HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/JUVENILE.ASC

Text File | 1993-01-14 | 65KB | 1,252 lines

/* This case is reported at 847 P.2d 455(Wash. 1993) This case
reviews the constitutionality of testing convicted juveniles for
AIDS when the juveniles were convicted of sex crimes. This very
complete opinion discusses the constitutional constraints on HIV
testing of convicted offenders. Note that the court upholds the
constitutionality of testing even when the sexual conduct was not
capable of transmitting HIV. */

In the Matter of JUVENILES A, B, C, D, E.

Supreme Court of Washington, En Banc.

March 11, 1993.



DURHAM, Justice.

Five juveniles were found to have committed various sexual
offenses under RCW 9A.44. Relying upon RCW 70.24.340(1)(a), which
provides for mandatory AIDS testing of convicted sexual
offenders, the Whatcom County commissioner ordered the juveniles
to submit to an HIV test.  In a direct appeal, the juveniles
challenge the applicability and constitutionality of this
statute. We affirm the commissioner's ruling.

All of the sexual offenses were committed in Whatcom County.
Juvenile "A", a 14-year-old male, was charged with the crime of
indecent liberties, RCW 9A.44.-100(1).  Following a fact finding
hearing, the judge pro tempore found that on or about June 30,
1988, "A" had sexual contact with a younger  boy through forcible
compulsion.  Specifically, "A" held the younger boy down and
"used butter" to "sodomize[]" him.

Juvenile "B", a 14-year-old boy, was charged with first degree
child molestation, RCW 9A.44.083, which occurred on July 15,
1988.  "B" pleaded guilty to this charge, stating that he "kissed
[a 4-year-old girl] on her breast and layed [sic] on top of her."
The affidavit of probable cause further alleged that "B" "removed
her pants and licked and kissed her vaginal area."  The young
girl originally told her parents that penetration had occurred,
but later denied this to the police. The acts of molestation
occurred while "B" was alone with the younger child for a period
of time in his house.

Juvenile "C", a 15-year-old girl, was charged with three counts
of first degree child molestation, RCW 9A.44.083, which occurred
on or about July 1, 1988. The last two counts were dropped when
"C" pleaded guilty to the first count.  In her plea, "C" stated
that:

I let [a 5-year-old boy] lay on top of me. We were both clothed.
I let him touch my breast and look inside my underwear. He also
kissed my mouth.

The affidavit for probable cause contains additional allegations.
First, while babysitting, "C" touched the young boy's penis on
several different occasions.  Second, while baby-sitting a 4-year-
old girl, "C" removed her clothes, scratched herself in the
genitals, and then proceeded to place her hand inside the young
girl's underpants, rubbing her to the point of pain. Finally,
while baby-sitting, "C" undressed a young boy, showed him to the
other children and touched his penis.

Juvenile "D", a 16-year-old male, was charged  with  indecent
liberties,  RCW 9A.44.100(1), which occurred on or about June 2,
1988. "D" pleaded guilty and stated the following:

[An 11-year-old girl] and I went to the Lynden Middle School to
get some pop. I started tickling her, and then I kissed her.  We
started playing around and I asked her if she wanted to go to the
back of the middle school.  She said yes, and we laid down and
she was laughing. We played around some more. I took off her
shirt and unbuttoned her pants and touched her breasts and crotch
area.

The affidavit of probable cause additionally alleged that he
removed his clothes, as well as her clothes.  Moreover, "[h]e
rubbed his genitals and hands against [her] genitals for several
minutes."

Juvenile "E", a 15-year-old boy, was charged with first degree
child molestation, RCW 9A.44.083, which occurred on October
13,1988.  "E" pleaded guilty, stating that he had "sexual
contact" with a 7-year-old boy. According to the probable cause
affidavit, the incident occurred while "E" was baby-sitting a 7-
year-old boy.  On three separate occasions during the evening,
"E" entered the boy's room and placed his mouth on the boy's
penis.

Pursuant to RCW 70.24.340(1)(a), the State sought orders from the
juvenile court allowing HIV testing of all five juvenile
offenders.  Appellants opposed the HIV testing, alleging numerous
constitutional grounds. A hearing was held before Commissioner
Morrow on November 15, 1989, to determine the  constitutional
issues. Commissioner Morrow upheld the statute, finding it
consistent with the Fourth Amendment and the right to privacy. He
later issued an order directing HIV testing of the juvenile
offenders, but then stayed this order pending appellate review.
We accepted Division One's certification of this case.



ADJUDICATION/CONVICTION

As part of the public health chapter covering sexually
transmitted diseases, RCW 70.24.340(1)(a) mandates HIV testing
for all persons "[c]onvicted of a sexual offense under chapter
9A.44 RCW".  Testing is to occur soon after sentencing upon an
order of the sentencing judge.  RCW 70.24.340(2).  All tests are
to be performed by the local health department and must include
both pre- and posttest counseling. RCW 70.24.340.  Distribution
of the test results is strictly limited to those persons with a
genuine interest. RCW 70.24.105(2).

Appellants  argue  that  RCW  70.24.340(1)(a) does not apply to
juvenile sexual offenders, because the statute requires a
"conviction" prior to mandatory HIV testing. Technically
speaking, juveniles are not "convicted" of crimes, but rather
"adjudicated" to have committed offenses. As a result, appellants
contend, the Legislature's use of the word "convicted" evidences
an intent to test only adult sexual offenders.

[1,2]  When statutory language is used in an unambiguous manner
we will not look beyond the plain meaning of the words. Everett
Concrete Prods., Inc. v. Department of Labor & Indus., 109
Wash.2d 819, 822, 748 P.2d 1112 (1988).  Unfortunately, however,
such is not the case with the statute before us.  The statute
uses both the terms "convicted" and "offense" without
differentiation. Subsection (1) of RCW 70.24.340 uses the term
"convicted of", while subsection (3) states that the section
applies to "offenses" -- a term inclusive of both adult and
juvenile crimes. [footnote 1]  Furthermore, the Legislature's use
of "conviction" in statutes to refer to juveniles appears to be
endemic.  Numerous other statutes, including sections of the
Sentencing Reform Act of 1981, RCW 9.94A, and the Juvenile
Justice Act of 1977, RCW 13.40, use "convicted" to reference both
adult and juvenile offenders.  See, e.g., RCW 9.94A.030(9)
("'Conviction' means an adjudication of guilt".); RCW
9.94A.030(12)(b) ("Criminal history" includes a defendant's prior
convictions in juvenile court.);  RCW 13.40.280(4) (refers to the
"convicted juvenile"); RCW 43.43.830(4) ("Conviction record" in
cludes crimes committed while either an adult or juvenile.); RCW
46.20.342(2) (refers to the "conviction" of a juvenile); RCW
74.13.034(2) (refers to "convicted juveniles").  In fact, several
statutes use "convicted" specifically to reference juvenile
sexual offenders.  RCW 9.94A.360; RCW 9A.44.130(3)(a) ("the term
'conviction' refers to adult convictions and juvenile
adjudications"). It is readily apparent, therefore, that we
cannot rely exclusively on the technical meaning of "convicted"
to resolve this issue. [footnote 2]

Instead, it is necessary to turn to statutory construction to
determine the meaning of this statute.  Morris v. Blaker, 118
Wash.2d 133, 143, 821 P.2d 482 (1992).  In accomplishing this
task, our primary directive is to adopt that interpretation which
best advances the statute's legislative purpose.  See, e.g.,
State v. Elgin, 118 Wash.2d 551, 555, 825 P.2d 314 (1992).

