Rape victim outraged suspect isn't required to have an HIV test after change to law

Posted at 5:31 AM, Aug 01, 2022
and last updated 2022-08-01 18:30:46-04

HAMPTON ROADS, Va. - Prosecutors in Virginia used to be able to request rape suspects get tested for HIV but not anymore.

A change to the law went into effect in 2021 and it has some people outraged including a woman who was recently sexually assaulted.

The News 3 investigations team put outlines on how this case put the suspect’s rights and the victim’s rights in the spotlight.

Attorney Kevin Keller describes what happened to his client as everyone’s worst nightmare. A victim who we are not identifying said she was taking a shower mid-morning on a Sunday in her Norfolk home when a man broke in and violently raped her.

The victim told News 3 the attack was horrific but said what has been worse is the aftermath. In 2021, there was a change to the law which she said has made her life much more difficult than it has to be.

The Office of the Attorney General said the Virginia Code section that would have allowed for a Commonwealth's Attorney to request HIV testing of the assailant was repealed last year.

Previously, if someone was arrested for a sexual assault, the Commonwealth Attorney could request the suspect have an HIV and Hepatitis test.

The old code stated that the results of such tests shall not be admissible as evidence in any criminal proceeding.

However, in 2021 certain lawmakers moved to have the law repealed.

News 3 reached out to the patrons of the bill who repealed the law including Mamie E. Locke (D) District 2, Jennifer L. McClellan (D) District 9, Scott A. Surovell (D) District 36 and Delegate Betsy B. Carr (D) 69th District.

Senator Jennifer McClellan was the only one to respond to our requests for information about why this decision was made.

She issued us the following statement:

"Virginia law empowers survivors of sexual assault to receive free, comprehensive STD testing as part of the Physical Evidence Recovery Kit. As part of this process, survivors can also receive post-exposure medicine to reduce the risk of pregnancy, HIV, and other potential STDs within 72 hours. The 2021 bill modernized outdated language that specifically focused on testing suspects for HIV and Hepatitis after their arrest, as opposed to a more comprehensive approach focused on the survivor's health in the immediate aftermath of the assault."

Keller was appalled by this response.

He said, “It's a joke. It's a word salad that was obviously drafted by somebody who is using advertising type of terms, focus group type terms, such as modernized and empowered. Who's empowered? What's modernized in the language? The language removed the right for the victim on a showing of probable cause to have the perpetrator submit to a blood test.”

The rape victim, in this case, said she has had to take preventative HIV medicine for weeks along with several other medications to prevent STDs and other problems. She already had previous medical issues which have been exacerbated by the HIV prevention medication. She said the HIV prevention medicine is intense and has made her extremely sick. She also has to continue to get HIV tests and other blood work done to continue to see if she has been exposed to HIV or anything else during the attack.

She feels like she is being victimized over and over. She said she wanted the suspect who is currently in jail to get an HIV test, but was told due to the law being repealed the Commonwealth’s Attorney was unable to request that test.

If the suspect took an HIV test, the victim said she could avoid taking an array of drugs that are currently making her ill.

“It's really kind of like a repeated trauma for her where she's trying to get past the nightmare of it, and instead it's just it's ongoing,” said Keller, “There's just very little thought for the victim here. All the rights exist on behalf of the perpetrator.”

“You are continuing to test and continue to question whether or not you have this and it affects your relationship with your husband or your spouse or your other significant other so it’s very difficult,” said the victim.

Keller said having to expose the victim to a whole cocktail of medications is adversely affecting her health both physically and mentally.

“It's just an awful situation and I think the change in the law was very insensitive to the victims of crime,” said Keller.

He believes testing rape suspects could reduce the anxiety and worry among victims and save taxpayer money.

“The medications for HIV and hepatitis cost thousands of dollars that are coming out of the taxpayer’s pocket, the victim’s fund, why is it coming out the Victim’s Funds? Under the old law, if he had been tested and didn't have it, you wouldn't even have to spend this money,” said Keller.

The News 3 Investigative Team spoke to leaders at the YWCA about this issue.

They’re the ones who help sexual assault victims in our community.

Kristen Pine is the Chief Operating Officer of the YWCA of South Hampton Roads.

“Virginia, unlike some other states, does not have that mandate,” said Pine, “In Virginia, well everywhere you’re innocent until proven guilty and I think that’s where the line has been drawn here. You can’t really mandate a medical test on somebody who has not been convicted of the crime.”

She said rape is the most underreported crime in our country.

“It’s such a traumatizing thing and then to move forward with the prosecution of that case can be even more traumatizing,” said Pine.

She said they support anything that helps victims even working to get the law changed which is what the victim in this recent case would like to do.

“I think it should be mandatory, if you’re charged with a rape, you should be tested for HIV and other STDs because the victim has to be tested for this and you continue to be victimized,” said the victim.

Locke, Surovell, and Carr did not respond to our requests for information about why this decision was made or why they supported it.