State v. Bemer ( 2021 )

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STATE OF CONNECTICUT v.
BRUCE JOHN BEMER
(SC 20195)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Vertefeuille, Js.*
Syllabus
Pursuant to statute (§ 54-102a (a)), a court presiding over a pending case
involving a violation of certain sex offenses, including patronizing a
prostitute who was the victim of human trafficking, may order that the
accused be examined for any sexually transmitted disease (STD).
Pursuant further to statute (§ 54-102a (b)), a court presiding over a pending
case involving a violation of certain sex offenses during which a sexual
act occurred, including patronizing a prostitute who was the victim of
human trafficking, may order that the accused be tested for the presence
of the human immunodeficiency virus (HIV), ‘‘[n]otwithstanding the
provisions of’’ the statute (§ 19a-582) requiring a person’s ‘‘general con-
sent’’ for that person’s HIV-related testing.
The defendant, who had been charged with the crimes of patronizing a
prostitute who was the victim of human trafficking and conspiracy to
commit trafficking in persons, appealed from the trial court’s order, in
response to motions filed by the state and certain of the defendant’s
alleged victims, requiring that he submit to an examination for STDs
pursuant to § 54-102a (a) and HIV testing pursuant to § 54-102a (b). The
charges stemmed from the defendant’s involvement with a person who
had arranged for young males to engage in sexual activities with the
defendant in exchange for money. On appeal, the defendant claimed,
inter alia, that the trial court had abused its discretion in ordering HIV
testing on the ground that the trial court was required to find, before
issuing such an order, that there was a clear and imminent danger to
the public health or the health of a person and that there was a compelling
need for the HIV test result that could not be accommodated by other
means, and the state presented no evidence in furtherance of satisfying
that standard. The defendant also contended that, to the extent that an
examination for STDs and HIV testing could be ordered under § 54-102a
(a) and (b), respectively, without a finding of a compelling need, those
statutory provisions violated the defendant’s constitutional rights. Dur-
ing the pendency of this appeal, the defendant was convicted of the
charged crimes. Held:
1. The trial court’s order was an appealable final judgment, and the defen-
dant’s conviction of the charged crimes had no bearing, jurisdictional
or otherwise, on this appeal: the court’s order terminated a separate
and distinct proceeding, as it involved a discrete matter entirely distinct
from and independent of the adjudication of the defendant’s guilt, and,
accordingly, the proceedings concerning the propriety of that order
were wholly severable from the proceedings pertaining to the resolution
of the defendant’s criminal case, which could and did advance separate
and apart from this appeal; moreover, although § 54-102a authorizes a
trial court to issue an order pursuant to that statute while a case is
‘‘pending’’ in that court, whereas a related statute (§ 54-102b) delineates
the circumstances under which a defendant’s HIV testing shall be
ordered upon motion following conviction, there was nothing in § 54-
102a or § 54-102b to suggest that § 54-102b was intended to place a
temporal limitation on the execution of an order properly issued pursu-
ant to § 54-102a prior to a conviction, and § 54-102b made no provision
for the HIV testing of persons convicted of offenses of which the defen-
dant ultimately was convicted.
2. The trial court did not abuse the discretion conferred on it by § 54-102a
(b) in ordering that the defendant submit to HIV testing: there was no
merit to the defendant’s claim that the trial court was obligated to adhere
to the requirement set forth in § 19a-582 (d) (8) that it find, before
ordering HIV testing, a clear and imminent danger to the public health
or the health of a person and that the person seeking the testing of the
defendant has demonstrated a compelling need for the test result that
cannot be accommodated by other means, as a review of the language
of § 54-102a (b), its legislative history, and related statutes, as well as
the language of § 19a-582, indicated that the legislature did not intend
for the requirement of § 19a-582 (d) (8) to apply to an order for HIV
testing under § 54-102a (b); accordingly, § 54-102a (b) broadly authorizes
a trial court to order HIV testing when, as in the present case, the
conditions of that statute—that the defendant has been charged with
committing an offense enumerated in that statute, the offense involved
a sexual act, and the charge is pending before the court—have been met.
3. To comport with the provision of the Connecticut constitution (art. I,
§ 7) prohibiting unreasonable searches and seizures, a court is required
to make a finding, prior to ordering an examination for STDs pursuant
to § 54-102a (a) or HIV testing pursuant to § 54-102a (b), that such an
examination or testing would provide useful, practical information to
a victim that could not reasonably be obtained in another manner, but
this court rejected the defendant’s contention that a trial court must
find, before issuing an order for such an examination or testing, that
there is probable cause to believe that the defendant has an STD or
HIV: this court reviewed the factors set forth in State v. Geisler (222
Conn. 672), which included consideration of federal case law concerning
suspicionless searches and the special needs doctrine, sister state case
law addressing the constitutionality of statutes that authorize noncon-
sensual HIV testing of persons charged with certain crimes, and contem-
porary understandings of applicable economic and sociological norms,
and relevant public policies as reflected in the legislative history of
§ 54-102a, and concluded that the issuance of an order for HIV testing
pursuant to § 54-102a (b) based solely on a finding that the conditions
of that statute have been met violates a defendant’s right to be free
from unreasonable searches and seizures under article first, § 7, as, in
many cases, such testing would provide no real benefit to the victim,
and, under those circumstances, the state’s interest in requiring testing
is not sufficient to override a defendant’s recognized privacy interest;
accordingly, this court placed an interpretive gloss on § 54-102a to render
it compatible with the requirements of article first, § 7, by requiring a
court to find that an examination for STDs or HIV testing would provide
useful, practical information to a victim that could not reasonably be
obtained otherwise; moreover, because the trial court did not apply the
foregoing standard and the state and the victims were not on notice
that they were required to satisfy that standard in filing their motions
pursuant to § 54-102a (a) and (b), the trial court’s order was reversed,
and the case was remanded for a new hearing on those motions.
(Two justices concurring separately in one opinion)
Argued October 21, 2019—officially released July 14, 2021**
Procedural History
Substitute information charging the defendant with
patronizing a prostitute and conspiracy to commit
human trafficking, brought to the Superior Court in the
judicial district of Danbury, where the court, Shaban,
J., granted, with certain restrictions, the state’s and
certain of the alleged victims’ motions for an order
directing the defendant to undergo an examination for
sexually transmitted diseases and testing for the human
immunodeficiency virus, from which the defendant
appealed. Reversed; further proceedings.
Wesley W. Horton, with whom were Brendon P.
Levesque and, on the brief, Ryan Barry and Anthony
Spinella, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Sharmese L. Hodge, assistant
state’s attorney, for the appellee (state).
James J. Healy, Gerald S. Sack, Joel T. Faxon and
Kevin C. Ferry filed a brief for the alleged victims as
amici curiae.
Opinion
PALMER, J. After the defendant, Bruce John Bemer,
was charged with patronizing a prostitute who was
the victim of human trafficking in violation of General
Statutes (Supp. 2014) § 53a-83 (c) (2) (A)1 and conspir-
acy to commit trafficking in persons in violation of
General Statutes (Rev. to 2011) §§ 53a-192a and 53a-
48,2 the state filed a motion seeking a court order requir-
ing the defendant to submit both to an examination
for sexually transmitted diseases pursuant to General
Statutes § 54-102a (a) and to testing for human immuno-
deficiency virus (HIV) pursuant to § 54-102a (b).3 There-
after, certain victims of the defendant’s allegedly crimi-
nal misconduct filed similar motions. The trial court
granted the various motions and ordered the defendant
to submit to such an examination and testing. The
defendant then filed this appeal,4 claiming that the trial
court had abused its discretion in ordering testing under
§ 54-102a (b) because, the defendant maintains, that
statutory subsection incorporates the standard set forth
in General Statutes § 19a-582 (d) (8); see footnote 12
of this opinion; which requires the court to find that
there is ‘‘a clear and imminent danger to the public
health or the health of a person and that the person
has demonstrated a compelling need for the HIV-related
test result that cannot be accommodated by other
means’’ before it may order HIV testing, and the state
had presented no evidence in satisfaction of that stan-
dard.5 The defendant further contends that, to the extent
that subsections (a) and (b) of § 54-102a purport to
authorize the trial court to issue orders thereunder with-
out first making a finding of such compelling justifica-
tion, they violate his rights under the fourth amendment
to the United States constitution6 and article first, § 7,
of the Connecticut constitution.7 After this appeal was
filed, we directed the parties to brief, inter alia, the issue
of whether the order for an examination and testing
was an appealable final judgment.8
We conclude, preliminarily, that the trial court’s order
is an appealable final judgment. We further conclude
that, under article first, § 7, of the Connecticut constitu-
tion, the trial court must make a finding that either an
examination pursuant to § 54-102a (a) or testing pursu-
ant to § 54-102a (b), or both, would provide useful,
practical information to a victim that cannot reasonably
be obtained in another manner before it may order such
examination or testing, or both. Accordingly, we reverse
the trial court’s order and remand the case for a new
hearing so that the trial court can apply the proper
standard.
The record reveals the following undisputed facts
and procedural history. On March 28, 2017, the defen-
dant was arrested pursuant to a warrant and charged
with patronizing a prostitute who was the victim of
human trafficking and conspiracy to commit trafficking
in persons. The arrest warrant application indicated
that, on August 5, 2016, Danbury police officers inter-
viewed the defendant in connection with their investiga-
tion of a prostitution ring involving the sexual traffick-
ing of mentally disabled young men. The defendant told
the police that, over the course of the previous twenty
to twenty-five years, an individual by the name of Robert
King had been arranging for young males to engage in
sexual activities with him in exchange for money. The
defendant stated that, to the best of his recollection,
King had made arrangements for him to engage in sex-
ual activities with eight to ten young men, most of whom
the defendant had sex with multiple times. The arrest
warrant application also indicated that one of the vic-
tims told the police that the defendant had performed
fellatio on him.9 The defendant told the police that the
last occasion on which he had had sexual relations with
a young man brought to him by King was approximately
four months before the date of the interview.
On October 18, 2017, the state filed a motion seeking
an examination of the defendant for sexually transmit-
ted diseases under subsection (a) of § 54-102a and HIV
testing of the defendant under subsection (b) of § 54-
102a. The defendant opposed the motion on the ground
that granting it without a prior showing of probable
cause to believe that such an examination and testing
would promote the health interests of the victims would
serve no legitimate medical purpose and would there-
fore violate the defendant’s rights under the fourth
amendment and article first, § 7. Thereafter, victims
represented by Attorney Joel T. Faxon, victims repre-
sented by Attorney Kevin C. Ferry, and victims repre-
sented by Attorney Gerald S. Sack filed three separate
motions seeking the same relief. The trial court con-
ducted a hearing on the motions, at which the assistant
state’s attorney and defense counsel appeared, and
Faxon also appeared on behalf of certain victims. In
addition, Attorneys Jonathan A. Cantor and Monique
Foley appeared on behalf of the other victims who had
not filed motions under § 54-102a. Although the parties
adduced no evidence at the hearing, Faxon referred to
the contents of the arrest warrant during argument.
In addition to a constitutional claim, defense counsel
argued at the hearing that § 54-102a (b) and § 19a-582
(d) (8) must be read together to require the state and
the victims to establish that the defendant posed a clear
and imminent danger to the public health before the
court could order HIV testing. Thereafter, the trial court
summarily granted the motions.
This appeal followed. The defendant renews his
claims that, under the statutory scheme, HIV testing
authorized by § 54-102a (b) is conditioned on the show-
ing mandated by § 19a-582 (d) (8), and, in any event,
article first, § 7, of the state constitution requires proof
of a compelling need for examination under § 54-102a
(a) and testing under § 54-102a (b). We address each
of these claims in turn.
I
Before doing so, however, we address two threshold
issues that implicate this court’s jurisdiction to enter-
tain the present appeal: first, whether the trial court’s
order constituted an appealable final judgment and,
second, what effect, if any, does the defendant’s convic-
tion have on this appeal.10 Both the state and the defen-
dant contend that the trial court’s order was immedi-
ately appealable and that the defendant’s conviction
has no bearing on this appeal. We agree with the parties.
‘‘[B]ecause our jurisdiction over appeals . . . is pre-
scribed by statute, we must always determine the
threshold question of whether the appeal is taken from
a final judgment before considering the merits of the
claim . . . . It is well established that [t]he principal
statutory prerequisite to invoking our jurisdiction is
that the ruling from which an appeal is sought must
constitute a final judgment.’’ (Internal quotation marks
omitted.) State v. Anderson, 318 Conn. 680, 698 n.6, 122
A.3d 254 (2015). ‘‘The appealable final judgment in a
criminal case is ordinarily the imposition of sentence.
. . . In both criminal and civil cases, however, we have
determined certain interlocutory orders and rulings of
the Superior Court to be final judgments for purposes
of appeal. An otherwise interlocutory order is appeal-
able in two circumstances: (1) [when] the order or
action terminates a separate and distinct proceeding,
or (2) [when] the order or action so concludes the rights
of the parties that further proceedings cannot affect
them.’’ (Citations omitted; internal quotation marks
omitted.) State v. Curcio, 191 Conn. 27, 31, 463 A.2d
566 (1983).