The purposes of the mandatory HIV testing statute are broad:

The legislature declares that sexually transmitted diseases
constitute a serious and sometimes fatal threat to the public and
individual health and welfare of the people of the state. The
legislature finds that the incidence of sexually transmitted
diseases is rising at an alarming rate and that these diseases
result in significant social, health, and economic costs,
including infant and maternal mortality, temporary and lifelong
disability, and premature death.  RCW 70.24.015.  By adopting
this statute, the legislative intent was "to provide a program
that is sufficiently flexible to meet emerging needs, deal[]
efficiently and effectively with reducing the incidence of
sexually transmitted diseases, and provide[] patients with a
secure knowledge that information they provide will remain
private and confidential."  RCW 70.24.015.

Interpreting RCW 70.24.340(1)(a) so as to include mandatory HIV
testing of juvenile sexual offenders is consistent with the stat
ute's broad public health policies. [footnote 3]  The statute
potentially benefits both juveniles and society by making the
offenders aware of their HIV status.  Anonymous Fireman v.
Willoughby, 779 F.Supp. 402, 417 (N.D. Ohio 1991).  If a juvenile
sexual offender is infected, the statute provides counseling, and
an opportunity to adjust future behavior to avoid infecting
others. A juvenile sexual offender who is aware of an infection
might also be treated with AZT or other drugs to stall the
onslaught of the disease.  Government of V.I. v. Roberts, 756
F.Supp. 898, 903-04 (D.V.I.1991). The victims of the juvenile
sexual offender also benefit by learning whether they may have
been exposed to the AIDS virus.

Excluding juvenile sexual offenders from the statute's operation
would only thwart the testing statute's broad public health
policies. There is no evidence that the Legislature intended to
limit the effectiveness of the mandatory AIDS testing statute by
narrowing its application to adult sexual offenders. Indeed, the
legislative mandate to protect the health of victims, offenders,
and society is better served when juvenile sexual offenders are
included in RCW 70.24.340(1)(a)'s testing provisions.

Appellants rely heavily upon a recent Attorney General opinion,
AGO 23 (1991), which concluded that RCW 70.24.340(l)(a) does not
apply to juveniles.  In reaching this conclusion, the AGO relied
primarily upon In re Frederick, 93 Wash.2d 28, 604 P.2d 953
(1980), which addressed the applicability of a general criminal
statute to juvenile offenders.  Because the HIV testing statute
"impose[d] a disability or mandatory requirement, rather than a
benefit, on a juvenile," the AGO concluded that Frederick limits
the statute's application to adult offenders.  AGO 23, at 4.

[3]  This reasoning is not persuasive. AGO 23 fails to recognize
that the mandatory HIV testing statute is a public health law,
not a criminal one.  The testing statute does not define the
elements of a crime, nor does anyone suggest that testing is
imposed as an additional punitive measure. As such, special
protections applicable to criminal statutes, like the rule of
lenity, are not relevant. Moreover, the AGO misreads Frederick.
That case did not address the meaning of "convicted", but rather
the meaning of "felony". [footnote 4]  It held only that
juveniles do not commit "felonies" -- they commit "offenses".
Frederick, at 30, 604 P.2d 953.  In contrast, the HIV testing
statute does not use the word "felony"; it uses the broader term
"offense", which does apply to juveniles.

In short, the Attorney General's reliance on Frederick is
misplaced because the concerns that motivated the analysis in
that case are not present here. [footnote 5] We there fore apply
our normal rules of statutory construction and construe the
testing statute to include juvenile sexual offenders.



FOURTH AMENDMENT

[4, 5]  Appellants argue that taking a blood sample for an HIV
test violates constitutional prohibitions against unreasonable
searches and seizures. [footnote 6]  See U.S. Const. amend 4;
Const. art. 1,  7. There is no doubt that the nonconsensual
removal of blood constitutes a Fourth Amendment search. Skinner
v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616,109 S.Ct.
1402,  1412,  103  L.Ed.2d  639  (1989); Schmerber v. California,
384 U.S. 757, 767-68, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).
Nonetheless, the Fourth Amendment does not prohibit all searches,
but only unreasonable ones.  Camara v. Municipal Court, 387 U.S.
523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967).  Although
reasonableness often requires the existence of probable cause or
a warrant, a "showing of individualized suspicion is not a
constitutional floor". Skinner, 489 U.S. at 624,109 S.Ct. at
1417. Instead, what is reasonable "depends on all of the circum
stances surrounding the search or seizure and the nature of the
search or seizure itself." Skinner, at 619,109 S.Ct. at 1414
(quoting United States v. Montoya de Hernandez, 473 U.S. 531,
537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985)).

(6]  For searches outside the criminal context, the Supreme Court
has developed the "special needs" doctrine. This doctrine applies
"when 'special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.'"
Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (citations omitted).
Such a situation existed in Skinner, where the Court sanctioned
the use of urine and blood tests in an effort to prevent train
accidents. The Court has also found special needs rendering
warrant and probable cause requirements impractical in the
supervision of probationers, the operation of schools, searches
of highly regulated businesses, and the operation of prisons.
Skinner, at 619-20, 109 S.Ct. at 1414-15.  Numerous courts have
found the special needs doctrine to be appropriate when analyzing
nonconsensual HIV testing. See, e.g., Leckelt v. Board of Comm'rs
of Hosp. Dist. 1, 909 F.2d 820, 832 (5th Cir.1990);  Dunn v.
White, 880 F.2d 1188,1193 (10th Cir.1989), cert. denied, 493 U.S.
1059,110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Anonymous Fireman v.
Willoughby, 779 F.Supp. 402, 417 (N.D.Ohio 1991); Johnetta J. v.
Municipal Court, 218 Cal.App.3d 1255,1272, 267 Cal. Rptr. 666
(1990).

We agree with this approach.  When evaluating nonconsensual HIV
testing, this doctrine requires that we determine:

(1)  whether the blood testing scheme arises from a "special
need" beyond the needs of ordinary law enforcement and (2) if so,
whether the intrusion of compulsory blood testing for AIDS,
without probable cause or individualized suspicion that the AIDS
virus will be found in the tested person's blood, is justified by
that need.

Johnetta J., 218 Cal.App.3d at 1274, 267 Cal.Rptr. 666.

[7]  As to the first question, several factors are relevant.
First, the testing statute is not part of the criminal code; it
is designed to protect the victim, the public, and the offender
from a serious public health problem. Second, unlike the typical
Fourth Amendment situation, the appellants  are not being tested
in an effort to gain evidence for a criminal prosecution. Third,
a positive HIV test does not place the appellants at risk for a
new conviction or a longer sentence.  Finally, traditional stan
dards which require individualized suspicion are impractical
because HIV infected sexual offenders often have no outward
manifestations of infection. Thus, we conclude that mandatory HIV
testing of sexual offenders under RCW 70.24.340(1)(a) presents a
special need.  Accord Dunn, 880 F.2d at 1196; Love v. Superior
Court, 226 Cal.App.3d 736, 743, 276 Cal.Rptr. 660 (1990);
Johnetta J, 218 Cal.App.3d at 1280, 267 Cal.Rptr. 666.

