The opinion of the court was delivered by: Fuentes
These cases involve an issue of first impression in this jurisdiction. N.J.S.A. 2C:43-2.2a and N.J.S.A. 2A:4A-43.1 have been challenged, both facially and as applied to the facts in these cases, as unconstitutional under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, P P 1 and 7 of the Constitution of the State of New Jersey. The issue to be decided is whether a juvenile charged with, or convicted of, aggravated sexual assault must submit to HIV testing, with the expectation that the results of the test would be revealed to the Office of Victim-Witness Advocacy, which would in turn reveal the test results to the victim.
In this case, three juveniles have been charged with aggravated sexual assault pursuant to N.J.S.A. 2C:14-2a(1). The complaints charge that on May 7, 1994, juveniles, J.G., age 14, N.S., age 14, and J.T., age 15, committed acts of aggravated sexual assault upon the victim by forcing her to engage in anal and oral intercourse in violation of N.J.S.A. 2C:14-2a(1). *fn1
The victim, C.H., was 10 years old at the time of the alleged incident. It has been stipulated by all parties that the victim is and was, at the time of the incident, mentally retarded. Following the filing of the delinquency complaints, the victim of the aggravated sexual assault in this matter, pursuant to N.J.S.A. 2A:4A-43.1 and N.J.S.A. 2C:43-2.2a, requested and the State, thereafter moved *fn2 to compel the juveniles to "submit to an approved serological test for acquired immune deficiency syndrome (AIDS) or infection with the human immunodeficiency virus (HIV) or any other related virus identified as a probable causative agent of AIDS." *fn3
The juveniles, joined by amicus curiae, the American Civil Liberties Union of New Jersey, *fn4 opposed the State's motion of the HIV testing, on the grounds that these statutes, on their face and as applied to the juveniles charged in this case, unconstitutionally deprives them of their rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, PP 1 and 7 of the Constitution of the State of New Jersey. This is an question of first impression, never before considered by any court in this jurisdiction.
An evidentiary hearing was held before this court on November 29 and 30, 1994. The parties were given an opportunity to present expert testimony. The juveniles challenging the statute presented experts who addressed three separate issues: (1) currently available methods for HIV testing; (2) medical treatment for possible exposure to HIV; and (3) psychological counseling following potential exposure through sexual assault. The testimony of the experts focused on whether testing the accused juveniles for HIV infection would be of any benefit in the diagnosis, treatment, or psychological recovery of a victim of a sexual assault.
The court heard testimony from three expert witnesses presented by the defense. The first was Dr. James Oleske. Dr. Oleske is the Francois-Xavier Bagnoud Professor of Pediatrics and Director of the Division of Allergy, Immunology and Infectious Diseases at the University of Medicine and Dentistry - New Jersey Medical School. He is also the Medical Director of the Children's Hospital AIDS Program at United Hospital of New Jersey. Dr. Oleske is Board certified in Pediatrics, Allergy/Immunology, Medical Laboratory Immunology, and Allergy/Immunology Diagnostic Laboratory Immunology. He holds a Masters Degree in Public Health from Columbia University. Dr. Oleske's background includes membership and consulting assistance in a number of national and international bodies dealing with the HIV epidemic. He has also published scientific, scholarly articles and books in the field of HIV, including the first reported case, in 1983, of children with HIV infection. The court admitted Dr. Oleske and qualified him to testify as an expert in HIV related diagnosis, treatment, testing and prevention, particularly as it relates to diagnosis and treatment of children and adolescents. *fn5
The second expert to testify was Dr. Patricia Kloser. Dr. Kloser is the Medical Director of AIDS Services at the University of Medicine and Dentistry - New Jersey Medical School. She also serves on the faculty of the Medical School as Associate Professor of Clinical Medicine with appointments in both internal medicine and infectious diseases and as an Associate Professor of Preventive Medicine. She is Board certified in Internal Medicine with a subspecialty in Infectious Diseases. In 1988, Dr. Kloser founded the Newark Women's AIDS Clinic, the first clinic in the United States designed specially for women with HIV. As a treating physician and through her association with the Women's AIDS Clinic, Dr. Kloser has treated between 2,000 to 4,000 patients, including victims of sexual assaults. She is also a founding member of the New Jersey Women and AIDS Network, an advocate group for HIV infected women. She has conducted extensive research and published numerous articles in the field of AIDS, specifically she has published a book on women with HIV disease. Dr. Kloser was qualified and admitted to testify as an expert in the field of HIV diagnosis, treatment and prevention, with a specific focus on the diagnosis and treatment of women. *fn6
The third expert called by the defense was Dr. Jill Greenbaum. Dr. Greenbaum has undergraduate and graduate degrees in Education and Child Psychology and received a Doctorate in Education in 1983 from Columbia University. She is currently the Executive Director of the New Jersey Coalition Against Sexual Assault, a statewide organization devoted to serving the needs of victims of sexual assault. In addition to her administrative duties she provides crisis intervention counseling, emotional support, information and referrals to victims of sexual assault through a twenty-four hour crisis hotline. She has provided direct counseling in hospital settings and judicial proceedings. Her background includes 19 years experience in the field of counseling and intervention for sexual assault victims. Dr. Greenbaum has provided crisis counseling to rape victims in emergency rooms and in therapeutic settings. She conducts speaking engagements and provides training to crisis counselors to employees of the New Jersey State Department of Health and various law enforcement agencies, among others. Dr. Greenbaum was qualified and admitted to testify as an expert in crisis counseling with survivors of sexual assault. *fn7
The State chose not to present any expert testimony or submit any evidence. *fn8
From the evidence presented at the hearing, the court makes the following findings.
