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The New York Times
May 25, 2007

H.I.V. Testing Bill Starts ‘War’ Among Assembly Democrats

By DANNY HAKIM

ALBANY, May 24 — Gov. Eliot Spitzer and a majority of state lawmakers are backing a bill requiring H.I.V. testing of suspects indicted on rape charges. Nevertheless, its chances of passage are unclear, as the legislation is the subject of contentious debate in the Assembly.

The bill has more than enough votes to pass the Assembly, judging from its voluminous list of co-sponsors. But it remains to be seen whether the Assembly leadership allows it to come up for a vote, though prospects appear to be more favorable than in previous years.

“This year, it seems to be on course to at least get to the floor and it could very well succeed there, based on the number of sponsors on the bill,” said Assemblyman Joseph R. Lentol, a Brooklyn Democrat who opposes the bill and is chairman of the Codes Committee, which must clear it.

The debate over the issue, including a lengthy private meeting this week among Democrats who control the Assembly, reflects conflicting concerns about the health of rape victims and about the civil liberties of suspects who have not yet been tried. Backers of the measure say victims should have all the information they can get before they decide whether to take the powerful cocktail of medications to fight the AIDS virus. The federal government has made a small amount of grant money available to states that adopt such a measure.

A spokesman for the Assembly speaker, Sheldon Silver, said on Thursday that Mr. Silver was not available for comment because of the Jewish holiday of Shavuot.

Paul Larrabee, a spokesman for Mr. Spitzer, said, “The governor believes that a victim of a rape or a sexual assault needs to know as soon as possible the H.I.V. status of their attacker. This information is critical to both the physical and emotional well-being of the victim.”

Given that the bill was submitted by the governor’s Division of Criminal Justice Services, and given its history of support in the Republican-led Senate, it appears that the measure will succeed or fail based on the outcome in the Assembly. By all accounts, the internal debate over the issue has been intense.

“There’s a big war on this issue in the Assembly,” said Nettie Mayersohn, a Queens Democrat and the chief sponsor of the bill. “This is a decision that should be made by the woman and not by the legislators in Albany.”

Mr. Lentol and other opponents stress, among other things, that the bill might give rape victims a false sense of security if the suspects in their attacks test negative. Those who have contracted the virus often do not test positive right away. He said he feared that rape victims would stop taking their antiviral medications prematurely.

“The test may come back negative but it might be the wrong guy, or he might be in a window period where he hasn’t tested positive,” Mr. Lentol said.

“I know that to some people, especially some women, it could be viewed as a paternalistic kind of thing, that she should have all the information at her disposal,” he continued. But he said he viewed keeping potentially misleading information from victims as coming out “on the side of protecting a person’s health, no matter who they are.”

Others argued that requiring tests of those who are indicted, but not convicted, would set a troublesome precedent. Under current law, H.I.V. tests are not required until after conviction.

“Everyone wants to protect the victims of sexual assault, and there’s no question about that,” said Assemblyman Keith L. T. Wright, a Manhattan Democrat. “But we run a very slippery slope if we start testing people just by virtue of indictment.

“There really are no protections for privacy with those tests,” he added. “The D.A. would have that information, and who knows, maybe the newspapers.”

Ms. Mayersohn said a provision for victim counseling in her bill would ensure that victims understand the uncertainties of testing. She said victims or their representatives should be presumed to be capable of making well-informed decisions, and “understand about the window period, that there is a small chance that the guy might be H.I.V. positive but in the early stages.”

“She and her doctor are going to decide whether she is going to continue the medication or stop the medication,” she added.

A bill identical to Ms. Mayersohn’s has been introduced in the Senate. Mark Hansen, a spokesman for Senator Joseph L. Bruno, the Republican majority leader, said, “It’s consistent with bills we’ve passed before.”

Copyright 2007 The New York Times Company

http://www.nytimes.com/2007/05/25/nyregion/25aids.html