Self-incrimination, partner notification, and the criminal law: Negatives for the CDC's "prevention for positives" initiative

AIDS and Public Policy Journal

Volumn 19, Issue 1-2, 2004, Pages 54-66

  Webber, David W ^a  

^a AIDS Law Project of Pennsylvania   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; COUNSELING; CRIME; CRIMINAL LAW; HEALTH CARE PERSONNEL; HUMAN; HUMAN IMMUNODEFICIENCY VIRUS INFECTION; INFECTION PREVENTION; LAW ENFORCEMENT; MEDICAL INFORMATION; MEDICAL SOCIETY; POLICY; RISK ASSESSMENT; SEXUALITY; VIRUS TRANSMISSION;

EID: 13944265913     PISSN: 08873852     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (75)

1. CDC, "Advancing HIV Prevention: New Strategies for a Changing Epidemic-United States, 2003," Morbidity and Mortality Weekly Report 52, no. 15 (2003): 329-32.
2. N.Y. Comp. Codes R. & Regs. tit. 10, § 63.4(b) (West 2001) www.health.state.ny.us/nysdoh/rfa/hiv/full63.htm (requiring physicians to notify known contacts, including spouses, of patients diagnosed with HIV and to report to health commissioner the identity of known contacts for partner notification purposes).
3. A.M.J. Wensing et al., "Analysis from More than 1600 Newly Diagnosed Patients with HIV from 17 European Countries Shows that 10% of the Patients Carry Primary Drug Resistance: The CATCH-Study," (abstract of the International AIDS Society www.iasociety.org/abstract/show.asp?abstract_id= 11112).
4. D.H. Ciccarone et al., "Sex Without Disclosure of Positive HIV Serostatus in a US Probability Sample of Persons Receiving Medical Care for HIV Infection," American Journal of Public Health 93, no. 6 (2003): 949-54 (finding 13 percent of serodiscordant partnerships involved unprotected anal or vaginal sex without disclosure).
5. CDC, "Incorporating HIV Prevention into the Medical Care of Persons Living with HIV," Morbidity and Mortality Weekly Report 52, no. RR-12 (2003): 1-24.
6. See note 5 above, p. 15.
7. P.J. Kissinger et al., "Partner Notification for HIV and Syphilis: Effects on Sexual Behaviors and Relationship Stability," Sexually Transmitted Diseases (January 2003); 75-82.
8. See note 7 above, p. 81.
9. R. Doughty, "The Confidentiality of HIV-Related Information: Responding to the Resurgence of Aggressive Public Health Interventions in the AIDS Epidemic," California Law Review 82 (1994); 111-84, pp. 167-75.
10. C. Kightlinger, "Privacy vs. Protection: Lack of HIV Disclosure Places Some at Risk," Indianapolis Star, 17 July 2003.
11. B. Denizet-Lewis, "Double Lives on the Down Low," New York Times Magazine, 3 August 2003.
12. E. Wellington, "A Coming Out," Philadelphia Inquirer, 15 July 2003.
13. J. Tuohy and D. Penner, "Privacy Law Hurt Plasma Case," Indianapolis Star, 19 July 2003 (quoting prosecutor's comment that the delay allegedly caused by the HIV confidentiality law was "ridiculous" and that "privacy concerns may have put the public at risk").
14. J. VanDerbeken, "Ex-S.F. Official Jailed on HIV Charge," San Francisco Chronicle, 18 September 2003.
15. S. Russell, "Shift in AIDS Prevention Strategy: Emphasis Now on Accountability of Those Infected," San Francisco Chronicle, 21 September 2003.
16. J. Van Derbeken, "HIV Transmission Case Tossed Out," San Francisco Chronicle, 10 December 2003 (referring to prosecutors' lament that "the state Legislature set the bar high on the law so that someone could not be prosecuted simply for withholding his or her HIV status from a partner").
17. H. Markel, "HIV Secrecy Is Proving Deadly," New York Times, 25 November 2003.
18. R. Klitzman and R. Bayer, Mortal Secrets: Truth and Lies in the Age of AIDS (Baltimore, Md.: Johns Hopkins University Press, 2003).
19. Z. Lazzarini et al., "Evaluating the Impact of Criminal Laws on HIV Risk Behavior," Journal of Law, Medicine & Ethics 30 (2002): 239-53; see also S.J. Bray, "Criminal Prosecutions for HIV Exposure: Overview and Analysis," Yale University Center for Interdisciplinary Research on AIDS 3, no. 1 (2003) (available from HIV Criminal Law Project, www.HIV criminallaw.org).