DIAGNOSIS AND DETECTION OF HIV
The most commonly used tests are the HIV enzyme-linked immunosorbent assay (ELISA) test followed by a confirmatory test, usually the Western Blot analysis.
For anyone over the age of 15 months, the most reliable, sensitive and specific assays, serological and widely available, are the HIV ELISA test, followed by a confirmatory test, usually the Western Blot analysis. Those tests, when done together, have a high degree of sensitivity and specificity for diagnosing disease in over 15 months of age...These are serological tests that are done when serum is taken from individuals in which, after a period of incubation, tests are run on the results by doing a culametric change on an automated piece of machinery. They are fairly standardized tests. They were first described in 1985.
[Testimony of Dr. Oleske.]
These tests detect antibodies to the virus rather than the virus itself.
Q. (Mr. Jacobi): And does that positive result indicate that the test has detected the virus?
A. (Dr. Oleske): No, it detects serological response to the virus, that serological response usually taking anywhere from three months to six months after infection with the virus before that immunology response will occur. In rare instances, people reported as long as a year, but mostly three to six months.
Q. (Mr. Jacobi): So a positive test, a positive ELISA, followed by a Western Blot test, will tell a physician what about the patient?
A. (Dr. Oleske): If it's in a high prevalence area, where the virus is seen in the community, it tells us with an accuracy of probably greater than 95 percent that that patient truly is infected with the HIV virus.
Q. (Mr. Jacobi): And what does a negative result from those tests demonstrate?
A. (Dr. Oleske): Well, a negative result tells us that the individual tested has not developed antibodies against HIV. The two interpretations to that are: one, they are truly are not infected, that the test is reliable and has good specificity and sensitivity, and that they are not infected; or alternatively, they may be in a period in which they have been infected, but not have yet developed antibodies to the HIV virus.
In other words, somewhere between the time of actual exposure to the virus to six months out, there may be a period when they do not test positive. Ninety-five percent of people by six months usually have developed antibodies and the test will be positive six months after they have been infected.
This so called "window period" testified to by Dr. Oleske is a time when an individual who may be truly infected will in fact test negative since he or she has not yet developed the antibodies necessary for detection. Dr. Oleske further testified that in ninety-five percent of the cases this "window period" lasts between three to six months from the initial point of infection. However, there have been reported cases of up to one year.
There are other tests available which detect the HIV virus directly. These so called "direct tests" include HIV culture, polymerase chain reaction (PCR), and HIV antigen tests. Unlike the ELISA and Western Blot these direct tests detect the actual presence of the virus, rather than the presence of antibodies.
There are a number of both investigational, as well as expensive, assays that are available to directly detect evidence of viral infections...and that may be positive in that early window period of time, depending upon how much virus is present. Those tests are the HIV culture, which is an actual culture of the virus in a living cell system. That usually takes about twenty-eight days before those test results will be available. It's relatively expensive and hazardous to laboratory workers because they are working with a live virus.
There is another test called a [polymerase] chain reaction or PCR, which takes advantage of the virus that have lodged themselves in the genetic material of the host human's cell and those tests may detect one in ten thousand cells that are infected with the HIV virus.
It's a very sensitive tool but has some problems with false positive results because it's so sensitive and is liable to be associated with problems with contamination. But, it done in a proper laboratory under proper controls, it provides a means for early detection.
Again, those tests while positive [are] very strong indications of infection, negative tests do not necessarily rule out infection. PCR is limited in its availability and is somewhat expensive.
[Testimony of Dr. Oleske.]
These tests are still considered experimental, used primarily for investigational and research purposes. They are used in a clinical context in limited areas where the transmission occurs from mother to child, and children under fifteen months of age. Through the use of serological tests, ELISA and Western Blot, the clinician is unable to discern the difference between true infection in the infant as opposed to the maternal antibody that the child received in utero. Therefore, these direct tests are used specifically in an attempt to diagnose earlier in life, "certainly below six months, true HIV infection as opposed to, if you will, a false positive antibody test in the infant which only means that the mother had the antibody". (Testimony of Dr. Oleske.)
These tests are not frequently used because they are time consuming, expensive, and risky to the laboratory technicians performing the test. The majority of the cases still rely on the ELISA and Western Blot tests.
In the context of the present situation, where the individual may have been exposed to HIV as a result of a sexual assault, the most appropriate method for diagnosing for HIV infection is ELISA and Western Blot.
UTILITY OF TESTING ALLEGED ASSAILANT IN THE DIAGNOSIS OF SEXUAL ASSAULT VICTIM
The medical testimony in this area is uncontroverted. The HIV status of the alleged assailant or even the actual assailant would provide no useful information to a physician in ...