‘‘The separate and distinct requirement of Curcio
demands that the proceeding [that] spawned the appeal
be independent of the main action. . . . This means
that the separate and distinct proceeding, though
related to the central cause, must be severable there-
from. The question to be asked is whether the main
action could proceed independent of the ancillary pro-
ceeding.’’ (Citations omitted; internal quotation marks
omitted.) State v. Parker, 194 Conn. 650, 654, 485 A.2d
139 (1984).
It is clear, as both parties recognize, that the order
at issue in the present case terminated a separate and
distinct proceeding under Curcio’s first prong because
that order involves a discrete matter entirely distinct
from and independent of the adjudication of the defen-
dant’s guilt. As a consequence, the proceedings con-
cerning the propriety of that order were wholly sever-
able from the proceedings pertaining to the resolution
of the defendant’s criminal case, which could and did
advance separate and apart from this appeal. Cf. State
v. Grotton, 180 Conn. 290, 294–95, 429 A.2d 871 (1980)
(questions involving fourth amendment violations must
await review until after criminal trial and conviction
when there is ‘‘a functional link between the conse-
quences of an illegal search and seizure and a later
conviction in order to make any putative constitutional
error harmful and hence to require reversal’’); id., 295
(‘‘[o]rders granting or denying suppression [of illegally
seized evidence] in the wake of . . . [suppression] pro-
ceedings are truly interlocutory, for the criminal trial is
then fairly in train’’ (internal quotation marks omitted)).
Indeed, the defendant’s criminal trial concluded during
the pendency of this appeal; see footnote 8 of this opin-
ion; whereas the controversy concerning the order
issued pursuant to § 54-102a remains unresolved. We
conclude, therefore, that that order was an appealable
final judgment, and, consequently, it is properly the
subject of this appeal.
With respect to the issue of whether the defendant’s
conviction has any effect on this court’s appellate juris-
diction, that issue arises from the fact that § 54-102a
authorizes a trial court to issue an order thereunder
while a case is ‘‘pending’’ in that court, whereas General
Statutes § 54-102b11 delineates the circumstances pursu-
ant to which HIV testing of a defendant shall be ordered
upon motion following a conviction of certain enumer-
ated offenses. There is nothing in § 54-102a or § 54-
102b, or elsewhere in the statutory scheme, to suggest
that § 54-102b was intended to place a temporal limita-
tion on the execution of an order properly issued prior
to conviction in accordance with § 54-102a. Moreover,
§ 54-102b applies to HIV testing only, and makes no
provision for HIV testing of persons convicted of the
offenses of which the defendant was convicted. Conse-
quently, we agree with the parties that the fact that the
defendant was convicted during the pendency of the
present appeal has no bearing, jurisdictional or other-
wise, on this appeal.
II
We now turn to the defendant’s claim that the trial
court abused its discretion in ordering HIV testing pur-
suant to § 54-102a (b) because the court did not adhere
to the requirement of § 19a-582 (d) (8)12 that there first
must be a finding of ‘‘a clear and imminent danger to
the public health or the health of a person and that the
person has demonstrated a compelling need for the
HIV-related test result that cannot be accommodated
by other means.’’ As the defendant notes, the state does
not claim that the trial court made any such a finding
or that the evidence presented at the hearing would
have supported that finding. The state contends that
§ 54a-102a (b) does not incorporate § 19a-582 (d) (8)
but, instead, broadly authorizes the trial court to order
testing when, as in the present case, the defendant has
been charged with committing an offense enumerated
in § 54a-102a (b) that involved a sexual act. We agree
with the state.
Whether § 54-102a (b) incorporates § 19a-582 (d) (8)
is an issue of statutory interpretation. ‘‘The process of
statutory interpretation involves the determination of
the meaning of the statutory language as applied to the
facts of the case, including the question of whether the
language does so apply. . . . When construing a stat-
ute, [o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ (Internal quotation marks omitted.) Ugrin
v. Cheshire, 307 Conn. 364, 379–80, 54 A.3d 532 (2012).
Furthermore, ‘‘[t]he legislature is always presumed to
have created a harmonious and consistent body of law
. . . [so that] [i]n determining the meaning of a statute
. . . we look not only at the provision at issue, but also
to the broader statutory scheme to ensure the coher-
ency of our construction.’’ (Internal quotation marks
omitted.) Sokaitis v. Bakaysa, 293 Conn. 17, 23, 975
A.2d 51 (2009). Because issues of statutory construction
raise questions of law, they are subject to plenary
review on appeal. See, e.g., Ugrin v. Cheshire, supra,
379.
We begin with § 19a-582, subsection (a) of which sets
forth a general rule broadly requiring consent for HIV
related testing.13 Subsection (d) carves out a number
of exceptions to that consent requirement, one of
which, set forth in subdivision (8), is a court order
issued in compliance with certain very stringent condi-
tions.
Section 54-102a (b) in turn provides in relevant part
that, ‘‘[n]otwithstanding the provisions of section 19a-
582,’’ the trial court may, in specified criminal cases,
order HIV testing of the defendant. Such testing is also
subject to the following proviso: ‘‘The provisions of
sections 19a-581 to 19a-585, inclusive, and section 19a-
590, except any provision requiring the subject of any
HIV-related test to provide informed consent prior to
the performance of such test and any provision that
would prohibit or limit the disclosure of the results of
such test to the victim under this subsection, shall
apply to a test ordered under this subsection and the
disclosure of the results of such test.’’ (Emphasis
added.) General Statutes § 54-102a (b).
The interpretive issue presented stems from the par-
ties’ dispute over the proper reading of the ‘‘[n]otwith-
standing the provisions of section 19a-582’’ language
contained in the first sentence of § 54-102a (b) in light
of the final sentence of that subsection, providing that
a range of statutes, including § 19a-582, applies to any
HIV testing order issued under § 54-102a (b), ‘‘except
any provision requiring the subject of an HIV-related
test to provide informed consent prior to the perfor-
mance of such test and any provision that would pro-
hibit or limit the disclosure of the results of such test
to the victim under this subsection . . . .’’ General Stat-
utes § 54-102a (b). The defendant contends that the only
way to reconcile these two provisions is to construe the
‘‘notwithstanding’’ clause to apply only to the consent
requirement of subsection (a) of § 19a-582 and not to
the various exceptions to that requirement set forth in
subsection (d) of § 19a-582. Thus, in the defendant’s
view, subsection (d) of that statute, which allows testing
without consent only under the conditions specifically
enumerated therein, including the court order provision
specified in subdivision (8), is not excepted from the
purview of § 54-102a (b), and, therefore, the rigorous
requirements of subdivision (8) of § 19a-582 (d) must
be met prior to the issuance of an order for HIV testing
under § 54-102a (b). The state contends, to the contrary,
that, because both the first and third sentences of § 54-
102a (b) explicitly or implicitly provide that the consent
requirement of § 19a-582 (a) does not apply to orders
issued pursuant to § 54-102a (b), the exceptions to the
consent requirement of § 19a-582 (d) also do not apply.
In effect, then, the state’s interpretation treats § 54-102
(b) like the other exceptions to § 19a-582 (a) that are
enumerated in § 19a-582 (d).
Although § 54-102a (b) is not a model of clarity, the
interpretation advanced by the state is reasonable,
whereas the defendant’s is not. First, it is difficult to
understand why, if, as the defendant concedes, the con-
sent requirement set forth in § 19a-582 (a) does not
apply to persons who are subject to § 54-102a (b), the
exceptions to that consent requirement set forth in
§ 19a-582 (d) are nevertheless applicable. We see no
logical reason to separate the exceptions to the general
rule from that rule itself, at least not without a clear
indication from the legislature, in the statutory language
or otherwise, that it intended to disconnect the one
from the other. In contrast, treating § 54-102a (b) as an
exception to the general consent requirement of § 19a-
582 (a) affords it a meaning and significance consistent
with a commonsense reading of the statutory language,
considered in the broader context of the overall purpose
of the statutory scheme.
Second, the defendant’s proposed construction of
§ 54-102a (b) renders that provision largely superfluous.
Because § 19a-582 (d) preexisted the enactment of § 54-
102a (b), it already provided the court with authority
to order an HIV test upon proof of an imminent danger
to health and a compelling need that could not other-
wise be met. In fact, the history of the legislation that
is now codified as amended at § 54-102a (b); see Public
Acts, Spec. Sess., May, 1994, No. 94-6, § 27 (Spec. Sess.
P.A. 94-6);14 reveals that a number of persons who sub-
mitted written testimony to the Judiciary Committee in
opposition to its enactment pointed out that sexual
assault victims already were allowed to seek such a
court order. See Conn. Joint Standing Committee Hear-
ings, Judiciary, Pt. 5, 1994 Sess., p. 1577, written testi-
mony of Connecticut Sexual Assault Crisis Services,
Inc. (‘‘Connecticut law already allows a victim to seek
a court order for the testing of an assailant and, if
applicable, disclosure of the assailant’s test results’’);
id., p. 1582, written testimony of Suzanne Mazzarelli,
Counselor/Advocate, Susan B. Anthony Project Sexual
Assault Crisis Services (‘‘Connecticut law already
allows a victim to seek [a] court order for the testing
of an assailant, and, if applicable, disclosure of the
assailant’s test results’’); id., p. 1583, remarks of Sarah
Wilson, Lobbyist, Connecticut Chapter of the National
Organization for Women (‘‘[c]urrent law already allows
a victim to seek a court order for the testing of an
assailant and, if applicable, the disclosure of these
results’’). We must presume that the legislature intended
to provide something more than what the law already
provided. See, e.g., American-Republican, Inc. v. Water-
bury, 183 Conn. 523, 529–30, 441 A.2d 23 (1981) (‘‘[w]e
cannot assume that the legislature would perform the
useless act of correcting a deficiency in the statute
[that] did not exist’’).
Thus, under the defendant’s reading of § 54-102a (b),
a victim in a criminal case would receive no substantive
benefit from the provision. Rather, its utility would be
limited to affording such a victim the option of seeking
an order under § 19a-582 (d) (8) in the criminal case
itself—an alternative that otherwise would not be avail-
able to a victim, who, as a nonparty, would lack standing
to move for a testing order in the criminal case15—
instead of doing so in another pending action or in a
new proceeding. This interpretation of § 54-102a (b) is
manifestly implausible for a number of reasons. First,
if providing an alternative forum for a victim requesting
an order pursuant to § 19a-582 (d) (8) were all the legis-
lature intended to accomplish by its enactment of § 54-
102a (b), it easily could have achieved that result merely
by adding a few words to § 19a-582 (d) (8) rather than
by enacting an entirely new—and somewhat obtusely
worded—statutory provision. And because the relevant
language of § 54-102b, pertaining to HIV tests upon the
motion of a victim following conviction, is materially
identical to that of § 54-102a, we also would have to
presume that the legislature opted to enact § 54-102b
rather than tweaking the text of § 19a-582 (d) (8) slightly
to reflect its purportedly modest intentions. We do not
believe that the legislature would have enacted multiple
new statutory provisions—which, as we discuss more
fully in part III of this opinion, were the subject of
extensive legislative discussion and debate—if its intent
were to accomplish only the extremely limited objective
attributed to it by the defendant.
Another even more compelling reason to reject the
defendant’s construction of § 54-102a (b) stems from
the fundamental purpose of the provision. As we also
explain in greater detail in part III of this opinion, the
impetus behind both §§ 54-102a (b) and 54-102b was to
avert the state’s loss of certain federal grant money,
the receipt of which was conditioned on the enactment
of §§ 54-102a (b) and 54-102b. Construing those provi-
sions as advocated by the defendant—that is, requiring
that the category of victims identified in those provi-
sions also satisfy the exceedingly stringent conditions
of § 19a-582 (d) (8)—would fly in the face of the decid-
edly pro victim policy the provisions undisputedly were
intended to promote. Thus, no one in the legislature
reasonably could have believed that merely enabling a
victim to seek an order under § 19a-582 (d) (8) in a
criminal case would have afforded the state even the
remotest chance of forestalling the loss of federal fund-
ing. There is absolutely no reason, moreover, why those
provisions would have prompted any legislative discus-
sion at all, let alone the robust debate they did generate,
if they were intended only to ensure that a victim could
seek an order under § 19a-582 (d) (8) in a criminal case.
