Proposition 96, the Communicable Disease Tests initiative, is intended to inform victims of assaults, including law-enforcement officers and prison staffs, whether they have been exposed to the Human Immunodeficiency Virus that causes AIDS. It is opposed by many public-health officials, by the California AIDS Leadership Committee and by the California Medical Assn. We share the misgivings of these professionals that have led to their opposition.
The thrust of the initiative is to permit the courts to order testing for AIDS and other communicable diseases for persons accused of specified sex offenses and assaults, including attacks on police and other emergency personnel and prison staffs. However, the most important elements of the initiative have, in the last month, been voted into law by the Legislature through adoption of SB 2643, sponsored by Sen. Gary Hart (D-Santa Barbara) and SB 1913, sponsored by Sen. Robert Presley (D-Riverside). Indeed, the bills are better drafted than the initiative, more precise in their provisions, and, in effect, make the initiative redundant.
Beyond that, there are defects in the initiative that, even without the passage of the legislation, would have made it unacceptable. The most serious flaw, we think, is inclusion of saliva as an agent for transferring HIV. This would raise the possibility of actions requiring testing of persons accused of spitting. Such a provision only encourages the false fears that have grown up around the disease despite the affirmation of public-health officials that it cannot be casually transmitted. HIV is transmitted by the direct exchange of blood or semen, or from mother to child in pregnancy. The legislation signed into law in September more accurately defines the risk by referring to blood, semen and other bodily fluids “capable of transmitting HIV.”
With both the legislation and the initiative, there may be serious constitutional challenges. The requirement for HIV testing is directed, not only at convicts, but against people merely accused of a crime, whose innocence is presumed. The demand for an intrusive blood test may raise the questions of unreasonable search and of self-incrimination, although the law explicitly prohibits use of the test results in any criminal proceeding as evidence of guilt or innocence. And there is the troubling public-health problem raised by the fact that the tests can have only a limited usefulness, yet may inspire a false sense of confidence. A person can carry the infection for several months before testing positive to HIV. A negative test today is no guarantee against infection tomorrow, and that applies equally to someone accused of assault and to the victim.
But the legislation at least provides for the kind of counseling that can clarify the limitations while guiding those who test positive toward behavior changes to minimize the risk of infecting others. And the fact that there is no cure for AIDS has appropriately justified special remedies in seeking to control its spread.
There seems no doubt that the corrective legislation would never have passed had not the initiative qualified for the ballots. The leadership for the initiative came from Los Angeles County Sheriff Sherman Block. His frustration over the failure of the legislature to act on the issue motivated his contribution. In that sense, the proposition stands as another symbol of the failure of the legislative process to work promptly and effectively on a crucial issue. Many Californians, who recognized the need for these remedies, appreciate his contribution. Nevertheless, it remains a flawed instrument now rendered essentially unnecessary.
We recommend a no vote on Proposition 96.