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State in Interest of J.G.

September 25, 1997

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


On certification to the Superior Court, Appellate Division, whose opinion is reported at 289 N.J. Super. 575 (1996).

The opinion of the Court was delivered by Poritz, C.j. Justices Handler, Pollock, O'Hern, Garibaldi, Stein, and Coleman join in Chief Justice Poritz's opinion.

The opinion of the court was delivered by: Poritz

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey in the Interest of J.G., N.S. and J.T. (A-74-96)

Argued January 6, 1997 -- Decided September 25, 1997

PORITZ, C. J., writing for a unanimous Court.

Juveniles J.G., N.S., and J.T. challenge the constitutionality of N.J.S.A. 2C:43-2.2 and N.J.S.A. 2A:4A-43.1, which require sex offenders, upon a request by the victim, to submit to serological tests for AIDS or infection with HIV.

J.G., N.S., and J.T. were thirteen, fourteen, and fifteen years old, respectively, when they were charged in 1994 with juvenile delinquency for acts that would have constituted aggravated sexual assault if committed by an adult. They had forced a ten-year-old, mentally-retarded girl to engage in anal intercourse and fellatio. Each juvenile eventually pled guilty to the delinquency charges.

Following the filing of the charges, the State moved at the request of the victim for orders compelling the juveniles to submit to tests for AIDS or HIV. The juveniles opposed the application, arguing that the tests constitute an unreasonable search under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. They also argued that the statutes violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article I, Paragraph 1 of the New Jersey Constitution because they do not provide sufficient procedural safeguards to protect the privacy rights of persons who have been accused but not convicted of sexual assault.

The Chancery Division held an evidentiary hearing at which the juveniles presented the testimony of three expert witnesses. The experts offered their opinions that the testing would provide no medical benefit in the diagnosis or treatment of victims because the test would not reveal whether transmission, which does not occur in all cases, had in fact occurred, and because testing the assailant might produce a false-negative result due to the three- to six-month latency period. (The experts testified that it generally takes from three to six months from the date of infection to detect the body's immunological response, with the result that, during this "window period," an infected person may have a negative test result.) The juveniles' experts also offered their opinions that there was no "psycho-social benefit" to victims in knowing the HIV status of the assailant, since the victims may wrongly rely on a false-negative result and discontinue medical care and testing, or may react to a positive result without considering their actual risk of infection or their own status. The State did not present any witnesses, but cited expert opinions and factual findings from decisions of other jurisdictions on the constitutionality of various HIV and AIDS testing statutes.

The Chancery Division found that the involuntary taking of blood from a person charged with or convicted of aggravated sexual assault constituted a search within the meaning of the Fourth Amendment. Applying the special needs analysis adopted by the United States Supreme Court, the court determined that the State had a legitimate and compelling governmental interest in assisting and protecting the victims of sexual assault. Because it could find no benefit to the victim in testing the assailant, however, the court concluded that the statutes violated the juveniles' rights under the Fourth and Fourteenth Amendments of the United States Constitution.

The Appellate Division reversed. The panel applied the special needs analysis of the United States Supreme Court, but upheld the statutes with respect to adjudicated juveniles and convicted adult sex offenders. Because understanding of AIDS diagnosis and treatment continues to grow and because new methods of treatment are constantly becoming available, the Appellate Division was reluctant to rule that a legislative scheme of mandated testing was medically or psychologically useless to the victim or the treatment community. The panel concluded that the individual defendant's interest in preventing a bodily intrusion and disclosure of his HIV status is significantly less weighty than the compelling state interest in the health and welfare of the victim and the public. The Appellate Division remanded the case for the entry of an order requiring the juveniles to submit to the testing, and the testing has since occurred. The panel did not address the juveniles' argument that the statutes violate the procedural due process guarantees of the Federal and State Constitutions by allowing a court to require testing of an accused offender prior to conviction or an adjudication of delinquency, noting that the juveniles had been adjudicated delinquent.

This Court granted certification. Because the juveniles pled guilty after the trial court decision, their challenge to the testing of offenders who have been charged with or indicted for a sexual assault is moot. Recognizing that the issue is capable of repetition, the Court will consider it.

HELD : The challenged statutes do not impinge on an offender's federal or state constitutional rights, provided that, before a court orders testing, it finds probable cause to believe that the accused or convicted sex offender has exposed the victim to a risk of possible HIV transmission.

