State v. Bemer ( 2021 )

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STATE v. BEMER—CONCURRENCE
McDONALD, J., with whom D’AURIA, J., joins, con-
curring in the judgment. I agree with the majority that
the trial court’s order is an appealable final judgment.
I also agree with the majority that the trial court’s judg-
ment granting the motions of the state and the victims
that the defendant, Bruce John Bemer, be required to
submit to human immunodeficiency virus (HIV) testing
pursuant to General Statutes § 54-102a (b) and an exam-
ination for sexually transmitted diseases pursuant to
§ 54-102a (a)1 must be reversed, and the case remanded
to the trial court for further proceedings. I write sepa-
rately, however, because I strongly disagree with the
majority’s conclusion that court-ordered HIV testing
under § 54-102a (b) does not incorporate the rigorous
standard and significant procedural safeguards that the
legislature adopted and codified in General Statutes
§ 19a-582 (d) (8). Before any individual—even a crimi-
nal defendant—is forced by the state, against his will
and without his consent, to submit to medical testing
for HIV, both that high standard and those important
safeguards must be adhered to in order for the testing
to be lawful.
In my view, when the court was requested, before
trial or conviction, to deploy the force of law against
the defendant and to order him to be subjected to HIV
testing, § 19a-582 (d) (8) required the court, among
other things, to find that there is ‘‘a clear and imminent
danger to the public health or the health of a person
and that the person [requesting the testing] has demon-
strated a compelling need for the HIV-related test result
that cannot be accommodated by other means.’’ Gen-
eral Statutes § 19a-582 (d) (8) (A). Because I conclude
that well known principles of statutory construction
reveal that the standard set forth in § 19a-582 (d) (8)
is incorporated into court-ordered HIV testing under
§ 54-102a (b)—and because it is well settled that this
court has a duty to construe statutes, whenever possi-
ble, to avoid the type of constitutional infirmities the
majority has discerned in this case—I respectfully con-
cur.
I agree with the majority’s recitation of the facts.
Accordingly, I turn to the defendant’s claim that the
trial court abused its discretion in ordering HIV testing
pursuant to § 54-102a (b)2 because the court did not
adhere to the requirements of § 19a-5823 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.’’ General Statutes § 19a-582 (d) (8) (A).
As the defendant points out, the state does not claim
that the trial court made any such finding. Rather, the
state contends that § 54-102a (b) does not incorporate
the standard set forth in § 19a-582 (d) (8) but, instead,
broadly authorizes the trial court to order HIV testing
when, as here, the defendant has been charged with
committing an offense enumerated in § 54-102a (b) that
involved a sexual act.
As the majority correctly notes, whether § 54-102a
(b) incorporates the standard contained in § 19a-582
(d) (8) is a question of statutory interpretation over
which our review is plenary. See part II of the majority
opinion; see also, e.g., Smith v. Rudolph, 330 Conn. 138,
142–43, 191 A.3d 992 (2018). This court reviews §§ 54-
102a (b) and 19a-582 (d) (8) in accordance with General
Statutes § 1-2z and our familiar principles of statutory
construction. See, e.g., Smith v. Rudolph, supra, 143. I
am mindful that ‘‘the legislature is always presumed to
have created a harmonious and consistent body of law
. . . . [T]his tenet of statutory construction . . .
requires us to read statutes together when they relate
to the same subject matter . . . . Accordingly, [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 coherency of our con-
struction.’’ (Internal quotation marks omitted.) Hart-
ford/Windsor Healthcare Properties, LLC v. Hartford,
298 Conn. 191, 198, 3 A.3d 56 (2010).
I begin with § 54-102a (b), which provides in relevant
part that, ‘‘[n]otwithstanding the provisions of section
19a-582,’’ the trial court may, in specified criminal cases,
including this one, order HIV testing of the defendant
before the disposition of the case. Such testing is also
subject to the following condition: ‘‘The provisions of
sections 19a-581 to 19a-585, inclusive, 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.’’ (Emphasis
added.) General Statutes § 54-102a (b).
Subsection (a) of § 19a-582 sets forth a general rule
requiring an individual’s informed consent before any
HIV related testing. Subsection (d), however, provides
several circumstances under which an individual’s
informed consent is not required before HIV related
testing is performed.4 Relevant to this case, subdivision
(8) of § 19a-582 (d) allows another person to request
that a court order involuntary testing of an individual
when it has found 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.’’ General Statutes
§ 19a-582 (d) (8) (A). Subdivision (8) also provides guid-
ance to the trial court in assessing whether there is a
compelling need for the HIV test result. Namely, it
directs that, ‘‘[i]n 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 . . . .’’ General
Statutes § 19a-582 (d) (8) (A).
