House Bill 1061 poses a due-process quandary for conservatives.
Representative Tim Reed (R-7/Brookings) offers this measure to allow victims of sexual assault to ask the court to force defendants to submit to a blood test for HIV. If the court finds “probable cause that the defendant or juvenile committed the offense and that there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim,” then the defendant has to roll up a sleeve and submit to this bodily search. The county in which the alleged crime took place would foot the bill unless the defendant is convicted, at which point the convict would reimburse the county. If the defendant is already in prison, the inmate would for the HIV test out of the inmate’s account.
As I review statute, it strikes me that HB 1061 may not be necessary. SDCL 23A-35B-3 already empowers courts to grant victim requests for blood tests on defendants for blood-borne pathogens. HIV is a blood-borne pathogen.
What I am intrigued to notice is that we can compel this intrusion on bodily privacy on an accused but not convicted citizen. I understand the concern motivating both HB 1061 and the broader statutes of Chapter 23A-35B: crime victims have a right to know what harm their attackers may have done to them.
But we need to remember: in the eyes of the law, those “attackers” haven’t done anything to the “victims” until a jury has determined the attackers are guilty.
For a gentler and imperfect analogy (this is my invitation to all comment-section logicians for analysis!), if my car disappears, and the cops arrest my neighbor for selling my VW parts through a chop shop, I can’t ask the court to let me break into my neighbor’s house and take money out of his cookie jar before he’s been tried and convicted.
Rep. Reed has legal mastermind Lee Schoenbeck (R-5/Lake Kampeska) prime-sponsoring on the Senate side, so surely they’ll be able to explain why current statute does not cover HIV testing and why a defendant surrenders this element of Fourth Amendment protection against bodily search and seizure.
HIV is explicitly included in the existing statute, so says the Definitions section of SDCL 23A-35B-1:
“(2) “Blood-borne pathogens,” any of a family of pathogenic micro-organisms that are present in and may be transmitted by human blood, including hepatitis B and HIV”
Like Cory, I’m also curious as to the explanation for the apparent redundancy of of this bill by the bill’s sponsors.
Is this going to include the criminals in the Roman Catholic Church? It definitely needs to. The child molestation and accompanying coverup are ongoing.
Sojourners has an interview with one of the victims and SNAP members. He explains that when the USA RCC bishops in 2002 formed a committee to reform the church they asked a retired FBI agent to lead it. He quit after about 6 months when, he said, it became apparent there would be no “reform,” the committee was just for show.
The Italian bishops decided it would be up to the bishops to decide whether or not to report these sexual assaults to police.
The pope could order that all crimes against children be reported to police, but he has not. In 2018 US bishops were ready to enact a strong set of rules to protect children but the pope made them hold off.
SNAP has turned to civil authorities due to the continued dishonesty and criminal racketeering of the RCC. They are advocating a plan for the AGs of all 50 states to undertake special investigations of the RCC in their state. Diocesan office raids have taken place in Michigan and Pennsylvania. Call Ravsbutt and urge him to appoint a qualified, skilled attorney to take that on in SD.
Somebody needs to protect those children and it looks like it’s up to us non-Roman Catholic citizens.
https://goo.gl/6tqdTs
Blood draws constitute searches for 4th Amendment purposes and no search is permitted without a warrant based on probable cause that it may reveal evidence of a crime. In a sexual abuse case, a warrant could issue without the need for a statute if the victim had HIV, since finding evidence that the accused also has HIV could be evidence connecting the accused to the alleged victim – either one could have given it to the other. This would be evidence of the alleged crime, similar to, albeit not quite as compelling as, DNA evidence.
Probable cause that the accused committed the offense as required by the statute, however, does not establish any connection between HIV and the crime. Indeed, this requirements is meaningless since probable cause that the accused committed the crime was necessary for the charges – no one can even become an “accused” until there is a finding of probable cause that he or she committed the crime.
And of course our brilliant legislature simply lacks the ability to adopt enforceable statutes in an effort to exert governmental power that the Constitution restricts. HB 1061 sounds like just such an effort. I wonder if the sponsors or LRC got any advice from the new AG.