In fact, aspects of the relevant legislative history pro-
vide clear indication that § 54-102a (b) was not intended
to incorporate the clear and imminent danger/compel-
ling need standard of § 19a-582 (d) (8). Representative
Robert Farr explained that the person who would be
subject to the testing order ‘‘would have every right to
refuse to take the test, every right protected right now
. . . that a defendant would have on giving a blood
test for other purposes . . . .’’ (Emphasis added.) 37
H.R. Proc., Pt. 21, 1994 Sess., p. 7640. When the state
seeks a search warrant for a blood sample for the pur-
pose of providing evidence of a defendant’s guilt, it
need not establish an imminent danger to the public
health or a compelling need for the test that cannot be
accommodated by other means. Rather, a defendant
can be compelled to give a blood sample merely upon
a showing of probable cause. See, e.g., State v. Grant,
286 Conn. 499, 514, 944 A.2d 947, cert. denied, 555 U.S.
916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).
Representative Robert M. Ward stated during the
debate that, by enacting the proposed legislation, ‘‘[a]ll
we’re doing is extending the current law as to venereal
diseases . . . .’’ 37 H.R. Proc., supra, p. 7642; see also
id., remarks of Representative Ward (‘‘[t]here’s no real
harm done to the defendant [by ordering an HIV test],
and if they can be tested for venereal disease, why not
also include in that test a test for . . . [HIV]?’’). As
the defendant in the present case conceded at oral
argument before this court; see footnote 5 of this opin-
ion; the preconditions for ordering an HIV related test
under § 19a-582 (d) (8) do not apply to motions for
examination for sexually transmitted diseases pursuant
to § 54-102a (a) or, presumably, to its predecessors.
Representative Ward further stated that the trial court
would be able to exercise its discretion in a proceeding
on a motion for an HIV test pursuant to the proposed
legislation, without giving any indication that there
were severe limitations, like those set forth in § 19a-
582 (d) (8), on the court’s discretion to grant such a
motion. See 37 H.R. Proc., supra, p. 7642; see also 37
H.R. Proc., Pt. 25, May, 1994 Spec. Sess., p. 9015, remarks
of Representative Ward (testing order is ‘‘up to the
judge’s discretion when he listens to both [the victim
and the defendant] and presumably to the state’s attor-
ney as well’’).
Additional considerations support the state’s con-
struction of § 54-102a (b). As we noted previously, the
pertinent language of § 54-102a (b), pertaining to HIV
testing in pending cases, and of § 54-102b, pertaining
to HIV testing in cases following the defendant’s convic-
tion, is materially identical, such that § 19a-582 (d) (8)
either applies to both of those provisions or to neither.
Consequently, under the defendant’s statutory con-
struction, the extremely strict, clear and imminent dan-
ger/compelling need requirement of § 19a-582 (d) (8)
also applies to § 54-102b, when the defendant has been
found guilty beyond a reasonable doubt of sexually
assaulting the victim. It simply is impossible to believe
that the legislature would have imposed that same
exacting standard when the state has already estab-
lished that the victim was sexually assaulted by the
defendant and in all other circumstances in which
someone is prompted, for whatever reason, to seek an
order requiring another person to submit to an HIV
test.16
Moreover, under § 54-102a (b), the court in a pending
criminal case ‘‘may’’ issue a testing order upon the
motion of the victim, whereas, under § 54-102b, the
court ‘‘shall’’ issue the requested order following the
defendant’s conviction. This permissive/mandatory dis-
tinction makes perfect sense if those provisions are
construed as the state contends: the court may, in the
exercise of its discretion, order the nonconsensual HIV
testing of a defendant in a pending criminal case, and
must issue such an order upon a finding of the defen-
dant’s guilt beyond a reasonable doubt. The distinction
makes little or no sense, however, if both §§ 54-102a
(b) and 54-102b are construed to require a victim to
satisfy the stringent requirements of § 19a-582 (d) (8),17
and we see no reason why the legislature would have
sought to achieve such a bizarre result.18
For all the foregoing reasons, we agree with the
state’s contention that, as long as the conditions set
forth in § 54-102a (b) are satisfied, that is, the defendant
has been charged with one of the offenses enumerated
in the statute, the alleged offense involved a completed
sexual act, as defined in General Statutes § 54-102b (c),
and the criminal case is pending, the trial court acts
within its discretion under the applicable statutory lan-
guage when it grants a motion for HIV testing.19 In other
words, the legislature did not intend for the require-
ments of § 19a-582 (d) (8) to apply to an order for testing
under § 54-102a (b).20 Because there is no dispute that
those conditions have been met in the present case,
the trial court did not abuse the discretion conferred
by the statute in granting the motions for testing. We
turn, therefore, to the issue of whether those statutory
requirements are sufficient to satisfy the protections of
the state constitution.
III
The defendant claims that subsections (a) and (b) of
§ 54-102a violate article first, § 7, of the state constitu-
tion insofar as they purport to authorize the trial court
to order an examination for a sexually transmitted dis-
ease or testing for HIV without probable cause to
believe that a defendant is suffering from such a disease
or virus, without a showing that an examination or
testing will assist the state in the criminal case, and
without any evidence that it will advance the health
interests of the victim or the public.21 We conclude that,
under article first, § 7, the trial court is required to make
a finding that an examination or testing pursuant to § 54-
102a (a) and (b), respectively, would provide useful,
practical information to a victim that cannot reasonably
be obtained in another manner before it may order
such an examination or testing. We reject, however,
the defendant’s contention that the court must find
probable cause to believe that the defendant has a sexu-
ally transmitted disease or HIV before an order under
§ 54-102a may be issued.
‘‘Determining the constitutionality of a statute pre-
sents a question of law over which our review is plenary.
. . . It [also] is well established that a validly enacted
statute carries with it a strong presumption of constitu-
tionality, [and that] those who challenge its constitu-
tionality must sustain the heavy burden of proving its
unconstitutionality beyond a reasonable doubt. . . .
The court will indulge in every presumption in favor of
the statute’s constitutionality . . . . Therefore, [w]hen
a question of constitutionality is raised, courts must
approach it with caution, examine it with care, and
sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 405,
119 A.3d 462 (2015).
To provide context for our state constitutional analy-
sis, we begin with a review of the general principles
governing warrantless searches. We note, as a threshold
matter, that it is firmly established that ‘‘[a] blood test
. . . constitutes a search and seizure under the federal
and state constitutions.’’ State v. Grotton, supra, 180
Conn. 293. Accordingly, the state concedes that, as a
general rule, it cannot constitutionally compel an indi-
vidual to submit to a blood test in the absence of proba-
ble cause and a warrant.22 See, e.g., Schneckloth v. Bus-
tamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d
854 (1973) (‘‘[i]t is well settled under the [f]ourth and
[f]ourteenth [a]mendments that a search conducted
without a warrant issued upon probable cause is per
se unreasonable . . . subject only to a few specifically
established and [well delineated] exceptions’’ (internal
quotation marks omitted)).
There are exceptional circumstances, however, in
which the government may conduct a search without
a warrant, without probable cause and, indeed, without
any showing of individualized suspicion. See, e.g., Skin-
ner v. Railway Labor Executives’ Assn., 489 U.S. 602,
624, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (in excep-
tional circumstances, ‘‘a search may be reasonable
despite the absence of [individualized] suspicion’’). Spe-
cifically, ‘‘[w]hen faced with special law enforcement
needs, diminished expectations of privacy, minimal
intrusions, or the like, the [United States Supreme
Court] has found that certain general, or individual,
circumstances may render a warrantless search or sei-
zure reasonable. . . . Those circumstances diminish
the need for a warrant, either because the public inter-
est is such that neither a warrant nor probable cause
is required . . . or because an individual is already on
notice, for instance because of his employment . . .
or [because of] the conditions of his release from gov-
ernment custody . . . that some reasonable police
intrusion on his privacy is to be expected.’’ (Citations
omitted; internal quotation marks omitted.) Maryland
v. King, 569 U.S. 435, 447, 133 S. Ct. 1958, 186 L. Ed.
2d 1 (2013).
Even in such cases, however, a search ‘‘must be rea-
sonable in its scope and manner of execution.’’ Id.,
448. ‘‘To say that no warrant is required is merely to
acknowledge that rather than employing a per se rule
of unreasonableness, we balance the [privacy related]
and [law enforcement related] concerns to determine
if the intrusion was reasonable. . . . This application
of traditional standards of reasonableness requires a
court to weigh the promotion of legitimate governmen-
tal interests against the degree to which [the search]
intrudes [on] an individual’s privacy.’’ (Citation omitted;
internal quotation marks omitted.) Id.; see also Skinner
v. Railway Labor Executives’ Assn., supra, 489 U.S. 624.
With this general background in mind, we turn to the
defendant’s claim that, to the extent that § 54-102a (a)
and (b) authorizes the trial court to issue an order
for an examination or testing without a showing of
probable cause to believe that such examination or
testing will advance the health interests of the victim
or the public, the statute runs afoul of article first, § 7,
of the state constitution. The state contends that, to
the contrary, the statute passes constitutional muster
because it falls within the ‘‘special needs’’ exception to
the probable cause requirement.23
‘‘[I]n determining the contours of the protections pro-
vided by our state constitution, we employ a multifactor
approach that we first adopted in [State v. Geisler, 222
Conn. 672, 685, 610 A.2d 1225 (1992)]. The factors that
we consider are (1) the text of the relevant constitu-
tional provisions; (2) related Connecticut precedents;
(3) persuasive federal precedents; (4) persuasive prece-
dents of other state courts; (5) historical insights into
the intent of [the] constitutional [framers]; and (6) con-
temporary understandings of applicable economic and
sociological norms [otherwise described as public poli-
cies]. . . . We have noted, however, that these factors
may be inextricably interwoven, and not every [such]
factor is relevant in all cases.’’ (Internal quotation marks
omitted.) State v. Kono, 324 Conn. 80, 92, 152 A.3d
1 (2016).
We begin by addressing the first and second prongs
of Geisler. With respect to the text of article first, § 7,
this court previously has held that, because it is similar
to the text of the fourth amendment, that consideration
alone provides no reason to depart from the interpreta-
tion of the federal constitution by the United States
Supreme Court. See, e.g., State v. Miller, 227 Conn.
363, 381, 630 A.2d 1315 (1993). Despite the linguistic
similarity, however, this court has held in a variety of
contexts that the state constitution provides greater
protection against governmental searches and seizures
than does the federal constitution. See id., 382 (‘‘article
first, § 7, provides broader protection than does the
fourth amendment against warrantless searches of
automobiles that have been impounded at police sta-
tions, even though probable cause exists’’); State v.
Oquendo, 223 Conn. 635, 652, 653, 613 A.2d 1300 (1992)
(under state constitution, unlike federal constitution,
‘‘what starts out as a consensual encounter becomes a
seizure if, on the basis of a show of authority by the
police officer, a reasonable person in the defendant’s
position would have believed that he was not free to
leave’’); State v. Geisler, supra, 222 Conn. 690 (in con-
trast to exclusionary rule under fourth amendment, ‘‘the
exclusionary rule under article first, § 7, requires that
evidence derived from an unlawful warrantless entry
into the home be excluded unless the taint of the illegal
entry is attenuated by the passage of time or intervening
circumstances’’); State v. Marsala, 216 Conn. 150, 171,
579 A.2d 58 (1990) (unlike exclusionary rule under
fourth amendment, ‘‘a good faith exception to the exclu-
sionary rule does not exist under [article first, § 7, of
the state constitution]’’); State v. Dukes, 209 Conn. 98,
120, 547 A.2d 10 (1988) (‘‘to the extent that [United
States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L.
Ed. 2d 427 (1973)] allows unlimited searches in contexts
that extend beyond full custodial arrests [under the
fourth amendment], we disavow its holding concerning
the level of protection to which individuals are entitled
against unreasonable searches and seizures under arti-
cle first, § 7, of the Connecticut constitution’’). Although
none of these cases involves the specific issue pre-
sented by this appeal, we agree with the defendant that
they generally support the proposition that article first,
§ 7, is more protective of the privacy rights of our citi-
zenry than the fourth amendment.
We next consider Geisler’s third and fourth prongs,
persuasive state and federal precedent. As we pre-
viously discussed, the general rule applied by both state
and federal courts is that probable cause and a warrant
are required for a search in the absence of exceptional
circumstances in which the government’s ‘‘ ‘special law
enforcement needs’ ’’ outweigh the intrusion on the
individual’s constitutional interests. Maryland v. King,
supra, 569 U.S. 447. Although the United States Supreme
Court has not addressed the precise question that is
the subject of this appeal, a sampling of the court’s
cases applying the special needs exception provides
guidance regarding the nature and scope of the special
needs doctrine and its potential applicability to exami-
nations and testing under § 54-102a.
In Skinner v. Railway Labor Executives’ Assn.,
supra, 489 U.S. 602, the court considered the constitu-
tionality of federal regulations requiring railroad
employees who are involved in certain accidents to
submit to blood and urine tests for alcohol and drugs.
