Given that testing offenders after conviction apparently would not provide any information as to when a sexually transmitted disease was contracted relative to the timing of the sex offense for which they were convicted, how does the testing further the state’s public health interest?

None of these questions were addressed at the brief non-evidentiary hearing held below.  The trial court elected not to hear evidence on these questions because the victim’s right to know whether there is any dormant sexually transmitted disease trumps the offender’s claim of privacy.

Finding no support in the trial court record for a governmental interest, the SCOV begins its analysis by examining the legislative history of the bill enacted as 13 VSA § 3256.  According to the SCOV’s research, the mandatory testing for sexually transmitted diseases of convicted sex offenders was a controversial proposition that had been introduced and debated numerous times.  

Curiously, in 2001, the year the bill became law, there was testimony before the House and Senate Judiciary Committees—including testimony of an expert medical doctor specializing in infectious diseases—that the testing of sex offenders after conviction offered no medical benefit for victims due to the promptness with which such health care concerns need to be addressed following an assault.  Due to the timing between the commission of the crime and conviction, the victims should have already received such testing.

Interestingly, when presented with this information, the chairs of both the House and Senate Judiciary Committees acknowledged the apparent lack of medical usefulness, but nonetheless elected to incorporate the provision.  Why?  Well, they had 175,000 reasons per year to include it—“the State of Vermont would not be eligible to receive roughly $175,000 per year in federal grants to fund testing and counseling for sexual assault victims—as set forth in the second part of § 3256—unless the statute required testing the perpetrators.”

The SCOV notes that if this were in fact the sole reason behind the challenged portion of § 3256, then its constitutionality would be suspect as there would connection between the invasion of privacy and the information obtained.  There was additional testimony related to how sexual assault victims consider the concept of testing their assaulters.  The director of Crime Victim Services testified that although testing victims is the only way to ensure whether they in fact contracted any sexual disease, victims want the peace of mind that results from testing their attacker, and that a refusal to submit to such a test further compounds their sense of violation.

That is enough for the SCOV, and its legislative analysis ends.  Citing other courts that have recognized this psychological benefit to victims, the SCOV concurs with this line of thought and holds that so long as the trial court imposes certain restrictions regarding the dissemination of the test results, there is no constitutional violation.  The SCOV affirms the order of the trial court in all respects, except it is remanded to impose certain restrictions on the victim’s disclosure of any results from the testing of Defendant.

Chief Justice Reiber, joined by Justice Burgess, concurs in the conclusion that the statute is constitutional, but dissents regarding the order to remand.  The Chief raises two points of departure from the Majority: (1) by delving into the legislative history surrounding the statute, the Majority’s opinion exceeded the SCOV’s limits of review; and (2) there was no reason to remand for a protective order because the statute itself imposes restraint on the distribution of test results.

Here, the constitutional issue is whether there is a legitimate governmental interest supporting the warrantless search.  Thus, there is no need to look into the legislative intent—rather all the SCOV needed to conclude was whether there is a legitimate governmental interest.  The Dissent notes that statutes are presumed to be constitutional and that Defendant has the burden to show otherwise.  Here, because Defendant failed to adequately challenge the asserted State interest, the State had no further obligation to affirmatively make any further showing.  When the trial court can discern an adequate interest, it is sufficient regardless of the existence of other interests.

Additionally, the Dissent finds no reason to remand for a protective order preventing the victim from disseminating the results to anyone other than her medical providers.  The Chief notes that such a limitation is not in the statute.  The statute expressly limits distribution of the results to the offender and the victim and requires the court proceedings and results to be sealed. According to the Dissent, the legislature could have limited the dissemination further if it had wished, but there is no reason for the SCOV to do so, given the limited privacy interests of convicted sex offenders and that the victim’s use of the information could inform more effective treatment and inhibit further spread of any disease.  The Dissent sums up his feelings as such:

Having sexually assaulted the victim and deposited his DNA without consent—an act of physical harm if not also an implicit, if not explicit, waiver of confidentiality—the offender’s remaining privacy rights are sufficiently defined by the statute.  What the victim, a private citizen, does with the information afterwards was of no concern to the Legislature and, absent legislative direction to the contrary, is no business of this court.

This is but one opinion and one protective order, and it remains to be seen how future trial courts will interpret the SCOV’s imposition of a protective order on the victim here.  With new appointments to the SCOV, including the replacement of Justice Johnson, the author of this opinion, with Justice Robinson, it remains to be seen if future decisions will maintain this same split.

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