The California Court of Appeal for the Fifth Appellate District reversed and remanded a trial court’s decision to impose HIV testing for a man who pleaded no contest to one count of lewd and lascivious conduct with a child under the age of 14. Under state law, persons convicted of certain sexual offenses, such as rape, must submit to HIV testing. For other offenses, including the one at issue in this case, HIV testing can be imposed only if, “there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.” Rocha appealed because the state presented no evidence for a finding of probable cause at trial.
Under Supreme Court of California precedent, the appellate court must look to the record for such evidence and, “in the absence of sufficient evidence in the record, the order is fatally compromised.” Although the Court of Appeals found no such evidence in the record, it nevertheless remanded to allow the prosecution to provide additional evidence to establish probable cause instead of simply reversing the trial court’s decision. The court cited the “significant public policy considerations at issue,” as well as the fact that the defendant had not objected to the court’s order below, so the prosecution had no notice that additional evidence was needed.
The Court did not, however, explain how the significant public policy considerations justify breaking precedent and violating Rocha’s privacy rights when the alleged offense only involved digital-vaginal touching or, at most, penetration, which are not routes of HIV transmission. This decision is particularly significant because the recent HIV modernization bill, California SB 239, leaves this section of the statute intact.