As the majority explains, the issue in this case ‘‘stems
from the parties’ dispute over the proper reading of the
‘[n]otwithstanding 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 an 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 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 . . . .’
General Statutes § 54-102a (b).’’ (Emphasis added.) Part
II of the majority opinion. The defendant contends that
the only way to reconcile these two provisions is to
construe the ‘‘[n]otwithstanding’’ clause to apply only
to the informed consent requirement of subsection (a)
of § 19a-582 and not to the various exceptions pursuant
to which informed consent is not needed, as set forth in
subsection (d) of § 19a-582. Thus, the defendant argues,
subdivision (8) of § 19a-582 (d), which allows testing
without consent only after the court finds a clear and
imminent danger and a compelling need for the testing,
is not excepted from the purview of § 54-102a (b).
Therefore, in the defendant’s view, the 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 disagrees and contends that, because both
the first and third sentences of § 54-102a (b) explicitly
or implicitly provide that § 19a-582 does not apply to
orders issued pursuant to § 54-102a (b), the trial court
was not required to adhere to the standard set forth in
§ 19a-582 (d) (8) prior to issuing its order.
I agree with the defendant that, when the three sen-
tences that make up § 54-102a (b) are read together;
see Historic District Commission v. Hall, 282 Conn.
672, 684, 923 A.2d 726 (2007) (‘‘[l]egislative intent is not
to be found in an isolated sentence; the whole statute
must be considered’’ (internal quotation marks omit-
ted)); the ‘‘[n]otwithstanding’’ language in § 54-102a (b)
is properly understood to apply only to those aspects
of § 19a-582 that would require the defendant to give
his informed consent and any provision that would limit
or prohibit the disclosure of the test results to the vic-
tims. All other aspects of § 19a-582, including the stan-
dard set forth in subsection (d) (8), are still applicable.
See General Statutes § 54-102a (b) (‘‘[t]he provisions of
sections 19a-581 to 19a-585, inclusive . . . shall
apply to a test ordered under this subsection’’ (empha-
sis added)). This is consistent with our well settled
principle of statutory construction that ‘‘specific terms
in a statute covering a given subject matter will prevail
over the more general language of the same or another
statute that otherwise might be controlling.’’ (Internal
quotation marks omitted.) Branford v. Santa Barbara,
294 Conn. 803, 813, 988 A.2d 221 (2010). Here, the first
sentence of § 54-102a (b) generally provides that, ‘‘[n]ot-
withstanding the provisions of section 19a-582,’’ the
court may order testing. The final sentence of that statu-
tory provision, however, clearly specifies that it is only
those provisions requiring the defendant’s informed
consent or limiting disclosure that are excepted from
the statute. Because § 19a-582 (d) (8) provides for court-
ordered testing without the defendant’s consent and
does not limit the disclosure of test results to victims,
it is not excepted from § 54-102a (b).
Construing the ‘‘[n]otwithstanding the provisions of
section 19a-582’’ language in the first sentence of § 54-
102a (b) to apply to the entirety of § 19a-582, as the
majority does, denudes the last sentence of § 54-102a
(b), which provides in relevant part that ‘‘sections 19a-
581 to 19a-585, inclusive . . . shall apply,’’ of any
meaning. (Emphasis added.) As discussed, the vitality
of those statutory provisions, including § 19a-582, is
limited only insofar as any provision within the range
of those statutes requires informed consent or limits
the disclosure of the test results to the victim. Nothing
in § 54-102a (b) excises the imminent danger and com-
pelling need statutory standard contained in § 19a-582
(d) (8). Moreover, of the five statutes specifically incor-
porated by reference in § 54-102a (b), which span
approximately ten pages of our General Statutes, only
§ 19a-582—nay, one subsection of § 19a-582—deals
with consent.5 Because the legislature included § 19a-
582 in the list of applicable statutes, it cannot be entirely
read out of § 54-102a (b), as the majority concludes.
