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State in Interest of J.G.

April 22, 1996

STATE OF NEW JERSEY IN THE INTEREST OF J.G., N.S., AND J.T.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, whose decision is reported at 283 N.J. Super. 32.

Approved for Publication April 22, 1996.

Before Judges A.m. Stein, Kestin and Cuff. The opinion of the court was delivered by Cuff, J.A.D.

The opinion of the court was delivered by: Cuff

The opinion of the court was delivered by CUFF, J.A.D.

This appeal involves a challenge to two statutes, N.J.S.A. 2A:4A-43.1 and N.J.S.A. 2C:43-2.2, which require AIDS and HIV testing upon request of the victim of those defendants who have been charged, indicted, convicted, or adjudicated delinquent of either sexual assault or aggravated sexual assault. In this case, the three juveniles have been adjudicated delinquent for acts which, if committed by an adult, would constitute aggravated sexual assault. After an evidentiary hearing at which defendants presented three expert witnesses, the trial Judge held the statutes unconstitutional, facially and as applied, as an unreasonable search under the Fourth Amendment. Consequently, the State's request for an order compelling defendants to submit to such testing was denied. We reverse.

On July 13, July 20, and October 18, 1994, juvenile delinquency complaints were filed against thirteen-year old J.G., fourteen-year old N.S., and fifteen-year old J.T., respectively, in the Family Part charging them with acts which, if committed by an adult, would constitute aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1) on C.H., a ten-year old girl. Specifically, defendants were charged with forcing C.H. to engage in anal intercourse and fellatio on May 7, 1994. On August 16, 1994, the State made an oral application for an order compelling J.G. and N.S. to submit to a mandatory test for HIV. After J.T. was charged, the State applied to have him tested. By order dated October 5, 1994, the American Civil Liberties Union was permitted to appear as amicus curiae.

On November 29 and 30, 1994, an evidentiary hearing was conducted at which defendants presented the testimony of three expert witnesses. The State presented no witnesses. Subsequently, each juvenile pled guilty to aggravated sexual assault: J.T. on January 18, 1995; N.S. on January 20, 1995; and J.G. on February 23, 1995.

Two tests are used in combination to determine whether a person has been exposed to the HIV virus. One is the enzyme-linked immuno-sorbent assay (ELISA). If the result of that test is positive, a second procedure, the Western Blot test, is performed to confirm the initial result. The tests are considered reasonably accurate. The tests do not detect the virus itself but the body's serological response to the virus. It also usually takes anywhere from three to six months after infection before an immunological response is detected in the body. Thus, because of a latency period of variable length during which the individual does not produce antibodies in response to the HIV virus, a negative test does not necessarily mean that the assailant is not infected with the virus.

James Oleske, a Professor of Pediatrics at the University of Medicine and Dentistry--New Jersey Medical School, testified that positive ELISA and Western Blot tests have a very high predictive value that the tested individual is infected with HIV. However, Dr. Oleske opined that testing alleged sexual assault assailants for HIV is not beneficial for either the diagnosis or the treatment of the victim because the test would not reveal the HIV status of the assailant at the time of the assault. His treatment of the victim would not be affected by the HIV status of the assailant because not every sexual encounter results in infection and because it usually requires multiple exposure to the virus to result in infection. Furthermore, a negative result would not necessarily mean that the assailant was not infected because of the window period. He also noted that the report of a false negative, due to the effect of the window period, could actually prove harmful to the victim because the victim may discontinue testing for the virus.

Jill Greenbaum, Executive Director of the New Jersey Coalition Against Sexual Assault, has extensive experience in counselling sexual assault victims. She testified that knowledge of the assailant's HIV status is not psychologically beneficial to the victim. She opined that a sexual assault victim must separate herself from the assailant. She also agreed that knowledge of the assailant's HIV status is not informative of the victim's HIV status. She concurred with Dr. Oleske that, if the result of the assailant's test is negative, the victim may discontinue subsequent testing to her detriment.

Patricia Kliser, Medical Director of AIDS Services at University Hospital and an Associate Professor of Clinical Medicine and Preventive Medicine at New Jersey Medical School, opined that HIV testing of the assailants is of no medical benefit to the victim and would be of no use in determining the appropriate diagnosis and treatment for the victim.

In a reported decision, State in the Interest of J.G., 283 N.J. Super. 32, 660 A.2d 1274 (Ch. Div. 1995), the trial Judge found that:

1) Testing the juveniles for HIV infection would be of no use in the diagnosis of the victim.

2) Testing the juveniles would provide no benefit in the medical treatment of the victim of sexual assault.

3) Testing the juveniles would provide no benefit in the psycho-social recovery of the victim of sexual assault.

[ Id. at 48-49.]

The trial Judge also noted that the mandatory blood test to determine the assailant's HIV status required by N.J.S.A. 2A:4A-43.1 and N.J.S.A. 2C:43-2.2 implicated the Fourth Amendment guarantee against unreasonable searches and seizures. Id. at 49. He also determined that the appropriate analysis of the Fourth Amendment issue was the "special needs" analysis articulated in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989), and National Treasury Employees Union ...


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