20. Z. Lazzarini et al., "Evaluating the Impact of Criminal Laws on HIV Risk Behavior," Journal of Law, Medicine & Ethics 30 (2002): 239-53; see also S.J. Bray, "Criminal Prosecutions for HIV Exposure: Overview and Analysis," Yale University Center for Interdisciplinary Research on AIDS 3, no. 1 (2003) (available from HIV Criminal Law Project, www.HIV.criminallaw.org) .
21. HIV Criminal Law Project, www.HIV.criminallaw.org.
22. 42 U.S.C. § 300ff-47, repealed by Ryan White CARE Act Amendments of 2000, Pub. L. No. 106-345, § 301(a), 2000 U.S.C.C.A.N. (114 Stat.) 1319, 1345.
23. 45 C.F.R. § 164.512(b)(1)(iv) (2003).
24. 42 U.S.C. § 300ff-27a.
25. 410 Ill. Comp. Stat. Ann. 305/9(a) (West 1997 & Supp. 2004) (authorizing physician disclosure to spouse if spouse is not otherwise informed); N.Y. Pub. Health Law §§ 2780, 2782 (West 2002) (authorizing physician disclosure to spouse); Tex. Health & Safety Code Ann. § 81.103(7) (West 2001) (same).
26. 410 Ill. Comp. Stat. Ann. 305/9(a) (West 1997 & Supp. 2004) (authorizing physician disclosure to spouse if spouse is not otherwise informed); N.Y. Pub. Health Law §§ 2780, 2782 (West 2002) (authorizing physician disclosure to spouse); Tex. Health & Safety Code Ann. § 81.103(7) (West 2001) (same).
27. 410 Ill. Comp. Stat. Ann. 305/9(a) (West 1997 & Supp. 2004) (authorizing physician disclosure to spouse if spouse is not otherwise informed); N.Y. Pub. Health Law §§ 2780, 2782 (West 2002) (authorizing physician disclosure to spouse); Tex. Health & Safety Code Ann. § 81.103(7) (West 2001) (same).
28. 38 U.S.C. § 7332(f).
29. E.g., Cal. Health & Safety Code Ann. § 121015 (West 1996) (exception to confidentiality for physicians' disclosure of HIV test result to person reasonably believed to be the sex partner of the patient); N.Y. Pub. Health Law §§ 2780, 2782 (West 2002) (authorizing physician's disclosure to spouse, or sex or needle-sharing partner); S.C. Code Ann. § 44-29-146 (physicians and state agencies exempt from liability for disclosure to spouse or other known contact).
30. E.g., Cal. Health & Safety Code Ann. § 121015 (West 1996) (exception to confidentiality for physicians' disclosure of HIV test result to person reasonably believed to be the sex partner of the patient); N.Y. Pub. Health Law §§ 2780, 2782 (West 2002) (authorizing physician's disclosure to spouse, or sex or needle-sharing partner); S.C. Code Ann. § 44-29-146 (physicians and state agencies exempt from liability for disclosure to spouse or other known contact).
31. E.g., Cal. Health & Safety Code Ann. § 121015 (West 1996) (exception to confidentiality for physicians' disclosure of HIV test result to person reasonably believed to be the sex partner of the patient); N.Y. Pub. Health Law §§ 2780, 2782 (West 2002) (authorizing physician's disclosure to spouse, or sex or needle-sharing partner); S.C. Code Ann. § 44-29-146 (physicians and state agencies exempt from liability for disclosure to spouse or other known contact).
32. 674 A.2d 498 (B.C. 1996).
33. 896 P.2d 196 (Alaska 1995).
34. Restatement (Second) of Torts § 595, Comment g (1977) (general privilege to report that "another intends to ... commit some ... serious crime against a third person"); ibid. § 652G (privilege applies to invasion of privacy tort). See also Bartnicki v. Vopper, 532 U.S. 514, 539 (2001) (Souter, J., concurring) ("Where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety").
35. Restatement (Second) of Torts § 595, Comment g (1977) (general privilege to report that "another intends to ... commit some ... serious crime against a third person"); ibid. § 652G (privilege applies to invasion of privacy tort). See also Bartnicki v. Vopper, 532 U.S. 514, 539 (2001) (Souter, J., concurring) ("Where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety").
36. Restatement (Second) of Torts § 595, Comment g (1977) (general privilege to report that "another intends to ... commit some ... serious crime against a third person"); ibid. § 652G (privilege applies to invasion of privacy tort). See also Bartnicki v. Vopper, 532 U.S. 514, 539 (2001) (Souter, J., concurring) ("Where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety").
37. See note 5 above, p. 16.
38. "Man Found Guilty on 4th HIV Count," Iowa City Press-Citizen, 13 April 2004.
