DATE: FEBRUARY 22, 2001

CONTACT: CANDACE OUILLETTE GAUMOND
OFFICE OF STATE REP. GALE CANDARAS (D) WILBRAHAM
599-4785

CANDARAS FILES LEGISLATION TO COMPEL RELEASE OF HIV INFORMATION

BOSTON: State Representative Gale D. Candaras, (D) Wilbraham, filed legislation today that would give superior court judges the discretion to disclose to victims, law enforcement and medical personnel, the HIV and infectious disease status of individuals accused of violating state or federal criminal law. HIV is the virus believed to cause Acquired Immune Deficiency Syndrome, an often times deadly disease, especially when treatment is not commenced promptly. Upon the motion of an aggrieved individual, judges would have to hold an in camera or in chambers hearing and determine that release of the perpetrators medical, insurance or other records is warranted to allow for the medical evaluation and treatment of the exposed individual and her family.

Candaras’ legislation requires that the judge would have to find that “exposure to the blood or other bodily fluid of the offending person substantially threatens the health of the aggrieved person; that the exposure is the direct result of conduct by the offending person; and that a reasonable suspicion exists to believe that such conduct is or may be a violation of state or federal criminal law, even if a criminal investigation or prosecution relating to such conduct has not been or will not be commenced.” Candaras’ legislation does not compel the testing of offending individuals who cannot produce medical records but does not rule it out as a next step. She feels strongly that individuals with knowledge of their HIV or infectious disease status have a duty to warn and to avoid interactions with others that is likely to result in their exposure to infected blood or other bodily fluids.

Candaras pointed to the latest in a rash of cases where victims, law enforcement and medical personnel have been exposed to the perpetrator’s blood. Last week, a state Supreme Court justice upheld the fourteen-year old privacy law stating she had no statutory authority to compel a perpetrator, who sliced his wrist with broken glass and then fought off police with a butcher knife, to disclose his HIV status. The judge stated that it was up to the legislature to amend the law, which currently provides no exceptions to the disclosure prohibition. The appeal before the judge involved a case in which at least seven officers were exposed to the perpetrators blood, which was virtually everywhere at the scene. Candaras said, “Intentionally exposing others to infected blood or bodily fluid is a battery upon another individual and the harm flowing from that battery is entirely foreseeable; a perpetrator who engages in such conduct should not be permitted to benefit from the protection of the privacy law at the expense of his victim. Such a result flies in the face of what common sense and justice require.”

State privacy laws currently prohibit compelling perpetrators in criminal cases to disclose their HIV status. Candaras stated:

“I believe this is an unacceptable consequence of the law and that, in this particular instance, there are important factors mitigating against protecting an offender’s privacy. While, as a general rule, an individual’s right to privacy should be paramount and held beyond government intrusion, an offender’s privacy interest in his medical status must be subordinated to the rights of innocent individuals who have at risk their constitutionally protected interests in bodily integrity, mental health, and even continued life, especially in the HIV context, where early treatment can mean life or death. As regards law enforcement and medical personnel, it is one thing to assume the risk of infection as part of one’s occupation and a very different matter to be denied information that may save your life and the lives of family members.”

Candaras dismissed the notion that breaching HIV privacy would deter individuals from being tested. She said, “I do not believe individuals contemplating an HIV test stop and say to themselves, ‘I’m not going to be tested because I might commit a crime, spill blood or bodily fluids on others and be forced to disclose my HIV status’…If they decide to be tested, it’s because they want to save their own lives…People will always operate in their own self interest where their lives are at stake…It’s other peoples lives they don’t respect…If fear of disclosure deters them from anything, it will be from criminal activity likely to lead to that disclosure.”