Id., 606. The regulations also authorized breath and
urine tests to be administered to employees who violate
certain safety rules. Id. The court concluded that the
government’s interest in promulgating those regulations
fell into the special needs exception to the requirement
of probable cause and a warrant because (1) the ‘‘cov-
ered employees [were] engaged in [safety sensitive]
tasks’’; id., 620; and were required to ‘‘discharge duties
fraught with such risks of injury to others that even a
momentary lapse of attention [could] have disastrous
consequences’’; id., 628; (2) ‘‘ ‘the burden of obtaining
a warrant [was] likely to frustrate the governmental
purpose behind the search’ ’’ because ‘‘the delay neces-
sary to procure a warrant . . . [could] result in the
destruction of valuable evidence,’’ namely, evidence of
the level of alcohol and drugs in the employee’s blood-
stream at the time of the accident; id., 623; (3) testing
would deter employees from using drugs and alcohol
while on duty because they could not predict the timing
of the tests; id., 629; and (4) ‘‘[t]he testing procedures
. . . help railroads obtain invaluable information about
the causes of major accidents . . . and . . . take
appropriate measures to safeguard the general public’’
from recurrences. (Citation omitted.) Id., 630. The court
also concluded that the special needs of the government
outweighed the employees’ privacy interests because
(1) the intrusions occasioned by the blood, breath and
urine tests were not significant; id., 624–26; and (2)
‘‘the expectations of privacy of covered employees are
diminished by reason of their participation in an indus-
try that is regulated pervasively to ensure safety, a goal
dependent, in substantial part, on the health and fitness
of covered employees.’’ Id., 627. Accordingly, the court
concluded that the regulations survived fourth amend-
ment scrutiny. Id., 633.
In a second decision issued on the same day as Skin-
ner, the United States Supreme Court undertook to
determine the constitutionality of a drug testing pro-
gram that required individuals to submit to drug tests
as a condition for placement in any position in the
United States Customs Service that involved drug inter-
diction or the carrying of firearms. See National Trea-
sury Employees Union v. Von Raab, 489 U.S. 656, 660–
61, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The court
determined that the government had a substantial inter-
est in ensuring that employees were physically fit and
that they not be tempted by bribes from drug traffickers
or by access to the large amounts of contraband seized
by the Customs Service. Id., 669–70. The court further
explained that the government had an interest in testing
employees who are armed because of the risk of ‘‘injury
to others that even a momentary lapse of attention’’
could create. (Internal quotation marks omitted.) Id.,
670. With respect to the employees’ privacy interests,
the court observed that ‘‘employees who are directly
involved in the interdiction of illegal drugs or who are
required to carry firearms in the line of duty . . . have
a diminished expectation of privacy in respect to the
intrusions occasioned by a urine test.’’ Id., 672. The
court ultimately concluded that the government’s com-
pelling interests in safeguarding the border and public
safety outweighed the employees’ privacy interests,
and, therefore, the drug testing program was reasonable
under the fourth amendment. Id., 677.24
Thereafter, in Chandler v. Miller, 520 U.S. 305, 117
S. Ct. 1295, 137 L. Ed. 2d 513 (1997), the court consid-
ered the constitutionality of a Georgia statute requiring
candidates for certain state offices to certify that they
had taken a drug test and that the test result was nega-
tive. Id., 308. The court observed that its precedents,
including Skinner and Von Raab, ‘‘establish that the
proffered special need for drug testing must be substan-
tial—important enough to override the individual’s
acknowledged privacy interest, sufficiently vital to sup-
press the [f]ourth [a]mendment’s normal requirement
of individualized suspicion.’’ Id., 318. The court further
observed that Georgia had produced no evidence that
it had a particular problem with state officeholders
abusing drugs or that the testing scheme, which would
allow candidates for office to abstain from drug use
before testing, would deter candidates who use drugs
from seeking office. Id., 319–20. The court concluded
that, because ‘‘public safety [was] not genuinely in jeop-
ardy, the [f]ourth [a]mendment preclude[d] the suspi-
cionless search, no matter how conveniently arranged.’’
Id., 323.
Finally, and most recently, in Maryland v. King,
supra, 569 U.S. 435, the United States Supreme Court
considered whether a Maryland statute authorizing the
taking of a DNA sample as part of a routine booking
procedure for serious offenses violated the fourth
amendment. Id., 440. The court concluded that the state
had a significant interest in knowing the identity and
criminal history of an arrestee that the state has taken
into custody in order to assess the danger that the
arrestee poses to the staff of the facility where the
arrestee is detained, other detainees and the public. Id.,
449–56. The court further concluded that ‘‘[t]he special
needs cases, though in full accord with the [conclusion
that the DNA testing procedure is constitutional], do
not have a direct bearing on the issues presented in
[the] case, because unlike the search of a citizen who
has not been suspected of a wrong, a detainee has a
reduced expectation of privacy.’’ Id., 463. In addition,
the DNA test was not intended to reveal any private
medical information, which ‘‘would present additional
privacy concerns . . . .’’ Id., 465. Accordingly, the
court rejected the fourth amendment challenge to the
statute.25 Id., 465–66.
We glean the following general principles from these
cases. First, under the special needs doctrine, the gov-
ernment interest that is furthered by a suspicionless
search must be ‘‘substantial . . . .’’ Chandler v. Miller,
supra, 520 U.S. 318; see id. (‘‘the proffered special need
. . . must be substantial—important enough to over-
ride the individual’s acknowledged privacy interest, suf-
ficiently vital to suppress the [f]ourth [a]mendment’s
normal requirement of individualized suspicion’’); see
also Maryland v. King, supra, 569 U.S. 448 (characteriz-
ing government interest in requiring DNA test as part
of routine booking procedure as ‘‘[u]rgent’’); National
Treasury Employees Union v. Von Raab, supra, 489
U.S. 670 (suspicionless drug testing was permissible
under fourth amendment because government had ‘‘a
compelling interest in ensuring that [frontline] interdic-
tion personnel are physically fit . . . and have unim-
peachable integrity and judgment’’); Skinner v. Railway
Labor Executives’ Assn., supra, 489 U.S. 624 (suspi-
cionless search may be justified when government inter-
est is ‘‘important’’). Second, the need for the search
cannot be established by conclusory assertions of need
or the desire to send a symbolic message but, rather,
must be supported by evidence in the record. See Chan-
dler v. Miller, supra, 321, 322 (suspicionless drug testing
of candidates for state office in Georgia was not reason-
able when government presented ‘‘no evidence of a
drug problem among the [s]tate’s elected officials’’ and
the need established was merely ‘‘symbolic’’). Third,
‘‘the government’s interest in dispensing with the war-
rant requirement is at its strongest when . . . the bur-
den of obtaining a warrant [would] likely . . . frustrate
[the underlying] governmental purpose . . . .’’ (Inter-
nal quotation marks omitted.) Skinner v. Railway
Labor Executives’ Assn., supra, 623; see also Chandler
v. Miller, supra, 314 (suspicionless search may be rea-
sonable when ‘‘an important governmental interest fur-
thered by the intrusion would be placed in jeopardy
by a requirement of individualized suspicion’’ (internal
quotation marks omitted)). Fourth, the government’s
interest must outweigh the privacy interests of the sub-
ject of the search. See National Treasury Employees
Union v. Von Raab, supra, 665 (‘‘it is necessary to bal-
ance the individual’s privacy expectations against the
[g]overnment’s interests’’); see also Maryland v. King,
supra, 448 (court is required ‘‘to weigh the promotion
of legitimate governmental interests against the degree
to which [the search] intrudes [on] an individual’s pri-
vacy’’ (internal quotation marks omitted)).
As we indicated, the United States Supreme Court
has not yet had occasion to apply these principles to
a statute that authorizes HIV testing of persons charged
with certain crimes.26 Several other courts, however,
have had the opportunity to do so, and they have uni-
formly concluded that such statutes do not violate con-
stitutionally protected privacy rights. See, e.g., United
States v. Ward, 131 F.3d 335, 342 (3d Cir. 1997) (federal
statute authorizing victims to request court order for
HIV testing of defendants charged with certain offenses
was constitutional); Johnetta J. v. Municipal Court,
218 Cal. App. 3d 1255, 1260, 1285, 267 Cal. Rptr. 666(1990) (California statute requiring HIV testing of defen-
dants charged with interfering with peace officer by
biting officer was constitutional under federal and Cali-
fornia constitutions).27 A closer examination of these
cases reveals that they do not support court-ordered
testing under the present circumstances. First, the cases
involving HIV testing of defendants who have been con-
victed or incarcerated are distinguishable from the pres-
ent case. Although an individual who has been charged
with a crime has, in certain respects, diminished expec-
tations of privacy; see, e.g., Maryland v. King, supra,569 U.S. 448 (holding that warrantless DNA test of
defendant charged with serious offense was constitu-
tional because, among other reasons, ‘‘[t]he arrestee is
already in valid police custody for a serious offense
supported by probable cause’’); those privacy expecta-
tions are less diminished than those of a defendant who
has been convicted. See, e.g., Harris v. Thigpen, 941
F.2d 1495, 1514 (11th Cir. 1991) (‘‘prisoners’ constitu-
tional rights are necessarily subject to substantial
restrictions and limitations in order for correctional
officials to achieve legitimate correctional goals and
[to] maintain institutional security’’); Dunn v. White,
880 F.2d 1188, 1194 (10th Cir. 1989) (defendant’s ‘‘incar-
ceration changes the relative weight accorded [to the
interests of the government and the defendant]’’), cert.
denied, 493 U.S. 1059, 110 S. Ct. 871, 107 L. Ed. 2d 954(1990); People v. Adams, 149 Ill. 2d 331, 348, 59 N.E.2d
574 (1992) (Illinois statute was constitutional because
it ‘‘operate[d] only at that point in the proceedings when
a defendant no longer enjoys a presumption of inno-
cence but instead stands at the threshold of incarcera-
tion, probation, or other significant curtailment of per-
sonal freedom’’).
Although another case relied on by state, United
States v. Ward, supra, 131 F.3d 335, does involve HIV
testing, it is distinguishable because, in Ward, the fed-
eral statute authorizing HIV testing for defendants
charged with certain crimes required victims seeking
such testing to demonstrate that ‘‘the test would provide
information necessary for [the] health of the victim of
the alleged offense . . . .’’ (Internal quotation marks
omitted.) Id., 339 n.2, quoting 42 U.S.C. § 14011 (b) (2)
(1994). The very question before us in the present case
is whether the state constitution requires such a finding
before HIV testing may be ordered pursuant to § 54-
102a (b).
Finally, for the following reasons, we are not per-
suaded by the reasoning of cases holding that the state
has a compelling interest in protecting the health inter-
ests of victims that, under all circumstances, justifies
suspicionless HIV testing of a defendant charged with
certain sexual offenses.28 In State in the Interest of J.
G., 151 N.J. 565, 701 A.2d 1260 (1997), the court noted
that the accused juveniles had presented undisputed
and unanimous expert testimony that ‘‘there would be
no medical benefit to the victim, in either treatment
or diagnosis, from testing the accused or convicted
offender. In [the] view [of the expert witnesses pre-
sented by the juveniles], the only appropriate course is
for the victim to undergo HIV testing.’’ Id., 583. The
court then observed that there was authority for the
proposition that, during the period immediately fol-
lowing the victim’s potential exposure to HIV, testing
of the defendant could be useful in determining whether
the victim should begin or continue prophylactic treat-
ment; id., 584–85; and could provide psychological bene-
fits to the victim. See id., 586 (‘‘[i]n those cases of sexual
assault [in which] the accused is apprehended rela-
tively soon after the assault, involuntary testing, with
appropriate due process and confidentiality protections
for the accused, could mitigate one of the primary ongo-
ing harms of the assault, the survivor’s fear and uncer-
tainty about the risk of contracting HIV’’ (emphasis
added; internal quotation marks omitted)). The court
ultimately concluded that the New Jersey HIV testing
statute was reasonable, and therefore constitutional, as
applied to the accused juveniles, despite the fact that
they had been charged in 1994 and the case was not
decided until 1997.29 See id., 571, 588–90, 593–94. In our
view, however, the fact that testing the victim does
not yield useful medical information during the several
months immediately following potential exposure
establishes only that there is medical utility in testing
the defendant for HIV during that period.30
Indeed, a number of the courts that have upheld the
constitutionality of nonconsensual HIV testing statutes
nevertheless have expressly recognized that, when HIV
testing of the victim would yield useful information,
testing the defendant has little value. For example,
although the court in Johnetta J. v. Municipal Court,
supra, 218 Cal. App. 3d 1285, concluded that the Califor-
nia statute authorizing HIV testing was constitutional,
the court questioned the wisdom of the statute in light
of expert testimony ‘‘that the only really effective means
of determining HIV infection is for the [potentially
infected] concerned public safety employees to undergo
their own tests.’’ Id. Similarly, even though the court
in State v. Handy, 191 Vt. 311, 44 A.3d 776 (2012),
determined that the Vermont statute at issue, which
required certain convicted defendants to submit to HIV
testing, was reasonable; see id., 324; it observed that,
when testing is not done during the ‘‘latency period
during which the victim’s own testing might not yet
reveal the presence of the virus . . . neither a negative
nor a positive result from the offender’s testing would
appear to have any value for the victim. Moreover, any
positive test result from the offender would have limited
value for the additional reasons that the tests do not
indicate when the virus was [acquired] and that the
chances of passing the virus . . . to a sexual assault
victim are very small. Indeed, even those who testified
in support of testing offenders acknowledged that such
testing provided little or no medically useful informa-
tion for victims of sexual crimes.’’ Id., 322; see also id.,
321–22 (physician testified before legislative committee
considering mandatory HIV testing legislation that ‘‘test-
ing sex offenders following conviction offered no medi-
cal benefit for victims because health care issues need
to be addressed as soon after the sexual assault as
possible and, given the normal lag time between the
commission of the crime and conviction, the victims
will have or should have already been tested themselves
for sexually transmitted diseases’’); cf. People v. J. G.,
171 Misc. 2d 440, 450, 655 N.Y.S.2d 783 (1996) (court
tended to agree with expert who testified that, when
more than two and one-half years have passed since
assault, ‘‘the only reliable test is one [that] would be
performed on the victim herself and that a test on the
defendant at such a late date does not have any medical
utility’’); State v. Handy, supra, 323 (‘‘[S]exual assault
victims do not necessarily consider the issue of testing
offenders in a logical way as perceived by nonvictims.
