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February 14, 2013
From the Owensboro Messenger-Inquirer:
Posted: Thursday, February 14, 2013 12:00 am
By James Mayse
A bill that gives victims of sexual assault the right to demand their alleged attacker be tested for HIV and sexually transmitted diseases was approved by the House Judiciary Committee Thursday afternoon in Frankfort, although some committee members worried that such a law would be unconstitutional.
House Bill 107 gives the victim of sexual assault — or the parents or guardian of the victim if the victim is a minor — the right to ask the judge to order the defendant in the case be tested. The defendant would have to be tested within 48 hours of the judge’s order.
State Rep. John Tilley, a Hopkinsville Democrat and chairman of the House Judiciary Committee, said, if approved, the law would provide an immediate way for a victim to know if medical treatment for HIV or sexually transmitted diseases is needed.
Christopher Cohron, legislative director for the state Commonwealth’s Attorney’s Association, said prosecutors already compel defendants in certain sexual assaults to undergo testing for HIV and sexually transmitted diseases. Currently, prosecutors must obtain a warrant to have the defendant tested.
“What this legislation allows us to do is what, in essence, we’re already doing,” Cohron said. When asked why a new law was needed for something prosecutors can do anyway, Cohron said the bill “takes a step out of the process. It streamlines it — it makes it a court procedure (instead of) a search warrant procedure.”
State Rep. Brent Yonts, a Greenville Democrat and judiciary committee member, said he had concerns about the bill.
“We’re still saying with this bill that prior to conviction, a test may be ordered,” Yonts said. “I believe that’s unconstitutional.”
Ernie Lewis, head of the Kentucky Association of Criminal Defense Lawyers, said he was concerned about how the test results would be used.
“Can this evidence of HIV be revealed publicly?” Lewis asked. “Is it admissible at trial? Is it admissible in the penalty phase of a felony trial?
“I think this seriously prejudices the right to a fair trial,” Lewis said.
State Rep. Joni Jenkins, a Shively Democrat, said the test results would be made available only to the victim — or the victim’s family or guardian if the victim is a juvenile.
“The prosecution is going to get (the results) some way,” Yonts replied.
MaryLee Perry Underwood, staff attorney for the Kentucky Association of Sexual Assault Programs, said: “I don’t see how an offender’s HIV status is going to be relevant” at trial.
“The fact that this test has been conducted isn’t necessarily relevant to the innocence or guilt” of the defendant, Underwood said. “The fact that a blood test is conducted is one more piece of information that may or may not come into the trial.”
Yonts voted against the bill, which will be scheduled for a vote in the full House.
James Mayse, 691-7303, [email protected]
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