[8]  The next step in the Skinner inquiry is to balance the
individual's interest in avoiding testing against the
government's interest in mandatory testing.  In general, for
individuals, the impact of a blood test is minimal.  State v.
Meacham, 93 Wash.2d 735, 737, 612 P.2d 795 (1980).  As the Su
preme Court recognized in Winston v. Lee, 470 U.S. 753, 762,105
S.Ct. 1611, 1617, 84 L.Ed.2d 662 (1985), it is "society's judg
ment that blood tests do not constitute an unduly extensive
imposition on an individual's personal privacy and bodily integri
ty." [footnote 7]

When the State seeks to test a convicted criminal, the intrusion
on individual interests is even more limited.  Jones v. Murray,
962 F.2d 302, 307 (4th Cir.1992).  Although such individuals do
not forfeit their rights, their constitutional prerogatives are
subject to "substantial limitations and restrictions".  See
Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990).  For sexual
offenders in particular, their expectation of privacy in bodily
fluids is greatly diminished because they have engaged in a class
of criminal behavior which presents the potential of exposing
others to the AIDS virus. As one commentator has explained,

Because  AIDS  can  be  transmitted through sexual contact, there
is a direct nexus between the criminal behavior and the
government's action.  Therefore, the offender should reasonably
expect that his blood will be tested for the virus. The
assailant's own actions work to weaken his expectation of
privacy.

Bernadette Pratt Sadler, Comment, When Rape Victims' Rights Meet
Privacy Rights: Mandatory HIV Testing, Striking the Fourth
Amendment  Balance,  67 Wash.L.Rev. 195, 207 (1992).

Despite this minimal expectation of privacy, we are nonetheless
sensitive to the special concerns raised by mandatory HIV
testing. Such testing presents not only the initial withdrawal of
blood, but also the subsequent testing of that blood for a sex
ually transmitted disease.  Government of V.I. v. Roberts, 756
F.Supp. 898, 901 (D.V.I. 1991).  If the sexual offender tests
positive, then he or she might suffer the well-documented
gauntlet of discrimination facing infected persons. See
generally, Howell v. Spokane & Inland Empire Blood Bank, 117
Wash.2d 619, 628, 818 P.2d 1056 (1991); Roberts, 756 F.Supp. at
902.

These potential harms, however, are minimized in the case before
us. The stigma a person faces as a result of a positive HIV test:

is a function of how widely the results are disseminated.  The
risk of stigmatic harm therefore speaks not to whether the search
should transpire in the first instance, but rather to the extent
to which the private medical facts learned from the procedure
should be disclosed.

Roberts, 756 F.Supp. at 902. Washington's mandatory AIDS testing
statute emphasizes the importance of privacy and confidentiality.
RCW 70.24.015.  The statute specifically limits the disclosure of
HIV test results, RCW 70.24.105(2), and appellants do not allege
how this limited disclosure might harm juvenile offenders. Thus,
given this limited disclosure, we conclude that the  testing
presents  "a  minimal Fourth Amendment intrusion."  Johnetta J.,
218 Cal.App.3d at 1279, 267 Cal.Rptr. 666.

[9]  In contrast, the State's reasons for testing are
substantial.  Most notably, the State has a compelling interest
in combating the spread of AIDS.  Anonymous Fireman, 779 F.Supp.
at 416. Control of a communicable disease is a valid and com
pelling exercise of the State's police power. Love, 226
Cal.App.3d at 740, 276 Cal.Rptr. 660. Testing sexual offenders
directly addresses this purpose.  See People v. C.S. 222
Ill.App.3d 348, 583 N.E.2d 726 (1991), appeal denied, 146 Ill.2d
636, 602 N.E.2d 461(1992).

The State also has an interest in protecting the rights of
victims. As the Johnetta J. court pointed out:

Patients are anxious to know the HIV status of the person with
whom they have come into contact.  This information is useful for
both the treating physician and the patient.  A positive test of
the person who may have infected the patient would inform the
physician that additional and more extensive monitoring of the
patient's medical condition is war-ranted than would be the case
were the results of the test negative.  If the results of the HIV
test of the source is negative, this information may be useful in
helping to allay the concerns of the patient.

218 Cal.App.3d at 1266, 267 Cal.Rptr. 666 (quoting Dr. William
Drew, M.D.). Where a victim is left to wonder as to an attacker s
HIV status, the "mental anguish suffered by the victim ..  is
real and continuing, and the intrusion upon defendant of a
routine drawing of a blood sample is very minimal and
commonplace."  People v. Thomas,  139  Misc.2d  1072,  1075,  529
N.Y.S.2d 429, 431 (Cy.Ct.1988).

A test can also aid in effective prison and probation management
by alerting officials to a sexual offender's HIV status.  "The
outcome of a potential source's test affects the degree to which
a person should undertake precautionary measures to ensure the
Virus is not spread to others."  Roberts, 756 F.Supp. at 904.
Testing can prepare officials to better protect other inmates.
Moreover, when HIV status is known, a prisoner can receive
appropriate treatment to possibly stall the onslaught of symp
toms.  This helps to further the State's constitutional
"obligation to provide minimally adequate medical care to those
whom they  are  punishing  by  incarceration." Harris v. Thigpen,
941 F.2d 1495, 1504 (11th Cir.1991).

The State has a further interest in aiding a sexual offender who
is potentially HIV Positive.  By providing pre- and post- test
counseling, the State can minimize the impact of HIV status on
the offender and protect future victims by helping an offender to
alter behavior. Although there is no cure for AIDS, this fact
does not justify an enforced ignorance of HIV status. The
governmental interest supporting mandatory HIV testing "outweighs
the psychological impact of the assailant's receipt of a positive
test for HIV."  Johnetta J, 218 Cal.App.3d at 1278, 267 Cal.Rptr.
666.

Appellants may be correct that only on occasion will testing
reveal an HIV infected offender, and that an infected offender
will not always pass the virus on to a victim. Nonetheless, the
State's interest in testing is still substantial.  Although an
HIV test is not dispositive of either victim or offender HIV
status, it is effective enough to justify its use. Johnetta J,
218 Cal.App.3d at 1280, 267 Cal.Rptr. 666; Roberts, 756 F.Supp.
at 903.  Lack of perfection does not render a legislative scheme
invalid. Although testing may be an ineffective use of state
resources, it is not for the court to pass on the fiscal wisdom
of this legislation. Johnetta J, 218 Cal.App.3d at 1285, 267
Cal.Rptr. 666.

[10]  Appellants also argue that the statute improperly includes
behavior which is incapable of passing the virus.  For example,
some of the cases before us involve no passing of bodily fluids.
However, the Legislature has reasonably determined that sexual
offenders are a high-risk group for exposing others to the AIDS
virus.  See People v. C.S., 222 Ill.App.3d 348, 583 N.E.2d 726,
729 (1991), appeal denied, 146 Ill.2d 636, 602 N.E.2d 461(1992).
The fact that the particular act for which an offender was
prosecuted involved a minimal risk of exposure to HIV does not
remove the State's interest in testing.  First, the ambiguous
nature of the contacts between offender and victim enforces the
legislative judgment to test all offenders.  Given the youth of
the victims and the trauma imposed by the offender, it is often
difficult to learn whether bodily fluids passed during the
assault.  Second, a legislative desire to protect the victim,
offender, and society supports testing.  Sexual assaults are
seldom isolated events.  When an offender is finally caught, it
is possible that he or she has  already committed numerous other
sexual assaults or may commit more assaults in the future.  These
contacts all potentially involve passing the AIDS virus.
Finally, even though the probability of passing the AIDS virus is
low, because there is no cure for AIDS, the potential harm from
an infection is extremely high.  Leckelt, 909 F.2d at 829. With
all this in mind, it is within the legislative prerogative to
declare mandatory testing for all members of this high-risk
group.

