At times, the law appears confusing and unfair. Criminal defendants receive the strictest of all standards of review: "guilt beyond a reasonable doubt." But why are the accused afforded greater constitutional protections than the victim? One reason may be found by examining the intent of the authors of the United States Constitution. Our founding fathers wanted Americans to escape the kind of persecution suffered under English rule. From its inception, the Constitution and the laws that followed were based on public policy and ethics. This legal precedence is used to interpret new laws. However, because of precedence, laws often do not reflect the prevailing public opinion of all Americans. Law may not always make sense, but it plays an important role in codifying and uniformly resolving many dilemmas, including biomedical and ethical issues. One such dilemma that has come under increasing scrutiny is whether an alleged sex offender may be forced to submit to an HIV test upon the victim's request. Although the victim may wish to know whether she has been exposed to the deadly virus, the offender has a constitutional right against unreasonable searches and seizures. Using the hypothetical in Section II, this paper will attempt to explain and resolve this dilemma through ethical principles. This resolution will then be compared with the numerous statutes that address the issue and the courts' resolutions.
Melissa S. Iotti,
Mandatory HIV Testing of Accused Rapists: Whose Rights Are We Protecting? An Ethical and Legal Analysis,
Rich. J. L. & Pub. Int.
Available at: http://scholarship.richmond.edu/pilr/vol3/iss1/3