While recognizing that testing victims is the only way
to determine definitively whether they have contracted
an infectious sexual disease, and in particular [HIV]
. . . victims want the peace of mind that would result
from also testing the perpetrator and . . . they feel
further violated if their attacker[s] [refuse] to submit
to the testing of bodily fluids forced [on] them during
a sexual assault.’’). In light of the questionable benefits
of testing a defendant for HIV when testing the victim
will yield reliable results, we are not persuaded by these
cases that the special needs doctrine justifies suspi-
cionless testing during that period.
The sixth prong of Geisler, contemporary under-
standings of applicable economic and sociological
norms and relevant public policies in this state, bolsters
this conclusion. Section 54-102a (b) was the codifica-
tion of Spec. Sess. P.A. 94-6, § 27. The bill as originally
proposed contained the following provision: ‘‘It is the
policy of the state of Connecticut that testing for HIV
or AIDS status shall be the voluntary act of the person
on whom the test is performed, and that the results of
such tests shall be disclosed only to the subject of the
test. The preferred procedure for determining HIV/AIDS
status of sexual assault victims is that the victim should
be tested. This act constitutes an exception to that
policy for the sole purpose of complying with the
requirements of the federal Drug Control and System
Improvement Formula Grant Program . . . .’’31 Substi-
tute House Bill No. 5790, 1994 Sess., § 1. Representative
Ellen Scalettar stated that this provision expressed the
current policy of the state; 37 H.R. Proc., Pt. 21, 1994
Sess., p. 7630; and that it was intended to ‘‘clarif[y] that
no challenge can be brought to the current practices
based [on] the new language in this statute which seems
to express a contrary policy . . . .’’ Id., p. 7637. Repre-
sentative Dale W. Radcliffe expressed concern, how-
ever, that, if state policy changed in the future, the
provision would make it difficult to implement the new
policy. Id., pp. 7630–33; see also id., p. 7637, remarks
of Representative Radcliffe (policy provision might ‘‘tie
the hands of those who have to implement HIV testing
. . . who may wish to respond to conditions that we
may not be able to foresee at this time’’). Representative
Radcliffe’s view ultimately prevailed, and the provision
was deleted. See House Amendment Schedule B to Sub-
stitute House Bill No. 5790, 1994 Sess. (passed May 4,
1994); 37 H.R. Proc., Pt. 21, 1994 Sess., p. 7638.
As is clear from the debate on the proposed legisla-
tion, however, the policy set forth in the deleted provi-
sion reflected the current views of most legislators, at
least with respect to testing the defendant during the
period when testing the victim would provide useful
results. Representative Norma Gyle stated that ‘‘none
of us wanted this specific policy to allow victims to ask
whether . . . they could have their assailant tested for
HIV because there is a window that says that if someone
is HIV positive, they may not test positive for quite
some time and therefore the victim could get a false
sense of security. . . . That’s why we were reluctant
to put this legislation into place.’’ 37 H.R. Proc., Pt. 21,
1994 Sess., p. 7626. Arguing in favor of the provision
authorizing HIV testing for defendants who have been
charged with certain offenses, Representative Farr
stated that ‘‘[it] doesn’t do an awful lot of good for
the victim to find out a year after the assault that the
individual had AIDS. Chances are by then that the victim
is going to know whether [HIV] has been transmitted.’’
Id., pp. 7639–40. Representative Richard D. Tulisano
opposed the proposed provision on the ground that
‘‘the mere fact [that] a negative or positive comes up
on the offender is no indication of whether . . . the
victim will have a negative or a positive reading, and
even if in fact there is a negative reading after [there
is a] positive on the offender . . . does not mean
because of the latency of the disease, it could not occur
again in the future, and since our issues are to protect
the victims of sexual assault the best we can, whatever
resources we have ought to be . . . given to them so
they can be retested.’’ Id., pp. 7648–49. Representative
Lenny T. Winkler opposed the provision because a nega-
tive test might give a ‘‘false sense of security . . . .’’ Id.,
p. 7650; see also id., p. 7664, remarks of Representative
Scalettar (‘‘the information that would be gained from
testing upon conviction is not deemed to be information
that would be helpful to the victim of the crime’’); id.,
p. 7668, remarks of Representative Andrea L. Stillman
(opposing proposed legislation because it could give
victims false sense of security).
In addition, several groups providing services and
support to victims of sexual assault opposed the pro-
posed legislation mandating HIV testing of convicted
offenders on the ground that testing the defendant gen-
erally provides little benefit to the victim. The Connecti-
cut Sexual Assault Crisis Services, Inc., submitted docu-
mentation opposing the proposed legislation because
‘‘[i]t [could] take up to two years for an offender to
be convicted. A victim who is concerned about the
possibility of HIV transmission needs information about
her HIV status as quickly as possible and should be
tested herself. Our concern is that the victim might
not take necessary safety precautions in the interim
between the assault and the testing of the convicted
offender.’’ Conn. Joint Standing Committee Hearings,
supra, p. 1577. Connecticut Sexual Assault Crisis Ser-
vices, Inc., submitted a memorandum opposing the pro-
posed legislation ‘‘because quite simply it does not help
victims of sexual assault, and because it misleads vic-
tims into believing that testing offenders will give them
useful information. Having been misled, victims may
not institute safe sex practices and may unknowingly
make decisions [that] are deleterious to their health. If
the goal of HIV testing is to give medical information
or psychological reassurance to the survivor that she
was not infected, then the survivor, not the offender,
should be offered testing.’’ Id., p. 1578. The Department
of Public Health and Addiction Services submitted a
memorandum providing that ‘‘[l]egislators should be
aware that this bill will not provide much help to women
who are sexually assaulted. Because of the frequently
long delay between the sexual assault and the [convic-
tion] of the offender, a woman will be able to get her
own test result before that of the perpetrator. In any
case, the victim will need to [be] counseled and tested
for HIV and other [sexually transmitted diseases] to
determine whether . . . transmission occurred and to
obtain medical care. This is because a negative test
[of] the perpetrator cannot ensure that he was not HIV
infected, since it generally takes about six months after
a [newly acquired] infection for the test result to read
positive. In addition, a positive test result does not mean
that the woman was infected. She still must be tested
herself.’’ Id., p. 1581. The Susan B. Anthony Project
Sexual Assault Crisis Services opposed the proposed
legislation because testing the defendant long after a
sexual assault, by which time ‘‘[t]he victim should have
. . . received information on anonymous testing, been
tested (at least once) and practiced safety precautions
with partners and family until two HIV tests show nega-
tive results,’’ is ‘‘pointless.’’ Id., p. 1582. In addition, a
defendant’s positive test result ‘‘could lead to unneces-
sary anxiety on the part of the victim (the chance of
contracting HIV from one sexual contact is very low),
as well as wrong assumptions that the victim is also
HIV positive . . . .’’ Id. The Connecticut Chapter of the
National Organization for Women opposed the legisla-
tion because, ‘‘[i]f a victim is concerned with the possi-
bilities [of] HIV infection she should not wait until the
offender is convicted . . . but seek confidential testing
immediately and within [six to eight] months after the
assault.’’ Id., p. 1583.
Indeed, the legislative history of Spec. Sess. P.A. 94-6,
§ 27, reveals that the primary purpose of the legislation
authorizing HIV testing of defendants charged or con-
victed of certain sexual offenses was not to provide
useful information to the victims of sexual assault, but
to ensure that the state would not lose funding under the
federal Drug Control and System Improvement Formula
Grant Program. See 37 H.R. Proc., Pt. 21, 1994 Sess.,
p. 7626, remarks of Representative Gyle (reason that
legislature wanted to pass legislation was to satisfy
requirements for receiving federal funding); see also
id., p. 7622, remarks of Representative Scalettar (‘‘the
legislation was not proposed due to . . . a change in
the policy of the state, but only to allow us to recapture
those federal funds’’); id., p. 7639, remarks of Represen-
tative Farr (‘‘the underlying bill is required by federal
law’’); id., p. 7647, remarks of Representative Gyle
(‘‘[w]e’re [enacting the legislation] because the federal
government is blackmailing us into doing it’’); id., pp.
7664–65, remarks of Representative Scalettar (indicat-
ing that proposed legislation would not have been intro-
duced but for federal funding issue because testing
is not beneficial to victims); id., p. 7665, remarks of
Representative Scalettar (avoiding loss of federal fund-
ing ‘‘is the sole reason for the bill’’); Conn. Joint Standing
Committee Hearings, supra, p. 1579, written testimony
of Thomas A. Siconolfi, Director, Policy Development
and Planning Division of Office of Policy and Manage-
ment (enacting legislation ‘‘would ensure [s]tate compli-
ance with a federal mandate concerning the [federal]
Drug Control and System Improvement . . . block
grant and prevent the loss of 10 percent of Connecticut’s
share of the grant in the next fiscal year’’); id., p. 1581,
written testimony of Department of Public Health and
Addiction Services (giving ‘‘reluctant support’’ to pro-
posed legislation, even though it would provide little
benefit to victims, because, ‘‘[i]f it is not passed, Con-
necticut will lose criminal enforcement funds’’).
We agree with the Supreme Court of Vermont that,
‘‘[i]f retaining federal funding were the sole governmen-
tal interest supporting the challenged portion of the
[Vermont] statute, then the constitutionality of the law
would be suspect because there would be no nexus
between the law’s intrusion on even the diminished
privacy interest . . . and the information obtained
from that intrusion.’’ State v. Handy, supra, 191 Vt.
322–23. The state’s interest in obtaining funding, stand-
ing alone and in the absence of any important special
need for specific information, cannot trump an individu-
al’s constitutional right to be free from suspicionless
searches. To put it more directly, a state cannot lawfully
be induced by a payment from the federal government
to engage in conduct that violates the constitutional
rights of its citizenry. We recognize, however, that a
number of legislators believed that, at least within the
time period immediately following a sexual assault,
when testing the victim would not yield any useful infor-
mation, testing the defendant could provide a practical
benefit to the victim. See 37 H.R. Proc., Pt. 21, 1994
Sess., p. 7651, remarks of Representative Farr (‘‘[T]he
purpose of the test is to give some peace of mind to
women who are rape victims. . . . I presume that the
overwhelming majority of accused in rape cases do not
have [HIV] and that when a woman wants to know
whether . . . the accused who had raped her had
[HIV], [and] that if she finds out that . . . he doesn’t
test positive for [HIV], she may have some peace of
mind. Admittedly, it isn’t perfect because that individual
may have [HIV] that . . . doesn’t yet show up on test-
ing, but the whole purpose of the amendment is quite
simple. It’s to give some peace of mind to some [vic-
tims].’’); id., p. 7652, remarks of Representative Robert
R. Simmons (‘‘the main purpose . . . of this amend-
ment [allowing the testing of a defendant who has been
charged] is to provide some comfort or some protection
to the victim’’); id., p. 7659, remarks of Representative
Ward (arguing that victims are entitled to information
about health status of persons who assaulted them and
are capable of making intelligent decisions regarding
that information); id., p. 7670, remarks of Representa-
tive Alan M. Kyle (arguing that legislation would operate
to ‘‘dispel one of the very major fears that would be a
portion of that psychological trauma [namely] whether
. . . at some time after the incubation period of this
very horrible disease, [the victim] may wind up carrying
[HIV]’’); id., p. 7672, remarks of Representative Kyle
(testing may relieve victim of fear, even if results are
not definitive).
On the basis of the foregoing, we conclude that the
granting of a motion for HIV testing pursuant to § 54-
102a (b) based solely on a finding that a defendant has
been charged with an offense enumerated in a statute
that proscribes a sexual act violates the defendant’s
right to be free from unreasonable searches under arti-
cle first, § 7, of the Connecticut constitution. The legisla-
tive history of § 54-102a (b) and cases from other juris-
dictions considering the constitutionality of similar
statutes make it clear that, in many cases, such testing
would provide no real medical benefit to the victim.
