Special considerations for sex offenders - Columbia Law School

More documents

Recommendations

Info

New York law usually protects you from being forced to submit to an HIV test unless youhave already been convicted of a sex offense. But, if you tell your victim about your HIVstatus, then a court may be willing to force you to take a test before conviction, because thecourt may find you have made your medical condition an issue and therefore have given upyour right to confidentiality. 46(b) FederalAccording to federal law, a victim may also request HIV testing of a convicted sexoffender. The 1994 Violence Against Women Act (VAWA) allows victims of certain sexoffenses the right to obtain an order in federal district court requiring that the defendant betested for HIV, and requiring that the results of the test be communicated to both the victim(and/or the victim’s parent or legal guardian) and the defendant. 47 There are two importantfeatures of VAWA. First, VAWA differs from New York law in one important way: VAWAallows a court to order testing of a defendant before he/she is convicted of the act in question,whereas New York State only authorizes testing the defendant after conviction. Second,although VAWA is a federal law, it applies to accused sex offenders who are being prosecutedin state court under state criminal laws. 48Despite VAWA’s increased chances for victims to compel defendant HIV testing, mostvictims in New York have continued to file under the more restricted New York State statutegoverning defendant HIV testing. This trend is probably because New York State law isgenerally considered sufficient.Some provisions of VAWA have been challenged in federal courts. 49 At the time of thiswriting, the federal testing provision still applies and has been upheld specifically for sexoffenders by the Third Circuit Court of Appeals. 50 But, another VAWA provision regardingfederal remedies for victims of gender-motivated violence has been invalidated by theSupreme Court in United States v. Morrison. 51 In light of United States v. Morrison, achallenge to the VAWA’s informational testing might succeed. You should, therefore, look forproven, the only way to tell if the victim had been infected with HIV would be to test the victimhimself)); Doe v. Connell, 179 A.D.2d 196, 199–200, 583 N.Y.S.2d 707, 710 (4th Dept. 1992) (holdingthat prosecution could not force the defendant, who was charged with rape and sodomy but not yetconvicted of the crimes, to provide blood for an HIV test sought by the alleged victim and her husband);In re Harry G., 157 Misc. 2d 959, 960–61, 599 N.Y.S.2d 425, 426 (Fam. Ct. Broome County 1993)(denying request to require the defendant, accused of sexually assaulting a young boy, to submit to anHIV test on the grounds that there needed to be evidence suggesting the accused had HIV, and ageneral fear on the part of the alleged victim was not enough).46. People v. Durham, 146 Misc. 2d 913, 916, 553 N.Y.S.2d 944, 946 (Sup. Ct. Queens County1990) (ordering defendant to be tested for HIV after he disclosed to his rape victim that he had HIV andthus placed his medical condition at issue); In re Gribetz, 159 Misc. 2d 550, 553, 605 N.Y.S.2d 834, 836(County Ct. Rockland County 1993) (holding that test results were needed to prove defendant had actedrecklessly and with depraved indifference to human life, and that the defendant had waived her rightto privacy since she had already discussed her HIV status).47. 42 U.S.C. § 14011(b)(1) (2006). Note that VAWA consists of several subtitles, which can befound throughout the United States Code. Only the subtitle relevant to HIV testing of prisoners is citedhere.48. 42 U.S.C. § 14011(b)(2)(a) (2000).49. For example, in United States v. Morrison, 529 U.S. 598, 626–27, 120 S. Ct. 1740, 1758–59,146 L. Ed. 2d 658, 681–82 (2000), the Supreme Court invalidated 42 U.S.C.A. § 13981(c), the portion ofVAWA that provides a civil remedy to victims of gender-motivated violence.50. United States v. Ward, 131 F.3d 335, 342–43 (3d Cir. 1997).51. Under the U.S. Constitution, Congress may only enact laws pursuant to specific powerslisted in the Constitution. See United States v. Morrison, 529 U.S. 598, 627, 120 S. Ct. 1740, 1759, 146L.Ed.2d 658, 682 (2000) (holding that neither the Commerce Clause nor section 5 of the 14thAmendment gave Congress the authority to create a federal civil remedy under 42 U.S.C. § 13981 forthe victims of gender-motivated violence).