We recognize that the constitutional arguments raised here
involve highly sensitive and difficult issues. As such, we have
attempted to formulate a careful and reasoned approach. Still,
the concurrence/dissent claims that there is no limiting
principle in the majority opinion. It asks: "what is to prevent
the mandatory testing of other groups whose individual members
are not charged and convicted of criminal conduct?" Concurrence/
dissent, at 466. Fortunately, the question incorporates the
answer. The holding in this case applies only to convicted sex
offenders who, as discussed above, are subject to decreased
expectations of privacy. See supra 459460. There are no other
"groups" included -- either explicitly or implicitly -- in our
holding.

In sum, we hold that the mandatory HIV testing of sexual
offenders comports with the Fourth Amendment.  Under Skinner,
this testing constitutes a special need which is "obvious and
compelling."  Love, 226 Cal.App.3d at 743, 276 Cal.Rptr. 660;
accord Dunn, 880 F.2d at 1193-94; Johnetta J., 218 Cal.App.3d at
1280, 267 Cal. Rptr. 666.

[11]  Appellants  further  argue  that mandatory HIV testing
violates the constitutional right to privacy.  We have recognized
two types of privacy: the right to nondisclosure of intimate
personal information or confidentiality, and the right to
autonomous decisionmaking.  0 'Hartigan v. Department of
Personnel, 118 Wash.2d 111,117, 821 P.2d 44 (1991); Bedford v.
Sugarman, 112 Wash.2d 500, 509, 772 P.2d 486 (1989).  The former
may be compromised when the State has a rational basis for doing
so, O'Hartigan, at 117, 821 P.2d 44, while the  latter may only
be infringed when the state acts with a narrowly tailored
compelling state interest. [footnote 8]  State v. Farmer, 116
Wash.2d 414, 429, 805 P.2d 200, 812 P.2d 858 (1991).

Although the RCW 70.24.340(1)(a) testing scheme  implicates  the
confidentiality branch of privacy, the intrusion is minimal due
to the limited disclosure of test results. As discussed above,
the intrusion on one's privacy is a direct result of how widely
test results are disseminated.  Here, a concern for
confidentiality is an inextricable part of the testing scheme:

The legislature further finds that sexually transmitted diseases,
by their nature, involve sensitive issues of privacy, and it is
the intent of the legislature that all programs designed to deal
with these diseases afford patients privacy, confidentiality, and
dignity....  It is there fore the intent of the legislature to
provide a program that ... provides patients with a secure
knowledge that information they provide will remain private and
confidential.

RCW 70.24.015.  Given the strong state interest in testing, we
find no conflict with this branch of privacy.

Nor do we find conflict with the autonomy branch of privacy. The
nonconsensual taking of blood implicates the personal autonomy
branch of privacy.  Farmer, at 429, 805 P.2d 200.  Nonetheless,
the various compelling state interests served by RCW
70.24.340(1)(a) legitimate whatever impact it has on personal
autonomy rights. [footnote 9]

As discussed above, mandatory testing of sexual offenders
protects society from a communicable disease, safeguards the
interests of victims, facilitates the efficient operation of
prisons, and provides opportunities to treat and counsel
offenders themselves.  Moreover, the statute is narrowly tailored
to meet these interests because it is aimed at a high-risk group,
and it limits disclosure of test results.  This limited intrusion
on an offender's privacy rights is permissible. Farmer, 116
Wash.2d at 430, 805 P.2d 200; Dunn, 880 F.2d at 1196; Government
of  V.I.  v.  Roberts,  756 F.Supp. 898, 903 (D.V.I.1991);  see
also Anonymous Fireman v. Willoughby, 779 F.Supp. 402, 418
(N.D.Ohio 1991).

Thus, we hold that the testing of sexual offenders under RCW
70.24.340(1)(a) is reasonable under the Fourth Amendment because
substantial governmental interests are served by testing and the
disclosure of those test results to a limited group of people
eclipses the defendants' interests in preventing the search.
Testing is also consistent with the right to privacy.  We are
supported in these conclusions by a majority of other courts
which have dealt with the issue. [footnote 10] We therefore
affirm the commissioner, and remand the case for HIV testing of
the juvenile sexual offenders.



ANDERSEN, C.J., and BRACHTENBACH, SMITH and GUY, JJ., concur.



UTTER, Justice (concurring in part, dissenting in part).

I disagree with the majority's conclusion that AIDS testing of a
sex offender is Constitutionally valid even when that individual
has not engaged in conduct capable of transmitting the virus.  I
would hold that AIDS testing of sex offenders is only permissible
where there is probable cause to believe that an offense has been
committed involving the transfer of blood, semen, or other bodily
fluid capable of transmitting the AIDS virus.

In this case, the majority abandons one of the core elements of
the Fourth Amendment, significantly diminishing the protection
afforded by that Amendment, on the grounds that sexual offenders
are a "highrisk" group for transmission of the AIDS virus.  While
the majority's recognition of the grave public threat posed by
AIDS is admirable, it is precisely when the public need seems
most dire that we must most resolutely defend those freedoms
which lie at the core of our society.  As Justice Thurgood
Marshall so aptly reminded us:

History teaches that grave threats to liberty often come in times
of urgency, when constitutional rights seem too extravagant to
endure....  [W]hen we allow fundamental freedoms to be sacrificed
in the name of real or perceived exigency, we invariably come to
regret it.

(Citations omitted.)  Skinner v. Railway Labor Executives' Ass'n,
489 U.S. 602, 635, 109 S.Ct. 1402,1422,103 L.Ed.2d 639 (1989)
(Marshall, J., dissenting).  Posterity will judge us not only in
how effectively we as a society respond to crisis posed by the
AIDS virus, but also by the extent to which we respect the
liberty and dignity of our citizens as we face the challenge
posed by AIDS.



THE FOURTH AMENDMENT

The majority is correct in concluding AIDS testing of sexual
offenders should be analyzed under the "special needs" doctrine
described by the United States Supreme Court in Skinner.
Nonetheless, I disagree with both the majority's interpretation
of the "special needs" inquiry and with its application to the
facts of the present case.

A.

The Fourth Amendment to the Federal Constitution protects the
citizens of this country against "unreasonable searches and
seizures". U.S. Const. Amend. 4. The touchstone of this
protection  is  that "searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment-subject only to a few
specifically established and well-delineated exceptions."
California v. Acevedo, -- U.S. -- ,111 S.Ct. 1982,1991, 114
L.Ed.2d 619 (1991) (quoting Mincey v. Arizona, 437 U.S. 385, 390,
98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978)).

One of those limited exceptions is the "special needs" test
described in Skinner, supra.  Under this test, governmental
agencies may dispense with the ordinary warrant and probable
cause requirements when those requirements impede the pursuit of
an important governmental objective. In Skinner, for example, the
United States Supreme Court upheld a mandatory drug testing
scheme for railroad employees that did not provide for
individualized suspicion prior to testing.