When that is the case, the proffered special need is not
sufficient to override a defendant’s recognized privacy
interest. See, e.g., Chandler v. Miller, supra, 520 U.S.
318. Moreover, requiring a showing of the practical use-
fulness of HIV testing to the victim at a hearing on the
motion for such testing would in no way frustrate the
legitimate purpose of the statute. See, e.g., Skinner v.
Railway Labor Executives’ Assn., supra, 489 U.S. 619.
Indeed, doing so would advance the state’s public policy
that HIV testing should be consensual unless it is neces-
sary to protect the health of another. See General Stat-
utes § 19a-582 (d) (8). Accordingly, we conclude that,
in cases in which testing would provide no real practical
benefit to the victim, the state’s interest in requiring
testing does not outweigh the defendant’s reasonable
privacy expectations. Cf. National Treasury Employees
Union v. Von Raab, supra, 489 U.S. 665–66.
We also conclude, therefore, that we must place an
interpretive gloss on § 54-102a (b) to render it compati-
ble with the requirements of article first, § 7. See, e.g.,
State v. Indrisano, 228 Conn. 795, 805–806, 640 A.2d
986 (1994) (‘‘[W]e may . . . add [an] interpretive gloss
to a challenged statute in order to render it constitu-
tional. In construing a statute, the court must search
for an effective and constitutional construction that
reasonably accords with the legislature’s underlying
intent.’’ (Internal quotation marks omitted.)). Specifi-
cally, we hold that, before ordering testing pursuant to
§ 54-102a (b), a court must first make a finding that
such testing would provide useful, practical information
to a victim that cannot reasonably be obtained other-
wise. In making this determination, the court ordinarily
may presume that testing during the six month period
immediately following the alleged assault, when testing
the victim for HIV might not yield useful information,
would be of practical benefit to the victim.
In reaching this conclusion, we are mindful that, even
after the six month period immediately following the
assault has passed, a defendant’s negative test result
could establish that the defendant has not exposed the
victim to HIV. At that point, however, the defendant’s
privacy interest ordinarily would outweigh any benefit
to the victim because the burden of self-testing on the
victim generally would be slight, and, unlike the infor-
mation obtained from testing the defendant, the infor-
mation obtained from testing the victim would be defini-
tive. If the victim can establish, however, that, for some
reason, the burden of undergoing a test would not be
slight and, for example, that a negative test result from
the defendant would be definitive of the victim’s HIV
status because the defendant was the exclusive source
of any potential infection, a testing order could be war-
ranted. The court also should consider other relevant
facts and circumstances in determining whether testing
would provide useful, practical information to the vic-
tim after the six month period immediately following
the assault has expired.32
The foregoing reasoning applies equally to an order
for an examination for sexually transmitted diseases
pursuant to § 54-102a (a), and, consequently, the same
showing that must be made prior to the issuance of an
order for testing under § 54-102a (b) also must be made
prior to the issuance of an order for an examination
under § 54-102a (a). Because of the differences between
sexually transmitted diseases and HIV, however, includ-
ing the fact § 54-102a (a) provides for an examination
and § 54-102a (b) provides for testing, we acknowledge
that different considerations may well be relevant in
determining whether that standard has been met under
the two statutory subsections.
We therefore conclude that, in the absence of any
evidence that an examination under § 54-102a (a) would
provide a real practical benefit to the victim that cannot
reasonably be obtained in another manner, an order
for such an examination would also violate article first,
§ 7. Thus, a person seeking an order pursuant to § 54-
102a (a) must make a showing that an examination
would provide useful, practical information to the vic-
tim that cannot reasonably be obtained in another man-
ner. Because the record before us contains no informa-
tion regarding the incubation periods for sexually
transmitted diseases or other information that might
assist us in providing guidance as to when an examina-
tion under § 54-102a (a) would be of practical benefit,
we leave the determination as to whether an order
for such an examination is warranted to the informed
discretion of the trial court.33
The state contends that § 54-102a (b) as written satis-
fies the state constitution because ‘‘the government has
a compelling interest in testing in furtherance of pro-
tecting the health and welfare of its citizens by stem-
ming the spread of HIV/AIDS. Identifying infected indi-
viduals allows them to receive treatment for their
individual health needs and education for changing
behaviors and for preventing infection of others. This
identification also permits public health officials, when
necessary, to inform partners of the tested individual
who, in turn, can undergo testing and, if necessary,
treatment.’’ There is no evidence in the record, however,
that individuals accused of sexual assault are at greater
risk of carrying HIV than members of the general public.
Thus, even if we were to assume that the statute was
intended to protect not only victims, but also the defen-
dant and the public at large, there is no connection
between the diminished privacy expectations of a
defendant charged with sexual assault, which derive
from the defendant’s alleged conduct toward the victim,
and the state’s desire for information about the defen-
dant’s HIV status in order to protect the defendant him-
self or the public. See, e.g., State v. Handy, supra, 191
Vt. 322–23 (Vermont’s HIV testing statute would be
unconstitutional if there were ‘‘no nexus between the
law’s intrusion on even the diminished privacy interest
[of the defendant] and the information obtained from
that intrusion’’); In re Juveniles A, B, C, D, E, 121
Wn. 2d 80, 104, 105–106, 847 P.2d 455 (1993) (Utter,
J., concurring in part, dissenting in part) (arguing that
state’s interest in combating spread of AIDS did not
justify testing of convicted defendant because same
rationale would apply to ‘‘any individual whether
charged and convicted or not’’ and that ‘‘[t]he [s]tate’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’’ (emphasis in origi-
nal)); see also Chandler v. Miller, supra, 520 U.S. 321,
322 (suspicionless drug testing of candidates for state
office was not reasonable when Georgia asserted ‘‘no
evidence of a drug problem among [its] elected offi-
cials’’ and need established was merely ‘‘symbolic’’). In
other words, when a defendant has been charged with
forcibly exposing a victim to his bodily fluids against
the victim’s will, he cannot reasonably complain if the
victim seeks private information about any diseases to
which he or she may have been involuntarily exposed,
even if the risk that the defendant is infected is no
greater than the risk for a member of the general public.
We can perceive no reason, however, why a defendant
should have a diminished expectation of privacy with
respect to information required to protect his own
health or the health of individuals who have consensu-
ally engaged in intimate contact with him such as to
warrant suspicionless testing. If those individuals have
reason to believe that the defendant exposed them to
HIV and self-testing would not yield useful results, they
may seek a testing order pursuant to § 19a-582 (d) (8).
Accordingly, we reject this claim.
In summary, we conclude that § 54-102a (b) does not
incorporate the standard set forth in § 19a-582 (d) (8).
We also conclude, however, that, under article first, § 7,
of the state constitution, the trial court was required
to make a finding that an examination or testing or
both would provide useful, practical information to the
victim that could not reasonably be obtained otherwise,
before ordering any such examination or testing in
accordance with § 54-102a (a) and (b), respectively. It
is clear that the trial court did not apply this standard.
Because the state and the victims were not on notice
that they were required to satisfy this requirement, the
case must be remanded for a new hearing on their
motions under § 54-102a.
The trial court’s order directing the defendant to sub-
mit to an examination for sexually transmitted diseases
pursuant to § 54-102 (a) and for HIV testing pursuant
to § 54-102 (b) is reversed and the case is remanded to
that court for further proceedings consistent with this
opinion.
In this opinion ROBINSON, C. J., and MULLINS,
KAHN and VERTEFEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** July 14, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
This charge was based on conduct that allegedly had occurred between
2012 and 2016. Because the statutory subsection under which the defendant
was charged, namely, subsection (c) of § 53a-83, did not go into effect until
2013; see Public Acts 2013, No. 13-166, § 3, we use the version of § 53a-83
that first contained that statutory subsection.
2
The conspiracy to commit trafficking in persons charge also was based
on conduct that allegedly had occurred between 2012 and 2016. In the
interest of simplicity, we use the statutory revision of § 53a-192a that was
in effect at the beginning of that four year period.
3
General Statutes § 54-102a provides in relevant part: ‘‘(a) The court before
which is pending any case involving a violation of any provision of sections
53a-65 to 53a-89, inclusive, may, before final disposition of such case, order
the examination of the accused person . . . to determine whether or not
the accused person . . . is suffering from any sexually transmitted dis-
ease . . . .
‘‘(b) Notwithstanding the provisions of section 19a-582, the court before
which is pending any case involving a violation of section 53-21 or any
provision of sections 53a-65 to 53a-89, inclusive, that involved a sexual act,
as defined in section 54-102b, may, before final disposition of such case,
order the testing of the accused person . . . for the presence of the etiologic
agent for acquired immune deficiency syndrome or human immunodeficie-
ncy virus . . . . If the victim of the offense requests that the accused person
. . . be tested, the court may order the testing of the accused person . . .
in accordance with this subsection and the results of such test may be
disclosed to the victim. The provisions of sections 19a-581 to 19a-585, inclu-
sive, and section 19a-590, except any provision requiring the subject of an
HIV-related test to provide informed consent prior to the performance of
such test and any provision that would prohibit or limit the disclosure of
the results of such test to the victim under this subsection, shall apply to
a test ordered under this subsection and the disclosure of the results of
such test. . . .’’
Although the state filed its motion before a 2018 amendment to subsection
(a) of § 54-102a replaced the term ‘‘venereal disease’’ with ‘‘sexually transmit-
ted disease’’; Public Acts 2018, No. 18-168, § 29; we use the current revision
of the statute in light of the potential for future litigation under the current
statute. The amendment has no bearing on the merits of the defendant’s
appeal.
4
The defendant appealed from the trial court’s order to the Appellate
Court, and we subsequently granted his motion to transfer the appeal to
this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-
2. After the appeal was filed, certain of the same victims who had filed
motions under § 54-102a in the trial court sought permission to file an amicus
curiae brief in this court in support of the state’s position, and we granted
that request.
5
The defendant also claims that the trial court abused its discretion in
ordering that he submit to testing for sexually transmitted diseases pursuant
to § 54-102a (a). The portion of his brief addressing this claim, however,
focuses exclusively on § 54-102a (b), and the defendant conceded at oral
argument before this court that § 54-102a (a) does not incorporate the stan-
dard that he claims applies to § 54-102a (b). Accordingly, we conclude that
any claim that the trial court abused its discretion in ordering an examination
pursuant to § 54-102a (a) has been abandoned. The defendant has not,
however, abandoned his contention that § 54-102a (a) is unconstitutional
as applied to him on the ground that the state failed to establish probable
cause to believe that examining him for sexually transmitted diseases was
required to protect the health of the public or the alleged victims.
6
The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized.’’
The fourth amendment’s protection against unreasonable searches and
seizures is made applicable to the states through the due process clause of
the fourteenth amendment to the United States constitution. See, e.g., Mapp
v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
7
The constitution of Connecticut, article first, § 7, provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable searches or seizures; and no warrant to search any place, or to
seize any person or things, shall issue without describing them as nearly
as may be, nor without probable cause supported by oath or affirmation.’’
8
We note that, during the pendency of this appeal, the defendant was
convicted, following a jury trial, of the underlying offenses. He has appealed
from that conviction, and that appeal is currently pending before this court.
As we discuss in greater detail in part I of this opinion, the fact that he
has been convicted of those offenses has no bearing on the merits of the
present appeal.
9
The alleged victims contend in their amicus brief that ‘‘they were sub-
jected [by the defendant] to much more than oral sex.’’ No evidence as to
the nature of the contact between the defendant and the victims, however,
was presented to the trial court in connection with the motions for an
examination and testing filed pursuant to § 54-102a.
10
We directed the parties to address each of these two issues in supplemen-
tal briefs.
11
General Statutes § 54-102b provides in relevant part: ‘‘(a) Notwithstand-
ing any provision of the general statutes, except as provided in subsection
(b) of this section, a court entering a judgment of conviction or conviction
of a child as delinquent for a violation of section 53a-70b of the general
statutes, revision of 1958, revised to January 1, 2019, or section 53a-70, 53a-
70a, or 53a-71 or a violation of section 53-21, 53a-72a, 53a-72b or 53a-73a
involving a sexual act, shall, at the request of the victim of such crime,
order that the offender be tested for the presence of the etiologic agent for
acquired immune deficiency syndrome or human immunodeficiency virus
and the results be disclosed to the victim and the offender. The test shall
be performed by or at the direction of the Department of Correction or, in
the case of a child convicted as delinquent, at the direction of the Court
Support Services Division of the Judicial Department or the Department of
Children and Families, in consultation with the Department of Public Health.
‘‘(b) The provisions of sections 19a-581 to 19a-585, inclusive, and section
19a-590, except the requirement that the subject of an HIV-related test
provide informed consent prior to the performance of such test, shall apply
to a test ordered under this section. . . .’’
