Important note: Information in this article was accurate in 1992. The state of the art may have changed since the publication date.
Los Angeles Times (LT) - FRIDAY December 4, 1992
PHILIP HAGER; TIMES LEGAL AFFAIRS WRITER
The justices held unanimously that mandatory testing for HIV, the virus believed to cause AIDS, is not punishment--and thus does not violate constitutional prohibitions against enacting new penalties for offenses already committed.
"That AIDS poses a major threat to the public health and safety is beyond debate," Justice Stanley Mosk wrote for the court. "The (minimal) discomfort a defendant will suffer when his blood is extracted can hardly be said to satisfy a thirst for revenge."
The justices, overturning an appeals court decision, gave broad application to a law requiring AIDS tests for people convicted of rape, sodomy or oral copulation. Offenders who test positive face an extra three years in prison for any repeat crime.
State officials said the decision could allow testing of hundreds or even thousands of sex offenders for crimes committed before the law went into effect in January, 1989.
"In light of the seriousness of the AIDS epidemic, this is a very important ruling," said state Deputy Atty. Gen. Pamela A. Ratner. "It will further discourage repeated sex offenses and protect the community at large."
Christine May, a spokeswoman for the state Department of Corrections, said officials will review the ruling and determine whether and how to proceed with expanded AIDS tests. May said that as of June 30, 3,176 inmates were serving terms for rape, sodomy and oral copulation. It was not known how many have not been tested, but the number likely is substantial, she said.
Authorities said the decision also could allow an expansion of state-required blood sampling to retain the genetic codes of convicted murderers and other violent offenders. Since 1990, about 27,000 DNA blood samples have been collected but have not been analyzed because of a lack of state funding.
A lawyer for the defendant in the case expressed dismay with Thursday's ruling and said an appeal may be made to the U.S. Supreme Court.
"People ought to be told in advance of the consequences of committing a crime," said attorney Richard Jay Moller. "This is like saying 'If you've been convicted in the past for speeding, you now have to undergo a test for AIDS in addition to your $50 fine.' "
In the case before the court, Thomas Scarth McVickers was convicted in Orange County in April, 1989, of a series of sex offenses involving female minors. According to authorities, he took pornographic photos of a 13-year-old girl and recorded most of the acts in a diary and ledger.
McVickers was sentenced to 23 years in prison and, under the new law, ordered to take a blood test for AIDS.
A state Court of Appeal in Santa Ana upheld the conviction but voted 2 to 1 to overturn the testing order. The panel majority said the tests were an invasion of privacy that constituted "punishment"--and thus could not be imposed under a law passed after the crime occurred.
The high court reversed the appeal panel Thursday in a 14-page opinion by Mosk. The justices said that while additional jail time or an extra fine would be punishment, the same was not true for AIDS testing.
The aim of constitutional prohibitions against retroactive or ex post facto laws is to assure fair warning of new punishment and prevent vindictive legislation, Mosk noted. But the state's purpose in passing the testing law was to curb the spread of AIDS, not inflict retribution, the justice wrote.
The court rejected McVickers' contention that a positive test would unfairly result in social ostracism and psychological distress in knowing he had an incurable disease. The test results, Mosk said, are made known only to a defendant and law enforcement officials, not the public.
The justices also said McVickers and other sex offenders now have received fair notice of future additional punishment if they test positive and commit subsequent sex crimes.
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