In describing this "special needs" analysis, the Skinner Court
stated:  "When faced with ... special needs, we have not
hesitated to balance the governmental and privacy interests to
assess the practicality of the warrant and probable cause
requirements".  489 U.S. at 619, 109 S.Ct. at 1414. [footnote 1]

The "special needs" analysis therefore focuses not only on the
need for the government to undertake a particular type of search,
but also upon the need for the government to undertake such a
search without the ordinary warrant and probable cause
requirements.  In other words, it is not only the special need to
search that is at issue, but also the special need to search
without a warrant or probable cause.

The holding of Skinner reflects this understanding of the
"special needs" analysis.  In Skinner, the Court focused its
attention on the need to test without a warrant or probable
cause, not simply on the need to test in the first place.  The
mandatory testing program was not upheld merely because of the
grave need to ensure public safety, but rather because warrant
and probable cause  requirements would have been impractical
under the circumstances. After identifying the need for safety,
the Court described its inquiry: "The question that remains,
then, is whether the Government's need to monitor compliance with
these restrictions justifies the privacy intrusions at issue
absent a warrant or individualized suspicion." 489 U.S. at 621,
109 S.Ct. at 1415.

In applying the test to the warrant requirement, the Skinner
Court balanced the private interests in a warrant requirement
against the impact such a requirement would have on the pursuit
of public safety. In particular, the Court directed its inquiry
to the extent to which a warrant require ment would "frustrate
the governmental purpose behind the search."  489 U.S. at 623,109
S.Ct. at 1416 (quoting Camara v. Municipal Court of San
Francisco, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930
(1967)).  See also Schmerber v. California, 384 U.S. 757, 86
S.Ct. 1826, 16 L.Ed.2d 908 (1966) (warrantless blood test for
alcohol permissible because delay would allow alcohol to be
physically absorbed, thus destroying evidence).  After weighing
these interests, the Court concluded the warrant requirement
would be impractical under the circumstances.

The Court analyzed the probable cause requirement in similar
fashion by asking whether such a requirement would place the
government's interest "in jeopardy". 489 U.S. at 624, 109 S.Ct.
at 1417.  Ultimately, the Skinner Court dispensed with the
probable cause requirement because "[i]t would be unrealistic,
and inimical to the government's goal of ensuring safety in rail
transportation, to require a showing of individualized suspicion
in these circumstances."  489 U.S. at 631, 109 S.Ct. at 1420.

This distinction between policy analysis of the testing itself
and analysis of the warrant and probable cause requirements is
more than a distinction without a difference. Simply because a
pressing need for testing exists does not mean that a pressing
need for testing without a warrant or probable cause exists.  In
Barlow v. Ground, 943 F.2d 1132 (9th Cir.1991), for example, the
Ninth Circuit held an otherwise reasonable search invalid for
failure to obtain a warrant. The plaintiff, Barlow, had bitten
two police officers during his arrest.  Concerned about the
possibility of AIDS, the police administered a nonconsensual
blood test without a warrant.  Later, the police attempted to
justify the search on safety and health grounds.  The Ninth
Circuit rebuffed their efforts.  It noted that "[i]t makes no
difference to the officers' health whether Barlow was tested
immediately, without a warrant, or a short time later pursuant to
a warrant."  943 F.2d at 1139.  Therefore, the police could show
no reason for an immediate, warrantless search.

The Skinner framework thus appears clear enough. Even after the
identification of a "special need", the Fourth Amendment requires
a demonstration that a warrant or probable cause requirement is
impractical.

The "special needs" balancing should therefore compare the effect
of such requirements on both an individual's privacy interests
and upon the pursuit of the government's "special need."

B.

The majority, however, applies a different version of this
analysis.  According to the majority, the essence of the "special
needs" inquiry is "to balance the individual's interest in
avoiding testing against the government's interest in mandatory
testing." Majority Opinion, at 460. In stating the inquiry in
this fashion, the Skinner analysis of the practicality of the
probable cause requirement is mistaken for a policy evaluation of
the need for the testing itself.

The majority's analysis of the competing interests at stake
tracks its understanding of the "special needs" analysis. After
discussing the "minimal Fourth Amendment intrusion" of blood
testing, the majority describes the State's interests in testing.
These interests are "a compelling interest in combating the
spread of AIDS", majority opinion, at 460, "protecting the rights
of victims", majority opinion, at 461, "effective prison and
probation management", majority opinion, at 461, and providing
assistance to HIV-positive sex offenders, majority opinion, at
461.

As I outline in section C below, I do not believe these interests
justify the sort of broad-gauged testing authorized by RCW
70.24.340. At this stage, however, the important analytic point
is that none of these interests speak to the impracticality of
probable cause.  Each of these interests may provide
justification for a testing program, even a nonconsensual testing
program, but they do not explain a testing program without
probable cause.

Following its "special needs" analysis, the majority does attempt
to defend the statute's disturbing omission of probable cause.
Principally, it argues that "the Legislature has reasonably
determined that sexual offenders are a high-risk group for
exposing others to the AIDS virus."  Majority opinion, at 461.

Hence, even if there is no reason to believe that a sexual
offender transmitted bodily fluids in this particular instance,
it is reasonable to assume they did so in the past (or will do so
in the future) and therefore we can force them to undergo a test.

I cannot accept the logical implications of such a view.  In
essence, the majority has concluded that the Legislature need
merely make a "reasonable determination" of risk in order to
require mandatory testing.  In this case, that determination
means the mandatory testing of sex offenders.  The majority's
rationale, however, could be extended much further.  If all the
Legislature must do is make a "reasonable determination" of risk
in order to require testing, what is to prevent the mandatory
testing of other groups whose individual members are not charged
and convicted of criminal conduct?  Because I perceive no limit
ing principle to the majority's analysis, I cannot accept its
reading of the Fourth Amendment. While the majority does spe
cifically limit its holding, the inescapable implications to be
drawn from the holding cannot be so limited.

Fourth Amendment "special needs" analysis should be based on the
practicality of a probable cause requirement and not our
"assumptions" about whether individuals may or may not be
dangerous. In Skinner, drug testing without probable cause was
allowed because it would have been impractical, not because
Congress "reasonably assumed" railway employees to belong to a
"high-risk" group.

The majority also attempts to defend the breadth of the statute
due to the "ambiguity" of the contacts between offender and
victim.  Majority opinion, at 461.  In this respect, it is useful
to remember we are not considering proof but merely probable
cause.  To require testing, the authorities would not need to
prove transmission, but merely establish probable cause.  Further
more, the type of finding required by probable cause would be no
different than a multitude of the factual findings we expect our
trial courts to make daily.

C.

Even if we accept the majority's view of "special needs"
analysis, the interests it identifies are insufficient to justify
the broad-gauged mandatory testing it seeks to uphold.

First, the majority argues "the State has a compelling interest
in combating the spread of AIDS." Majority opinion, at 460. This
argument, like the justification for statute's lack of probable
cause, proves too much. If "combating the spread of AIDS" is
compelling and blood tests are only minimally intrusive,
[footnote 2] then conceivably the Legislature can
constitutionally choose to require mandatory testing for any
individual whether charged and convicted or not.

