A Circuit Court judge has ordered all women in his court convicted of prostitution to undergo testing for the presence of AIDS antibodies, and is meeting criticism from civil libertarians and defense lawyers who contend that he is infringing on individual liberties and privacy.
Judge Bruce E. Schroeder said he expects the unusual policy to be challenged in higher courts, although none of the four women so far compelled to be tested for AIDS exposure has objected.
Schroeder is one of very few judges in the nation to require the tests. "I'm not a medical expert and don't claim to be," he said. "I'm just a country judge trying to do what's right."
Tests on two of the women have shown they do not have AIDS antibodies in their blood. Tests on the other two were not yet available.
Concern for Privacy
"We are concerned about personal privacy," said Milwaukee lawyer William Lynch, who represents Wisconsin on the national board of the American Civil Liberties Union. "We're deeply concerned about . . . disclosures that a person has AIDS," he said, adding that no decision on whether to formally challenge the policy has been made yet.
Schroeder responded: "This deification of so-called privacy rights that exists in this country today is really hampering necessary efforts to combat this disease." He said he also plans to order persons convicted of any sexual assault in which there was penetration to undergo the tests, which detect exposure to the HIV antibodies that can cause AIDS. A person who tests positive is presumed to be infected and to be infectious to others, but may never actually develop the disease.
Charles Bennett, a Wisconsin public defender, represented one woman ordered by Schroeder to take the test. He cited his concerns about the policy:
"Where do we draw the line? Do we start testing prostitutes, then test people who have used needles, then people who have homosexual tendencies? Maybe this judge won't do it but there are other judges. What if a guy comes in for disorderly conduct and a judge says you have to be tested for AIDS. I see that as a real danger.
Loss of Rights
"You lose your (rights) in little steps," Bennett added. "Once society accepts things like (AIDS exposure tests for prostitutes) it's easier to lose them in major steps."
Schroeder is not the first judge in the country to require AIDS exposure tests as a condition of probation. In San Antonio, Bexar County Judge Michael P. Peden said judges there have been requiring tests to detect such exposure as a condition of probation for prostitutes since last summer, and that the practice has not been challenged.
And in Atlanta, Fulton County Judge A.L. Thompson is offering convicted prostitutes reduced sentences if they consent to a battery of tests for sexually transmitted diseases including AIDS. Thompson does not, however, require that the results of the tests be reported to the court.
Schroeder said Wednesday that he did not know what action he would take if he does find a prostitute has the AIDS antibodies in her blood. Wisconsin law allows a maximum prison sentence of nine months and a maximum fine of $10,000 for each conviction on a prostitution charge.
Schroeder Tells Concern
Schroeder said he became concerned about the spread of AIDS from reading news accounts. "I figured, 'Wow, this is getting to be a serious problem,' " he said. "I don't agree with the concept that a person should be condemned to death because of seeing a prostitute . . . aside from that, certainly, his innocent wife or other person with whom he comes in contact don't deserve to die." And he said he was worried about the possibility that the disease would be passed on to unborn children.
The judge said he did not consider his policy "judicial activism."
"To me, judicial activism is where the judge changes the law to suit his own view of what it ought to be. In this case our law in Wisconsin says the judge can impose reasonable conditions on probation and I am of the opinion that this is reasonable."
Public defender Bennett believes that mandatory testing is a question of legislation and said that currently there is no legislation in Wisconsin requiring tests for exposure to AIDS. Efforts to pass laws requiring such tests in cases involving convicted prostitutes were voted down last year in Illinois and other states.
While Schroeder is the only one of six Kenosha County Circuit Court judges to routinely require the tests, the remaining five judges told the Kenosha News last Friday that they support the policy.
Kenosha County, with a population of 123,000, is an urban, industrial county in a generally rural state. Kenosha is located on the shore of Lake Michigan about midway between Chicago and Milwaukee.