ecent case law on this testing provision of VAWA to be sure it still applies. Also, VAWA wasamended in 2006. Be sure to consult the most recent version of the statute if you believe itapplies to your case.2. Evidentiary Testing LawsIn many states it is a crime for a person who knows he is HIV positive to engage inintimate contact with another person without disclosing his HIV status. 52 Statescriminalizing HIV transmission generally focus on whether a person who knows he isinfected with HIV exposes another person to the HIV virus through:(1) sexual behavior;(2) sharing hypodermic needles or other drug paraphernalia; or(3) donating blood or other bodily fluids. 53In states that criminalize HIV transmission, the court must order an HIV test in order toprove one element of the crime (that is, that you are HIV positive). In such situations, theHIV test results may be used against you in your criminal case. 54E. Post-Conviction DNA TestingFar more than for other crimes, investigations of sex offenses often involve the collectionof bodily fluids such as semen or blood. These fluids can then be submitted for DNA tests,which may provide information used to identify likely perpetrators. If you have beenconvicted of a sex offense and you are contesting your conviction, DNA evidence may beavailable to you to help prove your innocence. In recent years, post-conviction DNA testinghas attracted national attention because a number of prisoners have been released afterdemonstrating their innocence using DNA testing of evidence associated with their trials.Many of those defendants were convicted before DNA technology became available. See JLMChapter 11, “Using Post-Conviction DNA Testing to Attack Your Conviction or Sentence,” formore detailed information.F. Special Parole Considerations1. Parole GenerallyParole refers to the discretionary release of a prisoner from prison before he has servedhis full sentence. 55 In New York and elsewhere, if you are released on parole, the state parole52. See, e.g., Fla. Stat. Ann. § 775.0877(3) (West 2005) (allowing a defendant who was previouslyconvicted of a sexual offense and tested positive for HIV, who then committed a second sexual offense,to be charged with criminal transmission of HIV); Ga. Code Ann. § 16-5-60 (2003) (criminalizingbehavior by a person who knows that he is HIV positive, and then exposes another person to HIVthrough sexual behavior, sharing drug paraphernalia, or donating blood or other bodily fluids); 720 Ill.Comp. Stat. Ann. 5/12-16.2 (West 2002) (allowing a defendant to be charged with criminal transmissionof HIV, a class 2 felony, if defendant knows he is HIV positive and then engages in sexual contact,donates blood or other bodily fluids, or shares intravenous drug paraphernalia with another person);Iowa Code Ann. § 709C.1 (West 2003) (criminalizing as a class B felony the knowing transmission ofHIV positive bodily fluids or drug paraphernalia previously used by the person infected with HIV);Mich. Comp. Laws Ann. § 333.5210 (West 2001) (criminalizing “sexual penetration” by a person whoknows he is infected with HIV or AIDS and who does not tell his sexual partner about his infection).53. See, e.g., Ga. Code Ann. § 16-5-60(c) (2003).54. See, e.g., People v. C.S., 222 Ill.App.3d 348, 164 Ill.Dec. 810, 583 N.E.2d 726 (2d Dist. 1991)(noting that the positive results of the HIV test performed on defendant would be essential to a futureprosecution under state statute that prohibits those who know they are infected with AIDS from havingcertain conduct that has the potential of transmitting the virus.)55. Black’s Law Dictionary 1149 (8th ed. 2004); see also N.Y. Exec. Law § 259-a (McKinney 2005& Supp. 2006) (describing generally the organization and duties of the New York State Division ofParole).
Page 1 and 2: A Jailhouse Lawyer’sManualChapter
Page 3 and 4: CHAPTER 32SPECIAL CONSIDERATIONS FO
Page 5 and 6: assigned treatment program.” 14 A
Page 7 and 8: on any prisoner who has a sentence
Page 9: need for the test arises from a spe
Page 13 and 14: The pamphlet includes a “menu”
Page 15 and 16: town, and village) authorities, be
Page 17 and 18: did not just live there. 90 The cou
Page 19 and 20: Using the Sex Offender Registration
Page 21 and 22: (e) Additional AmendmentsA number o
Page 23 and 24: who SORNA applies to, and the deadl
Page 25 and 26: subject to “at least the duration
Page 27 and 28: (iii)The Public through the Nationa
Page 29 and 30: keeping requirements set forth in s
Page 31 and 32: Constitution. 185 In that case, the
Page 33 and 34: (1) The person must have engaged in
Page 35: commitment as a sexually dangerous

Special considerations for sex offenders - Columbia Law School

Create successful ePaper yourself

Delete template?

Save as template?