39. "Woman Who Contracted HIV Speaks," 13 WHO-TV (Des Moines, Iowa), 17 May 2004, www.whotv.com/global/story.asp?s=1874442.
40. Z. Lazzarini et al., "Evaluating the Impact of Criminal Laws on HIV Risk Behavior," Journal of Law, Medicine & Ethics 30 (2002): 239-253 (finding no reported cases involving disclosure of public health data to law enforcement officials).
41. 832 P.2d 109 (Wash. Ct. App. 1992).
42. Department of Health and Environmental Control v. Doe, 565 S.E.2d 293 (S.C. 2002).
43. 45 C.F.R. § 164.512(f) (2003).
44. 990 S.W.2d 572 (Ark. Ct. App. 1999).
45. E.g., N.J. Rev. Stat. § 26:5C-9(a), (b) (West 1996) ("criminal investigation" exception to HIV confidentiality).
46. State v. Mahan, 971 S.W.2d 307 (Mo. 1998).
47. E.g., Va. Code Ann. § 32.1-36.1 (Matthew Bender 2004) (allowing access by "court order").
48. E.g., Cal. Health & Safety Code Ann. § 120292(a)(2) (West Supp. 2004) (judicial order required for disclosure of confidential HIV information in criminal proceeding); Fla. Stat. Ann. § 381.004(3)(e) (West Supp. 2004) ("compelling need" required for judicial authorization of disclosure of or access to confidential HIV information); N.Y. Pub. Health Law § 2785 (West 2002) (same); Pa. Stat. Ann. tit. 35, § 7608 (West 2003) (same).
49. E.g., Cal. Health & Safety Code Ann. § 120292(a)(2) (West Supp. 2004) (judicial order required for disclosure of confidential HIV information in criminal proceeding); Fla. Stat. Ann. § 381.004(3)(e) (West Supp. 2004) ("compelling need" required for judicial authorization of disclosure of or access to confidential HIV information); N.Y. Pub. Health Law § 2785 (West 2002) (same); Pa. Stat. Ann. tit. 35, § 7608 (West 2003) (same).
50. E.g., Cal. Health & Safety Code Ann. § 120292(a)(2) (West Supp. 2004) (judicial order required for disclosure of confidential HIV information in criminal proceeding); Fla. Stat. Ann. § 381.004(3)(e) (West Supp. 2004) ("compelling need" required for judicial authorization of disclosure of or access to confidential HIV information); N.Y. Pub. Health Law § 2785 (West 2002) (same); Pa. Stat. Ann. tit. 35, § 7608 (West 2003) (same).
51. E.g., Cal. Health & Safety Code Ann. § 120292(a)(2) (West Supp. 2004) (judicial order required for disclosure of confidential HIV information in criminal proceeding); Fla. Stat. Ann. § 381.004(3)(e) (West Supp. 2004) ("compelling need" required for judicial authorization of disclosure of or access to confidential HIV information); N.Y. Pub. Health Law § 2785 (West 2002) (same); Pa. Stat. Ann. tit. 35, § 7608 (West 2003) (same).
52. Department of Health and Environmental Control v. Doe, 565 S.E.2d 293 (S.C. 2002) (public health agency conceded "compelling need" for its disclosure of HIV information for law enforcement purpose); In re Gribetz, 605 N.Y.S.2d 834 (Rockland County Ct. 1994) (disclosure of defendant's HIV information to provide evidence of crime); People v. Anonymous, 582 N.Y.S.2d 350 (Monroe County Ct. 1992) (same); see also Community Healthcare Centerone, Inc. v. Florida, 852 So. 2d 322 (Fla. Dist. Ct. App. 2003) (allowing prosecutor's subpoena for HIV patient records in Medicaid fraud investigation on basis that criminal investigation is a "compelling need" justifying invasion of patients' privacy rights), appeal denied, 868 So. 2d 522 (Fla. 2004).
53. Department of Health and Environmental Control v. Doe, 565 S.E.2d 293 (S.C. 2002) (public health agency conceded "compelling need" for its disclosure of HIV information for law enforcement purpose); In re Gribetz, 605 N.Y.S.2d 834 (Rockland County Ct. 1994) (disclosure of defendant's HIV information to provide evidence of crime); People v. Anonymous, 582 N.Y.S.2d 350 (Monroe County Ct. 1992) (same); see also Community Healthcare Centerone, Inc. v. Florida, 852 So. 2d 322 (Fla. Dist. Ct. App. 2003) (allowing prosecutor's subpoena for HIV patient records in Medicaid fraud investigation on basis that criminal investigation is a "compelling need" justifying invasion of patients' privacy rights), appeal denied, 868 So. 2d 522 (Fla. 2004).
