Court of Appeal Upholds Secrecy of AIDS Test Results

The secrecy of AIDS test results is sacrosanct in California, a state appellate court ruled Monday, even when the test subject is suspected of having purposely bitten a police officer in order to transmit the deadly virus.

In a precedent-setting ruling hailed by gay rights activists and derided by prosecutors, the 4th District Court of Appeal rejected an attempt by the San Diego County district attorney’s office to compel the release of a gay San Francisco man’s AIDS test results for use in a battery prosecution.

The case involved Brian Barlow, charged with biting two San Diego police officers during a confrontation between marchers and fundamentalist counterdemonstrators at the city’s annual Gay Pride Parade last June.

Objected to Testing

Afterward, Barlow, a communications consultant, told a police investigator, “You better take it that I’ve got AIDS for the officers’ sake.” He unsuccessfully fought a police effort to draw a blood sample from him for AIDS testing and continued to object to the testing of the blood and the release of the results.

Prosecutors said their main objective in seeking the blood test was to determine if the officers had been exposed to the acquired immune deficiency syndrome virus. If the test showed Barlow was a carrier of the disease, they acknowledged, they might have escalated the charges against him to attempted murder or assault with the intent to commit great bodily harm.

Defense lawyers insisted, however, that testing Barlow’s blood would not determine conclusively if the officers had been exposed to AIDS. They noted, too, that there was no medical evidence that AIDS can be transmitted by a bite.

Most important, the defense--joined in friend-of-the-court briefs by the American Civil Liberties Union and National Gay Rights Advocates, a legal defense organization--contended that a state law enacted in 1985 imposes an ironclad bar against releasing the results of AIDS antibody tests over the objection of the subject.

In the first decision of its kind in a California court, the appellate judges upheld the defense on every issue.

“Disclosure of results of tests of blood for AIDS antibodies is flatly prohibited by law,” said the unanimous decision, written by Justice Edward Butler for a three-judge panel.

The judges held that there is no exception for criminal prosecutions or in instances where public health and safety are at risk.

“While some cultures require a leper to ring a bell to warn the passer-by, our Legislature has not so stigmatized the victims of AIDS. Our skies are not black with smoke from cities burned to prevent the spread of plague,” Butler wrote.

The judges said that blood drawn from Barlow five weeks after the biting incident could not, in any event, provide evidence of whether he was an AIDS carrier at the time of the biting and thus might have intended to infect the officers. The best way to determine if the officers were infected by Barlow, they said, would be to test their blood, not Barlow’s.

Gay rights advocates said the decision--by upholding the privacy provisions of the testing law--would weigh against efforts by police agencies, insurance companies and employers to require mandatory AIDS testing in a variety of circumstances.

“It shows the courts are not going to be swayed by AIDS hysteria,” said Benjamin Schatz, director of the AIDS Civil Rights Project of National Gay Rights Advocates. “The Constitution does not disappear, the laws do not disappear and, hopefully, common sense does not disappear either.”

Prosecutors had not decided Monday if the decision would be appealed to the California Supreme Court. They sharply rejected the appellate court’s reasoning, however.

“I think it’s an absurd result--that defendants can hypothetically infect police officers and others with impunity,” said Deputy Dist. Atty. Peter Lehman, chief of the appellate division of the district attorney’s office. “That is not the intent of the law. That is not the meaning of the law.”