The majority next argues "[t]he State also has an interest in
protecting the rights of victims."  Majority opinion, at 461.  It
points out, appropriately, that victims left to wonder about
their attacker's HIV status suffer real mental anguish. This con
cern is completely misplaced, however, in cases where there is no
possibility of HIV infection.  When there is no possibility of
infection, the State's interest in protecting the victim of a
sexual offender from AIDS is no greater than its interest in
protecting the victim of a mugger or an automobile thief whose
offense poses no possibility of HIV infection.  Most importantly,
such an interest can not be said to be generally compelling.
Such an interest would he compelling where there was a
possibility of infection, as in the case where there was probable
cause to believe there was a transmission of bodily fluids.

The majority also argues testing can "aid in effective prison and
probation manage ment by alerting officials to a sexual of
fender's HIV status." Majority opinion, at 461. It may be true
that knowledge of the HIV status of prison inmates might serve
the compelling state interest in prison management; however, the
testing authorized by RCW 70.24.340(1)(a) is not associated in
any fashion with incarceration. [footnote 3]  In fact, RCW
70.24.340 clearly requires testing when there is no possibility
of incarceration.

The majority's concern with probation management is also
unpersuasive.  The majority does not explain how knowledge that a
given individual is HIV positive will substantially assist a
probation officer in the performance of his or her duties. While
it is true that any information about a probationer may be useful
to a probation officer, that alone does not indicate the presence
of a compelling state interest.

Lastly, the majority contends  "[t]he State has a further
interest in aiding a sexual offender who is potentially HIV pos
itive."  Majority Opinion, at 461.  Again, this type of argument
proves too much.

The State's interest in assisting a sexual offender who is
potentially HIV positive is no greater than its interest in
assisting any other sort of criminal offender. Unless we are
prepared to permit the legislature to demand mandatory testing of
all criminal offenders, we cannot accept the State interest put
forth by the majority as compelling.

D.

I believe an appropriate application of the "special needs" test
would require the existence of probable cause to believe that
transmission of bodily fluids occurred be fore nonconsensual HIV
testing could take Place.

The first step is to evaluate the individual's interest in a
probable cause requirement. In doing so, we should be mindful of
the invasiveness of an AIDS test.  Although the United States
Supreme Court has indicated that in some instances extraction of
blood is minimally invasive for fourth amendment purposes,
[footnote 4] AIDS testing is different. First, the analysis of an
individual's blood compromises the individual's privacy interest
in his or her medical condition. This court has repeatedly
emphasized that individuals have an important privacy interest in
medical information. Howell v. Spokane & Inland Empire Blood
Bank, 117 Wash.2d 619, 628, 818 P.2d 1056 (1991); Bedford v.
Sugarman, 112 Wash.2d 500, 50910, 772 P.2d 486 (1989). [footnote
5]

More importantly, AIDS testing, unlike blood alcohol or drug
testing, can have a devastating impact on an individual's life.
See Sandler, Comment, When Rape Victims' Rights Meet Privacy
Rights: Mandatory HIV Testing, Striking the Fourth Amendment
Balance, 67 Wash.L.Rev. 195, 2084)9 (1992). The psychological
impact on the individual has been compared to a death sentence.
People v. Thomas, 139 Misc.2d 1072,1075, 529 N.Y.S.2d 429, 431
(Cy.Ct.1988); see also Glover v. Eastern Neb. Comm'ty Office of
Retardation, 686 F.Supp. 243, 248 (D.Neb.1988) (describing
patients' reactions to a positive AIDS test as "devastation" that
may lead to suicide), affd, 867 F.2d 461(8th Cir.), cert. denied,
493 U.S. 932, 110 S.Ct. 321,107 L.Ed.2d 311(1989).

The social consequences can be equally devastating.  A positive
AIDS test may lead to discrimination in employment, education,
housing, and medical treatment. Howell v. Spokane & Inland Empire
Blood Bank, 117 Wash.2d 619, 628, 818 P.2d 1056 (1991); Note,
Compulsory AIDS Testing of Individuals Who Assault Public Safety
Officers: Protecting the Police or the Fourth Amendment?  38
Wayne L.Rev. 461, 481(1991).  The impact of a positive AIDS test
on all aspects of a person's life is severe. Thus, individuals
have a strong interest in restricting mandatory government AIDS
testing.  The probable cause requirement serves to protect this
interest by limiting the opportunity for government imposed
testing to those circumstances when transmission of the AIDS
virus is possible.

The need for the probable cause requirement is not minimized by
the provisions for limited disclosure in RCW 70.24.105.  The
extent of disclosure does not diminish the psychological shock of
a positive AIDS test. The long list of those other than the
victim who can obtain the test results-state or local public
health officers, claims management  personnel,  social  services
workers, and anyone who can demonstrate good cause, only to name
a few-indicates that disclosure may not in fact be so limited.
Even with limited disclosure, an inherent difficulty in keeping
test results confidential remains. See Paul H. MacDonald, Note,
AIDS,  Rape,  and  the  Fourth Amendment:  Schemes for Mandatory
AIDS Testing of Sex Offenders, 43 Vand. L.Rev. 1607,1633 (1990)
(noting that many believe that there are too many opportunities
for disclosure even where disclosure is restricted). One leak can
have devastating consequences for an individual's privacy. Doe v.
Borough  of Barrington,  729 F.Supp. 376, 378-79 (D.N.J.1990)
(disclosure of Doe's HIV positive status by police officer to a
neighbor culminated in a maelstrom of public hysteria).

With respect to the government's interest, a probable cause
requirement would not be impractical under the circumstances.
While I agree the State has a powerful interest in protecting the
victims of sexual offenders from AIDS, [footnote 6] AIDS is trans
mitted "only by contact of open wounds or body cavities with
blood, semen, or vaginal secretions-usually in sexual relations,
by infusion or innoculation [sic] of blood in transfusions or
intravenous needle-sharing activities or prenatally."  Harris v.
Thigpen, 727 F.Supp. 1564, 1567 (M.D.Ala. 1990), aff'd in part,
vacated in part, 941 F.2d 1495 (11th Cir.1991); see also Fried-
land & Klein, Transmission of the Human Immunodeficiency Virus,
317 New Eng. J.Med. 1125, 1132 (Oct. 29, 1987) (noting that
"[o]nly blood and semen have been directly implicated in
transmission, and transmission by vaginal fluid and breast milk
probably occurs").  Thus, the State's interest in protecting the
victim of sexual assaults from AIDS is only implicated where
there was a transmission of bodily fluids.

The Eighth Circuit has recognized the limited nature of the
State's interest in this regard.  In Glover v. Eastern Nebraska
Community Office of Retardation, 867 F.2d 461(8th Cir.), cert.
denied, 493 U.S. 932,110 S.Ct. 321,107 L.Ed.2d 311(1989), that
court held non-consensual AIDS testing was unconstitutional where
the risk of transmission was negligible or non-existent.  A
Nebraska administrative agency had created a personnel policy
requiring certain employees who serviced the needs of the
retarded to submit to mandatory AIDS testing.  The Eighth Circuit
held that the risk of transmission to the agency's mentally
retarded clients was negligible and therefore did not justify
requiring employees to submit to an AIDS test. 867 F.2d at 464.
Compare Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 909
F.2d 820 (5th Cir.1990) (mandatory testing permissible where
nurse that lived with AIDS patient had repeated opportunities to
exchange bodily fluids with patients).  See also James E. DeLine,
Note, Compulsory AIDS Testing of Individuals Who Assault Public
Safety Officers: Protecting Police or the Fourth Amendment?, 38
Wayne L.Rev. 461, 479 (1991) (arguing that AIDS testing only
meets constitutional standards when an individual's conduct cre
ates "a genuine risk of AIDS transmission").