1. When a search is conducted in furtherance of a criminal investigation, the search usually is not deemed reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. An exception may apply when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. Generally, there must be some showing of individualized suspicion. In limited circumstances, however, where the privacy interests implicated are minimal and an important governmental interest would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of suspicion. Recently, the United States Supreme Court has used a special needs analysis in several cases where body searches were conducted not to further a criminal investigation, but rather to promote other important state interests. Federal precedent requires that the special needs analysis of these cases be used to determine whether the testing provisions of the statutes violate the United States Constitution. The Court is persuaded that the requirements of Article I, Paragraph 7 of the New Jersey Constitution are met by this approach. Serological testing of sex offenders is not intended to facilitate the criminal prosecution of those offenders. Both the warrant and individualized suspicion requirements are impractical in this context, since HIV infected sexual offenders often have no outward manifestations of infection. These circumstancs demonstrate a special need requiring the Court to undertake a specific inquiry, examining closely the competing private and public interests advanced by the parties. (pp. 10-15)

2. Although blood sampling may be a relatively routine medical procedure to which most people are accustomed, the subsequent HIV analysis and nonconsensual disclosure is a further, more intrusive invasion. Against the offender's privacy interest, the Court must balance the governmental interest in conducting the search. The State asserts that the statutes further the rights of victims by granting them access to critical medical information about their assailants' HIV or AIDS status. The juveniles argue that the legislation does not further the legitimate goal of victim assistance because the expert testimony presented to the trial court established that there would be no benefit to the victim from the disclosure of an assailant's HIV status. Although the State failed to present any witnesses to rebut the juveniles' experts, the Court presumes that the Legislature was aware of medical and scientific information about AIDS transmission, detection, treatment and counseling. Whether due to the rapidly-evolving nature of AIDS diagnosis and treatment or for other reasons, the near unanimity expressed in the testimony of the juveniles' witnesses does not reflect the diversity of opinion in the medical community. Other medical authorities note that such information may be useful in assessing the risk of infection and deciding whether to undergo experimental prophylactic courses of treatment. Still others believe the psychological benefits to the victim from testing the assailant are significant, and confirm that the victim's desire to know the assailant's HIV status is not irrational. The Court agrees with the Appellate Division that, in these circumstances, a court should be hesitant to dismiss a victim's desire to know the HIV status of his/her assailant. The Court finds that the assailant's privacy interests are outweighed by the benefits to a victim who requests serological testing.

(pp. 16-28)

3. The State's interest in assisting sexual assault victims is predicated on the possibility of transmission of the AIDS virus during the assault. It has been conclusively established that transmission of HIV occurs only when bodily fluids, such as blood, semen, or vaginal secretions, of a person infected with HIV come into contact with the blood or mucous membranes of another person. Neither of the statutes provide sufficient procedural safeguards to ensure that HIV testing occurs only when there is a possibility of HIV transmission as a result of the assault. There must be a showing of probable cause to believe there is a possibility of HIV transmission before a court may order HIV testing of sex offenders. A finding of probable cause can be gleaned from many sources, including the sworn statements of the victim, offender, law enforcement or other witnesses, evidence presented in seeking an arrest warrant, evidence presented at a probable cause hearing, testimony before a Grand Jury, and any evidence presented at trial. The Court anticipates that in most cases, such evidence will be sufficient and an order requiring testing will issue forthwith. If that evidence is not sufficient, the court may, in its discretion, hold a hearing to afford the State the opportunity to demonstrate that probable cause exists. Any hearing should not become a discovery device and should be limited in scope to the issues relevant to AIDS testing. (pp. 28-35)

4. The juveniles assert that the testing statutes violate due process because they do not provide procedural safeguards sufficient to protect the privacy of accused sex offenders who have not been adjudicated delinquent or convicted of a crime. They contend that due process mandates a hearing to establish probable cause to believe the accused committed the sexual assault and that the victim was exposed to the assailant's bodily fluids. As to the later claim, because the Court requires a showing of probable cause that the AIDS virus could have been transmitted to the victim during the assault, there is no due process violation. As to the juveniles' other claims, the return of an indictment necessitates a finding of a prima facie case that the defendant committed the offense. And, in the case of a juvenile, a summons may not issue without a finding of probable cause that the juvenile is delinquent. Thus, the showing that the juveniles seek is already required before testing can be ordered. (pp. 35-37)

The judgment of the Appellate Division is AFFIRMED as MODIFIED.

JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in CHIEF JUSTICE PORITZ's opinion.

The opinion of the Court was delivered by

PORITZ, C.J.

Juveniles J.G., N.S. and J.T. challenge the constitutionality of N.J.S.A. 2C:43-2.2 and N.J.S.A. 2A:4A-43.1, which require sex offenders, *fn1 upon a request by the victim, "to submit to . . . approved serological tests 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." N.J.S.A. 2C:43-2.2a. We granted certification to determine whether such involuntary testing violates rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1 and 7, of the New Jersey Constitution. We hold that the challenged statutes do not impinge on an offender's federal or state constitutional rights provided that, before a court orders testing, it finds probable cause to believe that the accused or convicted sex offender has exposed the victim to a risk of possible HIV transmission.

I

N.J.S.A. 2C:43-2.2a requires a court to order serological testing, at a victim's request and on the prosecutor's application, of "a person convicted of, indicted for or formally charged with . . . aggravated sexual assault or sexual assault as defined in subsection a. or c. of N.J.S. 2C:14-2." Similarly, N.J.S.A. 2A:4A-43.1 calls for testing, in accordance with N.J.S.A. 2C:43-2.2, of a juvenile charged with delinquency or adjudicated delinquent for an act that if committed by an adult would constitute aggravated sexual assault or sexual assault. In addition to an initial test, N.J.S.A. 2C:43-2.2a provides for repeat or confirmatory tests as medically necessary.