54. Department of Health and Environmental Control v. Doe, 565 S.E.2d 293 (S.C. 2002) (public health agency conceded "compelling need" for its disclosure of HIV information for law enforcement purpose); In re Gribetz, 605 N.Y.S.2d 834 (Rockland County Ct. 1994) (disclosure of defendant's HIV information to provide evidence of crime); People v. Anonymous, 582 N.Y.S.2d 350 (Monroe County Ct. 1992) (same); see also Community Healthcare Centerone, Inc. v. Florida, 852 So. 2d 322 (Fla. Dist. Ct. App. 2003) (allowing prosecutor's subpoena for HIV patient records in Medicaid fraud investigation on basis that criminal investigation is a "compelling need" justifying invasion of patients' privacy rights), appeal denied, 868 So. 2d 522 (Fla. 2004).
55. Department of Health and Environmental Control v. Doe, 565 S.E.2d 293 (S.C. 2002) (public health agency conceded "compelling need" for its disclosure of HIV information for law enforcement purpose); In re Gribetz, 605 N.Y.S.2d 834 (Rockland County Ct. 1994) (disclosure of defendant's HIV information to provide evidence of crime); People v. Anonymous, 582 N.Y.S.2d 350 (Monroe County Ct. 1992) (same); see also Community Healthcare Centerone, Inc. v. Florida, 852 So. 2d 322 (Fla. Dist. Ct. App. 2003) (allowing prosecutor's subpoena for HIV patient records in Medicaid fraud investigation on basis that criminal investigation is a "compelling need" justifying invasion of patients' privacy rights), appeal denied, 868 So. 2d 522 (Fla. 2004).
56. 525 N.Y.S.2d 752 (Suffolk County 1988).
57. 796 N.E.2d 12 (Ohio Ct. App. 2003).
58. 606 A.2d 1160 (N.J. Super. Ct. 1992).
59. 532 U.S. 67, 78 (2001) ("The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.").
60. The reliance on Ferguson v. City of Charleston by Lazzarini et al., see note 33 above, for the principle that "information gathered for health purposes should not be used by law enforcement" is therefore misplaced.
61. In re Gribetz, 605 N.Y.S.2d 834 (Rockland County Ct. 1994) (disclosure of defendant's HIV information to provide evidence of crime);
62. People v. Anonymous, 582 N.Y.S.2d 350 (Monroe County Ct. 1992) (same).
63. See, e.g., 28 C.F.R. §§ 59.1-59.6 (2004) (self-imposed restrictions on issuance of federal search warrants for professional records that implicate the privacy rights of third parties).
64. See, e.g., Limbaugh v. Florida, No. 4D03-4973, 2004 WL 2238978, 2004 Fla. App. LEXIS 14653 (Fla. Bist. Ct. App. Oct. 6, 2004) (state's seizure of medical records pursuant to validly issued search warrant is not limited by state constitutional right to privacy).
65. United States v. Hubbell, 530 U.S. 27 (2000).
66. Braswell v. United States, 487 U.S. 99 (1988); Rogers v. United States, 340 U.S. 367 (1951).
67. Braswell v. United States, 487 U.S. 99 (1988); Rogers v. United States, 340 U.S. 367 (1951).
68. See Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004) (discussing Illinois medical record privilege law, asserted by hospital on behalf of its patients, in context of a federal government subpoena for hospital records in civil litigation).
69. Tex. Health & Safety Code Ann. § 81.051(c) (West 2001).
70. New York State Department of Health, "HIV Reporting and Partner Notification: What You Need to Know About the Law," www.health.state.ny.us/ nysdoh.hivaids/hivpartner/qanda.htm.
71. D.L McColgin, Criminal Law, in AIDS and the Law § 7.1, ed. D.W. Webber (New York: Wiley, 1997), 264-65.
72. J.G. Hodge and L.O. Gostin, "Handling Cases of Willful Exposure Through HIV Partner Counseling and Referral Services," Women's Rights Law Reporter 23, no. 1 (2001): 45-62.
73. Although it is not relevant to the thesis of this article, it should be noted that taking the position that persons with HIV infection have a moral and ethical duty to avoid transmitting HIV to others does not compel the conclusion that they should be criminally prosecuted for doing so. For an detailed review of this issue, see L.E. Wolf and R. Vezina, "Crime and Punishment: Is There a Role for Criminal Law in HIV Prevention Policy?" Whittier Law Review 25 (2004): 821-86.
74. This grant of immunity is more limited than "transactional" immunity, which provides complete immunity for the offense to which the patient's information relates. See Kastigar v. United States, 406 U.S. 441 (1972).
75. For an example of the CDC's role in recommending law reforms at the state level, see Model State Public Health Privacy Law, http://www.critpath.org/ msphpa/privacy.htm.