Significantly, all of the cases cited by the majority where AIDS
testing of sexual offenders has been approved involved the
passage of bodily fluids.  See People v. Thomas, 139 Misc.2d
1072, 529 N.Y.S.2d 429 (Cy.Ct.1988) (ordering blood test where
sexual intercourse and oral sodomy); People v. Cook, 143 A.D.2d
486, 532 N.Y.S.2d 940 (ordering AIDS test of convicted rapist),
appeal denied, 73 N.Y.2d 786, 536 N.Y.S.2d 746, 533 N.E.2d 676
(1988);  Government of V.I. v. Roberts, 756 F.Supp. 898
(D.V.I.1991) (ordering testing of rapist). A legitimate concern
for the psychological and physical well-being of the victims in
these cases led to an approval of the test.

The probable cause requirement also does not impede the
government's objectives because trial courts are perfectly ca
pable of making a finding as to whether or not bodily fluids
passed. See Johnetta J V. Municipal Ct., 218 Cal.App.3d 1255,
1279, 267 Cal.Rptr. 666, 681(1990) (holding that testing of a
person who assaults a police officer is valid "if there is
probable cause to believe the officer has been exposed to the
assailant's bodily fluids"). (Italics mine.) Trial courts can
make this determination,  allowing  testing  where there is
probable cause to believe the assailant committed an act which
poses a risk of exposing a victim to the AIDS virus.

Given the strong individual interest in the probable cause
requirement, and the absence of important reasons to dispense
with that requirement, I do not find such a requirement
impractical under the circumstances. Consequently, I would limit
mandatory AIDS testing to cases where there is probable cause to
believe transmission of bodily fluids took place.



II

PRIVACY

An analysis of the constitutional privacy issues in this case
compels the same result.

The majority correctly notes that there ate two types of privacy:
the right to non-disclosure of personal information , and the
right to autonomous decisionmaking. Bedford v. Sugarman, 112
Wash.2d 500, 509, 772 P.2d 486 (1989).  I disagree with the
majority's conclusion that rational basis review is appropriate
in evaluating the informational privacy claim. See Thorne v. El
Segundo, 726 F.2d 459, 470 (9th Cir. 1983), cert. denied, 469
U.S. 979,105 S.Ct. 380, 83 L.Ed.2d 315 (1984); United States v.
Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir.1980); O'Hartigan
v. Department of Personnel, 118 Wash.2d 111, 127-28, 821 P.2d 44
(1991) (Utter, J., concurring in part, dissenting in part); see
also Note, The Constitutional Protection of Informational
Privacy, 71 B.U.L.Rev. 133, 135 (1991) (arguing infringements in
informational privacy  implicate a fundamental right and should
be subjected to intermediate scrutiny).  Using rational basis
review is particularly inappropriate because an individual's
privacy interest in his or her HIV status is great, given the
sensitivity of the information. See L. Tribe, American Con
stitutional Law 1516, at 1394-95 (2d ed. 1988) (noting the
devastating consequences of disclosure).

Nonetheless, it is unnecessary to inquire at length as to whether
AIDS testing of offenders where no bodily fluids have passed
violates informational privacy, because it violates the other
aspect of privacy, the right to personal autonomy.  The
nonconsensual taking of blood for AIDS testing implicates the
personal autonomy branch of privacy, which is a fundamental right
triggering strict scrutiny.  State v. Farmer, 116 Wash.2d 414,
429, 805 P.2d 200 (1991).

Although the majority does acknowledge that strict scrutiny is
appropriate for analyzing the autonomy rights of privacy, it
fails to apply that test correctly.  Therefore, it reaches the
erroneous conclusion that AIDS testing is appropriate even where
there is no passage of bodily fluids.

The majority correctly notes that where the State invades an
individual's privacy, it has the burden of showing a compelling
governmental interest that justifies the invasion, that the means
used are narrowly tailored to meet that interest. Majority, at
462.  In addition, the impact on a fundamental right cannot be
unduly burdensome, i.e.,   government must use a less intrusive
or restrictive method to achieve its interest where possible.
See Winston v. Lee, 470 U.S. 753, 766-67, 105 S.Ct. 1611, 1619-
20, 84 L.Ed.2d 662 (1985) (no need to retrieve  bullet  from
defendant's  body where other substantial evidence available to
convict him); Zablocki v. Redhail, 434 U.S. 374, 389, 98 S.Ct.
673, 54 L.Ed.2d 618 (1978) (holding restriction on marriage un
constitutional where a State had other, less onerous means to
realize its interests); Nixon v. Administrator of General Ser
vices, 433 U.S. 425, 456, 97 S.Ct. 2777, 2796, 53 L.Ed.2d 867
(1977) (holding the Presidential Recordings and Materials
Preservation Act represented the least intrusive manner to
promote the government's interest).

The State's interest in notifying the victim is compelling, and
the means are narrowly tailored to achieve that end.  Although it
might be argued that testing the victim would be less intrusive
than the offender, I reject that argument because of the long
latency period before the virus could be detected in the victim.
[footnote 7]

If the victims in this case have not suffered a contact that
poses a risk of transmitting AIDS, the State's sole residual in
terest is in limiting the spread of the virus. [footnote 8]
Though this may be a compelling interest, nonconsensual AIDS
testing is neither narrowly tailored nor the least intrusive
means for the State to realize this interest.

First, the mechanism the State has chosen to further its interest
is not narrowly tailored.  There is no evidence that the
juveniles here are part of a high risk group. Certainly their
conduct prior to the offenses they committed does not so indi
cate. The majority simply accepts the legislature's sweeping
judgment that all of those who are convicted of committing sex
offenses should be tested.  The majority's approach is more
consistent with rational basis review, not the strict scrutiny we
must apply when a fundamental right, such as privacy, is
impacted.

In addition, because AIDS testing infringes on a fundamental
right, the State is obliged to use means which are the least
destructive of individual liberty to achieve its goal.  Other
less intrusive means exist for the State to realize its interest
in checking the spread of the AIDS virus.  For example, the
counseling already provided for in RCW 70.24.340(1) is an
unintrusive way for the State to achieve its interest Counseling
can teach offenders about the AIDS virus and the risks of
contracting or transmitting it.

Therefore, in the absence of a transfer of bodily fluids that
poses a risk of transmitting AIDS, the State has failed to demon
strate that AIDS testing is either narrowly tailored or the least
intrusive means for realizing its interest.



III

CONCLUSION

I would remand this case to the trial court to determine whether
there was probable cause that any of these juvenile offenders
passed bodily fluids to their victims that could give rise to the
AIDS virus. An AIDS test should only be performed if the trial
court determines that such contact did occur.



JOHNSON, J., concurs.







FOOTNOTES

1.   Under the Juvenile Justice Act of 1977, an offense is
defined as "an act designated a violation or a crime if committed
by an adult under the law of this state".  RCW 13.40.020(15).

2.   Ironically. appellants' own brief for Commissioner Morrow
states that "(t]he Defendants in this action have been convicted
of a sex offense under RCW 9A.44."  (Italics ours.)  Clerk's Pa
pers, at 8.