Serological tests so ordered must be carried out "as soon as practicable" by the Commissioner of the Department of Corrections, the Juvenile Justice Commission, a health care provider, or a licensed health facility. N.J.S.A. 2C:43-2.2b. Test results must be reported to the offender and to the Office of Victim-Witness Advocacy. Ibid. That office is charged with notifying the victim or making other arrangements for the victim to be notified of the test results. N.J.S.A. 2C:43-2.2e. The office must also "provide the victim with appropriate counseling, referral for counseling and if appropriate, referral for health care." Ibid. N.J.S.A. 2C:43-2.2f requires test results to be kept confidential, and specifically prohibits disclosure by the Department of Corrections, the Juvenile Justice Commission, the Office of Victim-Witness Advocacy, health care providers, and health care facilities or counseling services, except as authorized by the statute "or as otherwise authorized by law or court order." We observe that N.J.S.A. 2C:43-2.2 and N.J.S.A. 2A:4A-43.1 were intended to comply with a federal law conditioning grant money on the enactment of such legislation. See Senate Judiciary Committee, Statement to Assembly Bills No. 897 and No. 220, in N.J.S.A. 52:4B-44.

II

J.G., N.S., and J.T. were thirteen, fourteen, and fifteen years old, respectively, when they were charged in 1994 with juvenile delinquency for acts that would have constituted aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1) if committed by an adult. They had forced a ten-year-old, mentally-retarded girl to engage in anal intercourse and fellatio. Each juvenile eventually pled guilty to the delinquency charges: J.T. on January 18, 1995; N.S. on January 20, 1995; and J.G. on February 23, 1995.

Following the filing of charges, the State moved at the request of the victim for orders compelling the juveniles to submit to tests for AIDS or HIV. The juveniles opposed the State's application on the ground that the testing statutes are unconstitutional, both facially and as applied to them. They asserted that the tests constitute an unreasonable search under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution. They also contended that the statutes violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article I, Paragraph 1 of the New Jersey Constitution because they do not provide sufficient procedural safeguards to protect the privacy rights of persons who have been accused but not convicted of sexual assault.

The Chancery Division held an evidentiary hearing at which the juveniles presented the testimony of three expert witnesses to support their claim that N.J.S.A. 2C:43-2.2 and N.J.S.A. 2A:4A-43.1 are unconstitutional. The witnesses addressed the then-available HIV testing methodologies, medical diagnosis and treatment, and psychological counseling following possible exposure through sexual assault. The State did not present any witnesses. *fn2

The Chancery Division made factual findings with respect to the detection and diagnosis of HIV. 283 N.J. Super. 32, 39-42 (1995). Two tests are commonly used in combination to determine whether a person has been infected with HIV: the enzyme-linked immunosorbent assay (ELISA) test and the Western Blot test. If the ELISA test is positive then the Western Blot is performed to confirm the result. Both tests detect antibodies developed in response to the AIDS virus and do not detect the virus itself. The tests have high rates of "sensitivity" and "specificity," terms used to describe their accuracy in identifying those individuals who are HIV-positive and HIV-negative. *fn3 Generally, however, it takes from three to six months from the date of infection to detect the body's immunological response. During this "window period" an infected person may have a negative test result. Despite this problem, the Chancery Division found that a combination of the ELISA and Western Blot tests is the most appropriate method for diagnosing HIV infection when there may have been exposure through a sexual assault. Id. at 42.

The juveniles' experts testified about the value of the testing authorized by N.J.S.A. 2C:43-2.2 and N.J.S.A. 2A:4A-43.1 in relation to the diagnosis, treatment, and counseling of sexual assault victims. In the opinion of Dr. James Oleske, testing sexual assailants for HIV would provide no medical benefit in the diagnosis or treatment of victims because the test would not reveal whether transmission, which does not occur in all cases, had in fact occurred, and because testing the assailant might produce a false-negative result due to the three- to six-month latency period. Dr. Oleske also testified that, although the drug azidothymidine ("AZT") has been administered to hospital workers following a confirmed injection of HIV-positive blood, this approach was not recommended in sexual assault cases based on its unproven utility and on negative side effects from AZT.

The experts offered their opinions about whether there was any "psycho-social benefit" to the victim in knowing the HIV status of the assailant. In Dr. Oleske's view, victims may suffer actual harm from knowing their assailants' status. They may wrongly rely on a false-negative result and discontinue medical care and testing, or they may react to a positive result without considering their actual risk of infection or their own status. He acknowledged, however, that for the victim and the victim's family "the question of peace of mind, . . . in lay terms, may be real." Dr. Jill Greenbaum testified that victims would not find it psychologically helpful to know the HIV status of their assailants. In her view, such information would not aid in the counseling of victims, but rather, would tie sexual assault victims to the assailant at a time when victims need to focus on their own healing and on regaining control over their lives. She stated that knowing the assailant's HIV ...


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