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Informative as Possible--Without Getting Reckless : How to cope with the tricky, sensitive issue of AIDS notification

January 30, 1994

Over the years of the AIDS epidemic, the disease has been diagnosed in nearly 340,000 Americans. Of that number, according to the federal Centers for Disease Control and Prevention, 205,000 have died. The World Health Organization reports that 8 million to 10 million people worldwide are infected with HIV, the human immunodeficiency virus that causes AIDS. Acquired immune deficiency syndrome is a fatal and horrific disease for which there now is no cure. Its tragedy features a pronounced irony: One of the ways in which its seemingly inexorable advance can be checked is by ensuring the confidentiality of the tests that detect it.

A LONG-SILENT KILLER: Simply put, it is vitally important for individuals to be tested for the AIDS virus if they suspect they have been exposed. Part of the reason is that the disease can incubate within the body for a decade or more without causing symptoms. Such asymptomatic carriers unwittingly can spread the disease to many others. It has been demonstrated that only if there is confidentiality will large numbers of people come forward to be tested. Without such assurances of secrecy, many of those who might be infected decline to be tested, hastening the spread of AIDS.

It is precisely that area of confidentiality that is now under attack in the case of a serial-rapist suspect being tried in a Van Nuys courtroom. He is suspected of having raped as many as 15 women in the east San Fernando Valley between August of 1991 and his arrest in January, 1992. He has been formally charged with six of these attacks.

The same confidentiality laws--part of the state health and safety code--that encourage people to seek HIV tests, and that make it illegal to disclose the results of such tests without authorization, also protect the suspect in this case. Because of another statute, Section 1524.1 of the state penal code, only the women who figure in the formal rape charges can petition the court to have him tested for HIV infection. And only those women are allowed to know the results of that test. Four of the women involved in the charges against the accused took those steps two years ago and were able to learn whether their alleged attacker tested positive for the AIDS virus. But in instances where formal rape charges are not brought--usually because the prosecution fears its case is weak--the victims cannot learn whether their supposed attacker was infected. Obviously, this profoundly disturbs some victims.

"Those victims have a right to know. They are going to spend the rest of their lives wondering if and when they are going to come down with it," a police detective said. This is far from the fact. Actually, although AIDS can have a long incubation, HIV infection is detectable within three to six months of exposure.

The alleged rapist in the Van Nuys case was arrested two years ago. None of the women involved have reported testing positive for the virus. According to medical experts, if they have not tested positive for the virus after more than two years, they will never develop AIDS from that contact.

It is not as though the confidentiality laws expressly forbid the notifying of alleged rape victims, even in situations where a formal charge of rape has not been filed. Section 199.25 of the state health and safety code states that medical professionals will not be held criminally liable for telling alleged rape victims that they have had sexual contact with an infected person. The only stipulation is that the alleged victim cannot be told that it might have been the alleged rapist. In this case, county health officials have sent letters to some or all of the nine women who reported being raped and who are not involved in the six charges against the defendant; the letter tells them that they may have been infected with the AIDS virus but not by whom.

THE TORTURE OF NOT KNOWING: "You can imagine a rape victim who gets a letter like this and doesn't know. 'Was it the suspect? My husband? My boyfriend?' " a prosecutor asked rhetorically. One option for authorities in multiple-rape cases is to bring formal charges related to all the attacks, thus allowing all the alleged victims to petition the court for an AIDS test for the suspect and to learn the results. But there is no reason to wait that long to find out whether one has been infected. If one has been sexually assaulted, one should be tested.

The state penal code requires local governments to counsel rape victims to help them determine whether they should seek to have the accused tested for AIDS. It is at that time that the victims ought to be urged to take the test as well, at no charge.

The confidentiality laws on AIDS and health status might serve as a barrier to knowing whether an alleged rapist has the HIV virus. They are no barrier at all to self-knowledge, and that is of preeminent importance here.

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