12
General Statutes § 19a-582 provides in relevant part: ‘‘(a) Except as
required pursuant to section 19a-586, a person who has provided general
consent as described in this section for the performance of medical proce-
dures and tests is not required to also sign or be presented with a specific
informed consent form relating to medical procedures or tests to determine
human immunodeficiency virus infection or antibodies to human immunode-
ficiency virus. General consent shall include instruction to the patient that:
(1) As part of the medical procedures or tests, the patient may be tested
for human immunodeficiency virus, and (2) such testing is voluntary and
that the patient can choose not to be tested for human immunodeficiency
virus or antibodies to human immunodeficiency virus. General consent that
includes HIV-related testing shall be obtained without undue inducement
or any element of compulsion, fraud, deceit, duress or other form of con-
straint or coercion. If a patient declines an HIV-related test, such decision
by the patient shall be documented in the medical record. The consent of
a parent or guardian shall not be a prerequisite to testing of a minor. The
laboratory shall report the test result to the person who orders the perfor-
mance of the test.
***
‘‘(d) The provisions of this section shall not apply to the performance of
an HIV-related test:
***
‘‘(8) Under a court order that is issued in compliance with the following
provisions: (A) No court of this state shall issue such order unless the court
finds a clear and imminent danger to the public health or the health of a
person and that the person has demonstrated a compelling need for the
HIV-related test result that cannot be accommodated by other means. In
assessing compelling need, the court shall weigh the need for a test result
against the privacy interests of the test subject and the public interest that
may be disserved by involuntary testing, (B) pleadings pertaining to the
request for an involuntary test shall substitute a pseudonym for the true
name of the subject to be tested. The disclosure to the parties of the subject’s
true name shall be communicated confidentially, in documents not filed
with the court, (C) before granting any such order, the court shall provide
the individual on whom a test result is being sought with notice and a
reasonable opportunity to participate in the proceeding if he or she is not
already a party, (D) court proceedings as to involuntary testing shall be
conducted in camera unless the subject of the test agrees to a hearing in
open court or unless the court determines that a public hearing is necessary
to the public interest and the proper administration of justice . . . .’’
13
Subsections (b) and (c) of § 19a-582, which pertain to persons adminis-
tering tests authorized under that section, are not relevant to this appeal.
14
The legislation that was ultimately enacted as Spec. Sess. P.A. 94-6, § 27,
was first introduced as Substitute House Bill No. 5790 during the regular
session of the General Assembly in 1994. Substitute House Bill No. 5790
was passed temporarily on the last day of the regular 1994 session. See 37
H.R. Proc., Pt. 21, 1994 Sess., p. 7684; see also Connecticut General Assembly,
Glossary—Legislative Terms and Definitions, available at http://www.cga.ct.
gov/asp/content/terms.asp (last visited July 13, 2021) (defining ‘‘pass tempo-
rarily’’ as ‘‘[t]o suspend consideration of a particular bill for a short time,
for example to await an amendment or the answer to a question’’). During
the May, 1994 special session of the General Assembly, legislation identical
to the temporarily passed Substitute House Bill No. 5790 was introduced
as an amendment to House Bill No. 6010, which the legislature ultimate
enacted. See 37 H.R. Proc., Pt. 25, May, 1994 Spec. Sess., p. 9013, remarks
of Representative Richard D. Tulisano (proposed legislation ‘‘follows in total
. . . a bill that passed this House in the last day of the [regular] session’’).
We refer to the debate on both Substitute House Bill No. 5790 and the
amendment to House Bill No. 6010 in our discussion of the legislative history
of Spec. Sess. P.A. 94-6, § 27.
15
‘‘It is a basic tenet of the criminal justice system that prosecutions are
undertaken and punishments are sought by the state on behalf of the citizens
of the state, and not on behalf of particular victims or complaining witnesses.
. . . A criminal prosecution is a public matter and not a contest between
the defendant and his victims, or their relatives. . . . It is axiomatic, there-
fore, that [t]he parties to a criminal action are the [state], in whose sovereign
name it is prosecuted, and the person accused . . . and not the crime
victim(s).’’ (Citations omitted; emphasis in original; internal quotation marks
omitted.) State v. Gault, 304 Conn. 330, 342–43, 39 A.3d 1105 (2012).
16
In agreeing with the defendant’s proposed construction of § 54-102a
(b), the concurrence acknowledges that the sole effect of interpreting the
provision in that manner would be to afford a victim in a criminal case
the opportunity to seek a testing order under § 19a-582 (d) (8)—with its
exceedingly stringent clear and imminent danger/compelling need require-
ment—in that criminal case rather than in a new or pending civil action.
See footnote 4 of the concurring opinion. Although, as we previously
explained, this construction is belied by the far broader and more ambitious
purpose of the provision—namely, to provide sexual assault victims in crimi-
nal cases with simple and straightforward means of determining whether
their alleged assailants have HIV—the concurrence makes no mention of
that purpose, which is clearly reflected in the relevant legislative history
and manifests the intent of the legislature to promote the strong pro victim
policy mandated by the federal government under the threat of loss of
certain federal funding. As we also explained, under the statutory construc-
tion advanced by the defendant and the concurrence, a victim seeking a
testing order for a convicted defendant under § 54-102b would still have to
satisfy the extremely strict conditions of § 19a-582 (d) (8), even after the
defendant has been found beyond a reasonable doubt to have sexually
assaulted the victim. It could hardly be more apparent that this construction
of §§ 54-102a (b) and 54-102b cannot be squared with the well-defined legisla-
tive policy underlying the enactment of those provisions.
Indeed, the thrust of the concurrence seems to be that § 54-102a operates
as an unwarranted curtailment of the rights of criminal defendants relative
to the protections afforded others who may find themselves the subject of
a request for a nonconsensual HIV testing order. The concurrence’s quarrel
in this regard is with the legislature, not with us, because § 54-102a represents
a legislative policy decision—prompted by the potential loss of federal
money—to make it appreciably easier for certain sexual assault victims to
obtain such an order.
Although § 54-102a certainly achieves that end, the concurrence claims
that the provision, as we construe it, truncates the rights of those criminal
defendants to whom it applies to a greater degree than it actually does.
More specifically, the concurrence suggests that our ‘‘holding . . . jettisons
the procedural safeguards contained in § 19a-582 (d) (8) (B) through (D).’’
However, a review of those provisions, which are designed to protect the
identity of a party who is subject to an HIV order, reveals that they generally
are not relevant to a request for such an order in a criminal case in which
the identity of the defendant and the nature of his or her alleged offenses
already are a matter of public record. The concurrence also contends that
our construction of § 54-102a (b) ‘‘leads to an inconsistency in the provision
of counseling services, which would be afforded to victims, but not to
criminal defendants who test positive for HIV.’’ In fact, the ‘‘counseling’’
services to which General Statutes § 54-102c refers are certain publicly
available ‘‘educational materials’’ and ‘‘information’’ obtainable through the
Department of Public Health, all of which a defendant, or his or her counsel,
may readily obtain upon request.
17
Thus, under the interpretation of § 54-102a (b) urged by the defendant,
the trial court would have discretion to refuse to order an HIV test, even
after finding that all of the requirements of § 19a-582 (d) (8) have been
met—that is, after finding that the defendant poses ‘‘a clear and imminent
danger to . . . the health’’ of the victim and that the victim ‘‘has demon-
strated a compelling need for the HIV-related test result that cannot be
accommodated by other means.’’ We see no reason why a court ever would
decline to issue such a testing order once it has found that these requirements
have been satisfied. If, though, the defendant’s proposed construction of
§ 54-102b is correct, the legislature intended to grant the court discretion
to decline to order a test in such circumstances because no such discretion
is granted under § 54-102a, which is applicable to the testing of convicted
defendants and requires the court to issue a testing order upon the request
of the victim. In contrast to the defendant’s interpretation, the two provisions
are entirely logical under the construction we adopt: if, as in the present
case, the criminal case is pending, then the court has discretion to order a
test, whereas the court must do so once the defendant has been found guilty.
18
We note that the concurrence claims that our reading of § 54-102a (b)
would lead to a bizarre and unworkable result in one respect, namely, that,
in certain circumstances, a victim would not be able to obtain the very test
results that he or she sought under that provision. Although we disagree
with this assertion for a number of reasons, it suffices to say that the court
has broad authority under § 54-102a (b) both to order testing of the defendant
upon the request of the victim and to order that the test results be disclosed
to the victim, and there is nothing in the statutory scheme limiting the
court’s discretion to determine how best to accomplish such disclosure in
light of the particular circumstances involved.
19
Three additional points bear emphasis. First, under the state’s construc-
tion of § 54-102a (b), the defendant’s interest in preventing the unwarranted
or inappropriate disclosure of privileged testing information is safeguarded.
See, e.g., General Statutes § 19a-583 (a) (subject to certain enumerated
exceptions, ‘‘[n]o person who obtains confidential HIV-related information
may disclose or be compelled to disclose such information’’); General Stat-
utes § 19a-583 (b) (‘‘[n]o person . . . to whom confidential HIV-related
information is disclosed may further disclose such information, except as
provided in this section and sections 19a-584 and 19a-585’’); General Statutes
§ 19a-585 (containing additional safeguards against undue dissemination of
HIV related test results or related information). Second, as we discuss in
part III of this opinion, article first, § 7, of the state constitution prohibits
a court from issuing an HIV testing order under § 54-102a (b) without first
finding that such an order would provide useful, practical information to a
victim that cannot reasonably be obtained by other means. Finally, as we
explained in part I of this opinion, the defendant has the right to immediate
appellate review of any order issued pursuant to § 54-102a (b). Thus, a
defendant has considerable protection with respect to a court’s exercise of
its discretion to order an HIV test under § 54-102a (b) and to the use and
dissemination of the results of any such test.
20
We recognize, of course, that, when possible, statutes are to be construed
to avoid constitutional infirmity. See, e.g., Mayer-Wittman v. Zoning Board
of Appeals, 333 Conn. 624, 638, 218 A.3d 37 (2019) Reliance on that principle
for purposes of the present case, however, is misplaced for several reasons.
First, although a constitutional gloss is necessary to preclude such an infir-
mity under our reading of § 54-102a (b); see part III of this opinion; the very
same tenet of construction that directs us to interpret a statute to avoid
placing it in constitutional jeopardy—so long as that interpretation is consis-
tent with legislative intent—also directs us to ‘‘search for a judicial gloss
[on the statute] . . . that will effect the legislature’s [intent] in a manner
consistent with constitutional safeguards.’’ (Internal quotation marks omit-
ted.) State v. DeCiccio, 315 Conn. 79, 149, 105 A.3d 165 (2014). Because it
is evident, for the reasons previously enumerated, that our construction of
§ 54-102a (b) is the only reasonable one in light of its text, its relationship
to other statutory provisions, and its clear purpose, such a gloss is both
necessary and fully consistent with our rules of statutory construction.
Furthermore, the canon ‘‘is a tool for choosing between competing plausi-
ble interpretations of a statutory text, resting on the reasonable presumption
that [the legislature] did not intend the alternative which raises serious
constitutional doubts. . . . The canon is thus a means of giving effect to
[legislative] intent, not of subverting it.’’ (Citations omitted; emphasis
added.) Clark v. Martinez, 543 U.S. 371, 381–82, 125 S. Ct. 716, 160 L. Ed.
2d 734 (2005). As we explained, the unmistakable intent behind § 54-102a was
to facilitate the examination or testing of criminal defendants for sexually
transmitted diseases or HIV, respectively, at the request of sexual assault
victims. Construing § 54-102a as the defendant asserts it should be con-
strued—that is, by reading § 19a-582 (d) (8) into it and thereby placing the
burden on the victim to satisfy the same stringent conditions that existed
prior to the enactment of § 54-102a—would not substantively advance the
interests of sexual assault victims in any way, let alone in the distinctly pro
victim manner intended by the legislature.
In addition, even if we were to interpret § 54-102a (b) to avoid the need
for a constitutional gloss on that statutory subsection, we still would have
to place the identical gloss on its companion subsection, § 54-102a (a),
pertaining to examination for sexually transmitted diseases. See part III of
this opinion. We see no legitimate basis for presuming that the legislature
was attentive to the need to avoid placing an interpretive gloss on § 54-102a
(b) but not on the closely related provisions of § 54-102a (a).
Finally, our refusal to engage in such a presumption finds support in the
fact that, when § 54-102a was enacted in 1994, there was no suggestion in case
law from this or any other jurisdiction that subjecting a criminal defendant
in a sexual assault case to an HIV testing order at the victim’s request was
constitutionally suspect. Indeed, because the impetus for the legislation was
the federal government itself, it is hardly likely that our legislature harbored
any concern that such a testing provision was of questionable constitutional-
ity. And even today, more than twenty-five years after the enactment of
§ 54-102a in this state and the enactment of virtually identical provisions in
many other states, we know of no other court that has found such a provision
to be unconstitutional or determined that an interpretive gloss was necessary
to avoid constitutional infirmity. In these circumstances, the tenet of statu-
tory construction on which the concurrence relies simply has no utility in
evaluating legislative intent.
