FEU Law Legal Writing 2015-2016: Sex offenders with AIDS: How should they be punished

In 2013, the Philippine National Police Women and Children Protection Center (PNP-WCPC) recorded a total of 5,493 rape incidents involving women and child victims. That’s approximately one reported rape incident every 96 minutes.

But consider this: the PNP-WCPC is just one of several units that report crime data. Its mother unit, the PNP Directorate for Investigation and Detective Management (PNP-DIDM), consolidates crime reports from all reporting units. Last year, the PNP’s annual report based on DIDM data tallied as much as 7,409 reported rape incidents, or one every 72 minutes.[1]

In 2008, Nearly 90,000 people reported being raped in the United States in 2008. There is an arrest rate of 25%.[2] According to theNational Crime Victimization Survey by the Bureau of Justice Statistics, 39,590 men and 164,240 women were victims of rape, attempted rape, or sexual assault in 2008.[3] Of those committed by a single offender, 78.1% were committed by men and 18.5% were committed by women, with 3.5% by an unknown attacker. Of those committed by multiple offenders, 75.7% were committed by only men and 24.3% were committed by both men and women.[4]

There are varying data on the percentage of rapes in the United States that are gang rapes. A 2006 report from the National Institute of Justice based on the 1995-1996 National Violence Against Women Survey found that 21.8% of rapes of women and 16.7% of rapes of men in the United States are gang rapes.[5] The National Crime Victimization Survey by the Bureau of Justice Statistics found that only 6.8% of rapes committed in 2008 were gang rapes[6]

Because of this many states have enacted laws that allow individuals accused of sexual offenses to be compelled to submit to HIV testing.[7] These statutes may be divided into two major categories. The first category mandates that upon the request of a victim, a person convicted of particular sexual offenses may be compelled to submit to HIV testing[8] The second category mandates that upon the request of a victim, a person accused but not convicted of a particular sexual offense may be compelled to submit to HIV testing. This Comment examines the latter and most troubling category of laws by studying the constitutionality of testing persons accused of sexual offenses under a Fourth Amendment analysis. When analyzing these laws, courts generally focus on the Fourth Amendment and often dismiss challenges made under the Fourteenth and Fifth Amendments.' Consequently, this Comment does not scrutinize other constitutional challenges, such as procedural and substantive due process under the Fourteenth Amendment. This Comment focuses on the growing victim's rights movement, its effect on the enactment of state legislation allowing compulsory HIV testing, and courts' constitutional analysis of mandatory HIV testing laws. As an example, this Comment reviews legislation recently passed in NewJersey and the state court's analysis of this legislation.[9]