@ Debbo …. Bernie v. Blue Cloud Abbey was one of several cases that ended up before the South Dakota Supreme Court alleging Catholic church officials at the time covered up serial sexual abuse taking place at the compound. After helping to broker the sale of the abbey Watertown member of the Catholic Church, Lee Schoenbeck, aided by lobbyist “grudznick”, convinced the South Dakota Legislature to pass laws covering up countless crimes committed by their sect by enacting statutes of limitations. – Larry Kurtz 8/23/2018
BCB for Attorney General. Ravnsborg is a joke. Jackley wasn’t much better.
Thanks Porter. Schoenbeck no longer has any moral standing. Jeremiah “Grudz” never did.
Debbo, yes, I would assume that if we arrested some priest for sexual assault, everyone of his victims could demand an HIV test (under current law, without HB 1061) and a look at the results.
Cory, can you explain your assumption that “if we arrested some priest for sexual assault, everyone of his victims could demand an HIV test (under current law, without HB 1061) and a look at the results.”
As I tried to point out in an earlier comment, the 4th Amendment, with some exceptions such as search for weapons incident to arrest for officer safety, does not permit a search of someone’s bodily fluids without a showing of probable cause that the search is for evidence of a crime. Absent evidence that an alleged victim has HIV, how do you contend HIV in the accused would constitute evidence of a sexual assault?
Searching the bodily fluids of someone accused of a sex offense might be a good idea and good public policy, but if it is prohibited by the 4th Amendment’s limitations, it is my understanding that a court lacks the authority to issue a valid search warrant and officials do not have the legal authority to conduct a warrantless search. Am I missing something?
Sure, BCB. Let’s see if I’m reading SDCL 23A-35B-3 correctly:
That statute, like the seemingly redundant HB 1061, does not speak of conducting a search for evidence of a crime. The judge decides if there appears to be probable cause to believe the defendant committed the crime (which, yeah, as you point out, arrest already established). Subsequent statutes in this chapter specify that the victims get to see the results and (even more remarkably to your analysis, Bear) that the test results cannot be used to establish guilt or innocence.
So if we follow existing statute, the response I gave to Debbo seems accurate. But as Bear is pointing out, existing statute, not to mention the redundant HB 1061, may be ripe for a 4th-Amendment overturn… which is the question I wanted to get at in the first place. Nobody likes sex offenders, but the people this statute and the proposed bill subject to bodily searches aren’t sex offenders yet; they’re just defendants, accused but not convicted. There are shades of Marsy’s Law here: do victims really get some special status or rights to make claims over another citizen before a court of law and jury of peers have determined that a person really is a victim?
Thanks Cory. The statute you cited does purport to allow such a warrant to issue. And as you point out, HB-1061 seems redundant to the statute you quoted. What is a bit confusing is the idea that the search is to determine whether the accused has HIV. If that is the purpose of the search then it seems inconsistent with the 4th Amendment. If the search is to discover evidence that will help prove the accused committed the alleged crime, however, that is a different matter. The idea that a victim worried about contracting HIV can constitute probable cause for a search warrant seems totally inconsistent with the 4th Amendment.
Justice Rehnquist, not exactly a liberal when it comes to criminal law, wrote the majority opinion for the SCOTUS that considerably loosened the probable cause requirements for a search warrant in Gates. The Court, however, reaffirmed the requirement that the search be for “evidence of a crime.”
Illinois v. Gates, 462 U.S. 213, 236-37 (1983)
https://www.law.cornell.edu/supremecourt/text/462/213#writing-USSC_CR_0462_0213_ZO
Assuming this standard is still 4th Amendment constitutional law, searching to assist a victim find out if he or she may have contracted HIV or an STD is inconsistent with the 4th Amendment. And at least part of the language in HB-1061 – “probable cause that the defendant or juvenile committed the offense” – is the standard for issuing an arrest warrant, not a search warrant.
There is additional language in each statute, however, that raises another question. A search based on an allegation of “an exchange of blood, semen, or other bodily fluids from the defendant or the juvenile to the victim” arguably seeks potentially admissible evidence of the sex crime. Indeed, similar searches for DNA evidence are currently standard procedure permitted by the 4th Amendment. In contrast to the other language in HB-1061, and the phrase “from the defendant or the juvenile to the law enforcement officer” in SDCL 23A-35B-3, neither of which seems to suggest finding evidence of the sex crime, comparing bodily fluids when there is an alleged exchange of such fluids between the accused and the alleged victim would be permissible.
What if a priest molested a child knowingly infected with HIV and in turn infected the priest. Do they call a draw with honors to both sides or is there another crime other than sexual assault committed?
For some of you out there, this is a serious question from me.