21
We first address the defendant’s claim under the state constitution
because there is no clear and binding precedent on the issue of whether a
statute authorizing mandatory examinations for sexually transmitted dis-
eases and mandatory testing for HIV of individuals charged with certain
sexual offenses is reasonable under the fourth amendment in the absence
of a showing of probable cause to believe that testing is necessary to advance
the health interests of the victim or the public. See, e.g., State v. Kono, 324
Conn. 80, 123, 152 A.3d 1 (2016) (‘‘if the federal constitution does not clearly
and definitively resolve the issue in the defendant’s favor, we turn first to the
state constitution to ascertain whether its provisions entitle the defendant
to relief’’).
22
The defendant does not claim that a warrant would be required in a
proceeding under § 54-102a if the trial court were constitutionally required
to make a finding of probable cause to believe that an examination or testing
is necessary to protect the health interests of the victim. This court previously
has held, in the civil context, that an adversarial proceeding at which the
party seeking an order to conduct a search must prove probable cause is
an acceptable substitute for a warrant, in part because ‘‘there are no statutory
or regulatory provisions for the issuance of search warrants to facilitate
regulatory searches . . . .’’ (Internal quotation marks omitted.) Bozrah v.
Chmurynski, 303 Conn. 676, 694, 36 A.3d 210 (2012). Similarly, in the present
case, because the purpose of an order pursuant to § 54-102a is not to obtain
evidence for use at the criminal trial, a search warrant would not be an
appropriate mechanism to compel a defendant to provide a blood sample.
23
We note that the defendant does not claim that there is no special needs
exception to article first, § 7, of the state constitution. Accordingly, we
assume for purposes of this opinion that there is.
24
In his dissenting opinion in Von Raab, Justice Scalia distinguished the
case from Skinner, in which he had joined the majority, on the ground that,
in Skinner, ‘‘the demonstrated frequency of drug and alcohol use by the
targeted class of employees, and the demonstrated connection between such
use and grave harm, rendered the search a reasonable means of protecting
society.’’ National Treasury Employees Union v. Von Raab, supra, 489 U.S.
680 (Scalia, J., dissenting). In contrast, because ‘‘neither frequency of use
nor connection to harm [was] demonstrated or even likely’’ in Von Raab,
Justice Scalia would have concluded that the drug testing program was
unconstitutional. Id., 681 (Scalia, J., dissenting).
25
In his dissenting opinion in King, Justice Scalia contended that the DNA
testing procedure had nothing to do with identifying arrestees but was
intended to identify the source of the DNA of persons who had committed
unsolved crimes. See Maryland v. King, supra, 569 U.S. 470–76 (Scalia, J.,
dissenting). Accordingly, he concluded that the DNA testing procedure was
an unconstitutional suspicionless search. Id., 481 (Scalia, J., dissenting).
26
The discussion that follows addresses HIV testing rather than examina-
tions for sexually transmitted diseases because the case law appears to be
more developed with respect to the issue of HIV testing. As we explain
hereinafter, however, our reasoning and conclusion regarding the propriety
of HIV testing under the state constitution are also applicable to examina-
tions for sexually transmitted diseases.
27
See, e.g., Fosman v. State, 664 So. 2d 1163, 1164–67 (Fla. App. 1995)
(Florida statute requiring court to order HIV testing of defendant charged
with certain offenses was constitutional under fourth amendment); Adams v.
State, 269 Ga. 405, 405, 410, 498 S.E.2d 268 (1998) (Georgia statute authorizing
court to order HIV testing of defendants charged with certain offenses was
constitutional under fourth amendment); State in the Interest of J. G., 151
N.J. 565, 570, 588, 701 A.2d 1260 (1997) (New Jersey statute requiring juve-
niles charged with certain offenses to submit to HIV testing was constitu-
tional under fourth amendment and New Jersey constitution in cases in
which there had been possible transfer of bodily fluids); People v. Thomas,
139 Misc. 2d 1072, 1074–75, 529 N.Y.S.2d 429 (1988) (rejecting claim that
New York statute authorizing HIV testing of defendants charged with certain
crimes violated fourth amendment and granting request for testing order);
State v. Houey, 375 S.C. 106, 109–10, 113, 651 S.E.2d 314 (2007) (South
Carolina statute authorizing court to order HIV testing of defendants charged
with certain offenses was constitutional under South Carolina and federal
constitutions); see also Harris v. Thigpen, 941 F.2d 1495, 1512 (11th Cir.
1991) (Alabama statute requiring testing of inmates for HIV upon admission
to and within thirty days of release from prison did not violate constitution-
ally guaranteed privacy rights); Dunn v. White, 880 F.2d 1188, 1197 (10th
Cir. 1989) (nonconsensual testing of prisoner for HIV did not violate fourth
amendment), cert. denied, 493 U.S. 1059, 110 S. Ct. 871, 107 L. Ed. 2d 954(1990); State v. Superior Court, 187 Ariz. 411, 417, 930 P.2d 488 (App. 1996)
(Arizona statute allowing victim of delinquent act committed by juvenile
that would be sexual offense if committed by adult to request HIV testing
of juvenile was constitutional under fourth amendment), review denied,
Arizona Supreme Court, Docket No. CV-96-0498-PR (January 14, 1997); Love
v. Superior Court, 226 Cal. App. 3d 736, 746, 276 Cal. Rptr. 660 (1990)
(California statute requiring defendants convicted of certain sexual offenses
to undergo HIV testing was constitutional under fourth amendment); People
v. Adams, 149 Ill. 2d 331, 333, 351–52, 597 N.E.2d 574 (1992) (Illinois statute
requiring court to order HIV testing of defendants convicted of certain crimes
was constitutional under fourth amendment and Illinois constitution); People
v. C.S., 222 Ill. App. 3d 348, 350, 353, 583 N.E.2d 726 (1991) (Illinois statute
authorizing HIV testing of defendants convicted of certain drug parapherna-
lia offenses was constitutional under fourth amendment), appeal denied,146
Ill. 2d 636, 602 N.E.2d 461 (1992); People v. Cook, 143 App. Div. 2d 486, 487,
532 N.Y.S.2d 940 (court order requiring defendant who had been convicted
of first degree rape to undergo testing for presence of acquired immunodefi-
ciency syndrome (AIDS) upon request of victim was constitutional), appeal
denied, 73 N.Y.2d 786, 533 N.E.2d 676, 536 N.Y.S.2d 746 (1988); People v. J.
G., 171 Misc. 2d 440, 451, 655 N.Y.S.2d 783 (1996) (New York statute requiring
court to order HIV testing for defendants convicted of certain crimes was
constitutional under fourth amendment); State v. Handy, 191 Vt. 311, 324,
44 A.3d 776 (2012) (Vermont statute allowing victim of sex offense to obtain
court order for testing of convicted perpetrator for AIDS was constitutional);
In re Juveniles A, B, C, D, E, 121 Wn. 2d 80, 98, 847 P.2d 455 (1993)
(Washington statute mandating HIV testing for all defendants convicted of
certain offenses was constitutional under fourth amendment); cf. Walker v.
Sumner, 917 F.2d 382, 387–88 (9th Cir. 1990) (District Court improperly
granted defendants’ motion for summary judgment on plaintiff’s claim that
prison directive ordering mandatory HIV testing of all inmates was unconsti-
tutional when defendants failed to present evidence to establish purpose
of testing or that results would be used to further legitimate penological end).
28
We express no opinion as to whether the state may have a significant
interest in preventing the spread of HIV in prison populations that outweighs
the diminished expectation of privacy of convicted defendants. See, e.g.,
Dunn v. White, supra, 880 F.2d 1195 (‘‘[t]he prison’s interest in responding
to the threat of AIDS, or any contagious disease occurring in prison, is
obviously strong’’); Harris v. Thigpen, 727 F. Supp. 1564, 1572 (M.D. Ala.
1990) (‘‘the [s]tate’s interest in preventing the spread of [AIDS] among prison
inmates and prison officials . . . amounts to a controlling [s]tate interest’’),
vacated in part on other grounds, 941 F.2d 1495 (11th Cir. 1991); People v.
Adams, supra, 149 Ill. 2d 346 (‘‘the purpose of the HIV testing statute [was]
to protect public health by preventing the spread of AIDS among members
of the community’’); In re Juveniles A, B, C, D, E, 121 Wn. 2d 80, 94, 847
P.2d 455 (1993) (‘‘the [s]tate has a compelling interest in combating the
spread of AIDS’’ by convicted defendant).
29
See Johnetta J. v. Municipal Court, supra, 218 Cal. App. 3d 1280–81
(‘‘The experts suggest that a bitten officer would be well advised to have
a blood test for clearer information, but HIV antibodies generally would
not develop for three to six months after the bite. [The HIV testing statute]
provides a prompt mechanism to obtain some information pertinent to the
officer’s health, and therefore to the governmental special need.’’ (Emphasis
added.)); Adams v. State, 269 Ga. 405, 409, 498 S.E.2d 268 (1998) (same).
Despite recognizing the time limitations on the usefulness of testing defen-
dants for HIV, the courts in both Johnetta J. and Adams found the HIV
testing statutes under review to be constitutional without any limitation on
their application. See Johnetta J. v. Municipal Court, supra, 1285; Adams
v. State, supra, 409–10.
A number of courts that have rejected constitutional challenges to statutes
requiring HIV testing of defendants who have been convicted of certain
crimes have also relied on the court’s statement in Johnetta J. that HIV
testing of defendants can be medically useful and can provide psychological
benefits to victims; see Johnetta J. v. Municipal Court, supra, 218 Cal. App.
3d 1280–81; apparently without recognizing that that observation pertained
to the period in which testing the victim would not yield useful results. See
People v. J. G., 171 Misc. 2d 440, 450, 655 N.Y.S.2d 783 (1996); State v.
Handy, 191 Vt. 311, 324, 44 A.3d 776 (2012); In re Juveniles A, B, C, D, E,
121 Wn. 2d 80, 93–95, 847 P.2d 455 (1993).
30
We note that, in Government of the Virgin Islands v. Roberts, 756 F.
Supp. 898 (D.V.I. 1991), the court noted that, ‘‘[f]or up to a year after the
attack and perhaps longer . . . a rape victim cannot conclude from her
own negative HIV test results that her assailant did not expose her to the
virus or that she is not infected and therefore capable of transmitting HIV
to others.’’ Id., 903. The court concluded from this fact that ‘‘there is consider-
able medical utility in examining the blood of the putative source of HIV
infection, even though the results are not dispositive.’’ (Internal quotation
marks omitted.) Id. Accordingly, the court found the court order for HIV
testing at issue to be constitutional. Id., 904. It bears emphasis, however,
that the assault in Roberts took place on October 29, 1990, and the testing
order was issued on January 18, 1991; id., 899, 904; well within the period
that testing of the defendant could provide results useful to the victim.
31
Under the federal Drug Control and System Improvement Formula Grant
Program, the director of the federal Bureau of Justice Assistance in the
United States Department of Justice was ‘‘authorized to make grants to
states to enable them to enforce state and local laws that establish offenses
similar to those in the Controlled Substances Act (21 U.S.C. § 801 et seq.)
and to improve how the criminal justice system functions with respect to
violent crime and serious offenders.’’ Office of Legislative Research, Bill
Analysis, Substitute House Bill No. 5790, 1994 Sess. The director was author-
ized to deny participating states 10 percent of their authorized funding if
they did not enact laws authorizing the testing of defendants convicted of
certain sexual offenses to undergo HIV testing. Id.32
We recognize, of course, that it has been more than four years since
the offending sexual contact occurred and, therefore, that it is highly unlikely
that the victims can demonstrate that, at this late date, an order under § 54-
102a (b) would result in the discovery of useful, practical information that
they could not reasonably obtain by self-examination or testing. We neverthe-
less remand the case for a new hearing because of the possibility, however
remote, of circumstances, unknown to us, that might justify such an order.
33
We note that when, as in the present case, we have determined that a
defendant is entitled to protection under the state constitution, we ordinarily
would have no need to address any parallel claim raised under the federal
constitution. In the present case, however, the relief that we have afforded
the defendant under the state constitution is not the full relief that he has
sought under either the state or federal constitution. This is so because the
standard that the defendant claims is applicable to an order issued pursuant
to § 54-102a is considerably more demanding than the standard that we have
concluded is required under the state constitution. Consequently, although
highly unlikely, it is at least theoretically possible that, for purposes of
§ 54-102a, the defendant is entitled to greater protection under the federal
constitution than the protection afforded under the state constitution. It is
clear, from our review of the relevant federal precedent, however, that,
whatever the defendant’s rights may be under the fourth amendment, in no
event are they greater than his rights under the state constitution.