3.   The broad public health purposes of the testing statute also
comport with those of the Juvenile Justice Act of 1977, RCW
13.40. See generally, RCW 13.40.010(2) (act seeks to protect pub
lic and '[p]rovide [for] necessary treatment, supervision, and
custody for juvenile offenders").

4.   At issue was the first degree escape statute which includes
the element that a person must be "detained pursuant to a
conviction of a felony -  RCW 9A.76.110.

5.   Application of the HIV testing statute to juveniles does not
result in the type of detriments which were present in Frederick.
First. the juvenile sexual offenders will not face additional
offenses on their records, nor will they be given further
detention or a monetary fine.  Second, their liberty interests
are only slightly impacted, given the limited intrusion of a
blood test. Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602, 625, 109 S.Ct. 1402,1417,103 L.Ed.2d 639 (1989). Because it
does not impose a penalty, applying HIV testing to juvenile
sexual offenders does not change the nature of the "punishment to
be meted out to the juvenile offender after the commission of the
offense." State v. Bird, 95 Wash.2d 83, 91, 622 P.2d 1262 (1980)
(Dolliver, J., dissenting);  see also State v Schaaf, 109 Wash.2d
1, 7-8, 743 P.2d 240 (1987).

6.   To support this proposition, appellants primarily cite
federal and state cases interpreting the federal constitution.
Because the parties have not briefed nor asked for an independent
construction of the state constitutional provision based upon the
factors established in State v. Gunwall, 106 Wash.2d 54. 720 P.2d
803, 76 A.L.R.4th 517 (1986), we will interpret Const. art. I,  7
using the Federal Fourth Amendment analysis.  Clark v.
Pacificorp, 118 Wash.2d 167. 192 n. 13, 822 P.2d 162 (1991).

7.   In fact, one court has observed that Skinner "relegate[s]
blood testing to a realm of lesser protection under the Fourth
Amendment." Johnetta J., 218 Cal.App.3d at 1277, 267 Cal.Rptr.
666.

8.   The fact that the current case involves juveniles is of no
special relevance. because the rights of juveniles are prima
facie coextensive with those of adults.  State v. Koome, 84
Wash.2d 901, 904, 530 P.2d 260 (1975).

9.   Unlike the situation where the government attempts to test
an innocent party, the individuals to be tested in the current
case labor under a decreased expectation of privacy.  See supra
460.  The right of privacy does not exist in a vacuum distinct
from Fourth Amendment expectations of privacy.

10. See, e.g., Leckelt v. Board of Comm's of Hosp. Dst. 1, 909
F.2d 820 (5th Cir.1990); Dunn v. White, 880 F.2d 1188 (10th
Cir.1989), cert. denied 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d
954 (1990); Anonymous Fireman v. Willoughby, 779 F.Supp. 402
(N.D.Ohio 1991); Government of V.I. v. Roberts, 756 F.Supp. 898
(D.V.I.1991); Harris v. Thigpen, 727 F.Supp. 1564 (M.D.Ala.
1900), aff'd in part, 941 F.2d 1495 (11th Cir. 1901); Love v.
Superior Court, 226 Cal.App.3d 736, 276 Cal.Rptr. 660 (1990);
Johnetta J. v. Municipal Court, 218 Ca1.App.3d 1255, 267 Cal.
Rptr. 666 (1990); People v. C.S., 222 Ill.App.3d 348, 583 N.E.2d
726 (1991); People v. Cook, 143 A.D.2d 486, 532 N.Y.S.2d 940,
appeal denied, 73 N.Y.2d 786, 536 N.Y.S.2d 746, 533 N.E.2d 676
(1988); People v. Thomas, 139 Misc.2d 1072, 529 N.Y.S.2d 429
(Cy.Ct.1988).  But see Walker v. Sumner, 917 F.2d 382. 388 (9th
Cir.1990) (reversing grant of summary judgment due to existence
of disputed material fact); Glover v. East-em Nebraska Comm'ty
Office of Retardation, 867 F.2d 461 (8th Cir.), cert. denied, 493
U.S. 932. 110 S.Ct. 321. 107 L.Ed.2d 311(1989) (Under facts of
case, AIDS testing of social workers was unreasonable search.).



DISSENT FOOTNOTES

1.   This focus on the warrant and probable cause requirements
was echoed in the companion case to Skinner.  In National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct.
1384, 103 L.Ed.2d 685 (1989), the Court described the test as
follows: "[W]here a Fourth Amendment intrusion serves special
governmental needs, beyond the normal need for law enforcement,
it is necessary to balance the individual's privacy expectations
against the Government's interests to determine whether it is
impractical to require a warrant or some level of individualized
suspicion".  489 U.S. at 665-66, 109 S.Ct. at 1390.

2.   "[I]t is 'society's judgment that blood tests do not
constitute an unduly extensive imposition on an individual's
personal privacy and bodily integrity.'"  Majority opinion, at
460 (quoting Winston v. Lee, 470 U.S. 753. 762, 105 S.Ct. 1611,
1617, 84 L.Ed.2d 662 (1985)).

3  Furthermore, the limitation of the statute to sexual offenders
suggests that prison management was not in fact the concern
motivating the legislature in enacting RCW 70.24.340(l)(a).

4.   See, e.g., Skinner, 489 U.S. at 625, 109 S.Ct. at 1417
(blood, breath, and urine tests for drugs and alcohol not
intrusive).

5.   Even those incarcerated in prison retain a significant
privacy interest in their medical information. See Nolley v.
County of Erie, 776·F.Supp. 715, 731 (W.D.N.Y.l991) (holding pris
on inmates have a constitutional right to privacy that includes
protection from unwarranted disclosure of their HIV status). Doe
v. Coughlin, 697 F.Supp. 1234 (N.D.N.Y.1988) (prison inmate has a
right to privacy in his AIDS diagnosis);  Woods v.  White,  689
F.Supp. 874 (W.D.Wis.l988), aff'd, 899 F.2d 17 (7th Cir.1990)
(individual who had been convicted and imprisoned retains
constitutional right to privacy).

6.   As I have discussed above. the Court upholds the statute on
the broader grounds of limiting the spread of AIDS, as well as
the "reasonable assumption" that sexual offenders were "high
risk" to spread AIDS. As I have already detailed my
dissatisfaction with those grounds, I will not repeat my comments
here.

7.   A newly infected victim will not test positive until at
least six to twelve weeks after the date of exposure, and
possibly longer.  Marc Blumberg, Transmission of the AIDS Virus
Through Criminal Activity, 25 Crim.Law Bull. 454, 460 (1989).

8.   The other reasons listed by the majority, the management of
correctional facilities and aiding the offender, are not
legitimate, and do not merit consideration.

First, because it is unclear from the record that the juveniles
are or will be in a correctional facility, this is not a
legitimate reason for allowing the test.  In addition, the State
has not argued that a correctional facility in the State will
actually use this information for any valid purpose.

Second, the state's interest in the offender's well being is
severely limited, given the degree of intrusion into the
individual's right of privacy and right to be free from bodily
invasion. See in re Colyer, 99 Wash.2d 114, 120, 660 P.2d 738
(1983) (recognizing a terminally ill patient's constitutional
right of privacy that encompasses the right to refuse treatment).
In addition, the state can utilize a less intrusive means,
through counseling and education, to achieve its interest in
assisting the offender.