Cf. Lopa v. Brinker International, Inc., 296 Conn. 426,
433, 994 A.2d 1265 (2010) (‘‘[I]n construing statutes, we
presume that there is a purpose behind every sentence,
clause, or phrase used in an act and that no part of a
statute is superfluous. . . . Because [e]very word and
phrase [of a statute] is presumed to have meaning . . .
[a statute] must be construed, if possible, such that no
clause, sentence or word shall be superfluous, void or
insignificant.’’ (Internal quotation marks omitted.)).6
When the applicable statutory provisions are consid-
ered together, it is entirely consistent that § 54-102a (b)
would provide for court-ordered HIV testing in criminal
cases without the defendant’s consent provided the
court follows the standard and requirements set forth
in § 19a-582 (d) (8). Put differently, § 19a-582 (d) (8)
supplements and completes § 54-102a (b) by providing
a legislatively considered and approved standard that
must be met before a court may order a criminal defen-
dant to involuntarily submit to HIV testing under § 54-
102a (b). Without it, there would be no standard at
all. We ought to hesitate, at some length, before we
conclude that the legislature intentionally adopted a
strict and rigorous standard for nonconsensual HIV test-
ing that would apply in a civil, sexual assault action
brought by a victim against a defendant but nevertheless
chose to provide no standard at all for the exact same
test in a criminal prosecution for the exact same sexual
assault. Because §§ 54-102a (b) and 19a-582 (d) (8) can
be reconciled with both statutes being given effect, we
have an obligation to do so. Cf. Rainforest Cafe, Inc.
v. Dept. of Revenue Services, 293 Conn. 363, 377–78,
977 A.2d 650 (2009) (we attempt to reconcile conflicting
statutes in manner that allows for their coexistence).
In addition to its conclusion that the compelling need
and imminent harm requirements are inapplicable to
court-ordered, involuntary HIV testing under § 54-102a
(b), the majority’s holding also jettisons the procedural
safeguards contained in § 19a-582 (d) (8) (B) through
(D). Specifically, these provisions provide privacy pro-
tections for the defendant; General Statutes § 19a-582
(d) (8) (B); afford the defendant notice and an opportu-
nity to participate in the proceeding; General Statutes
§ 19a-582 (d) (8) (C); and provide that the proceedings
surrounding the involuntary testing generally must be
conducted in camera. General Statutes § 19a-582 (d)
(8) (D). Thus, the majority’s conclusion that § 19a-582
(d) (8) is inapplicable to HIV testing ordered pursuant
to § 54-102a (b) leaves the trial court with no standard
to apply or procedural safeguards to follow throughout
the proceeding.
Moreover, a review of the broader statutory scheme
provides further support for the conclusion that the
requirements in § 19a-582 (d) (8) are applicable to an
order issued pursuant to § 54-102a (b). General Statutes
§ 19a-583, which, without question, falls within the
ambit of § 54-102a (b), provides guidance on the disclo-
sure of HIV related information. Significantly, subdivi-
sion (10) of § 19a-583 (a) incorporates the same immi-
nent danger and compelling need standard that is
included in § 19a-582 (d) (8). Section 19a-583 provides in
relevant part: ‘‘(a) No person who obtains confidential
HIV-related information may disclose or be compelled
to disclose such information, except to the following:
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‘‘(10) Any person allowed access to such information
by a court order which 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 test results which cannot be
accommodated by other means. . . .’’ (Emphasis
added.) For example, under General Statutes § 54-102c,
when a trial court orders an HIV test pursuant to § 54-
102a, a victim may designate a health care provider to
disclose the results to the victim. Whether the health
care provider can disclose the results to the victim is,
in turn, determined based on § 19a-583 (a) (10) because
that provision sets the parameters for disclosure of
HIV test results and is incorporated into § 54-102a. See
General Statutes § 54-102a (b) (‘‘[t]he provisions of sec-
tions 19a-581 to 19a-585 . . . shall apply’’). Thus, in
order for the victim’s designated health care provider,
or anyone else, to disclose the results of the HIV test
to the victim, the provider must ensure that the same
standard found in § 19a-582 (d) (8) has been satisfied.
See General Statutes § 19a-583 (a) (10).
It would be a bizarre and unworkable result if a crimi-
nal trial court, guided by no meaningful standard, could
order involuntary HIV tests when, simultaneously, the
only way the results could legally be disclosed to the
victim would be by ensuring that the imminent danger
and compelling need requirements of § 19a-583 (a) (10)
had been employed by the trial court before it issued
the order. In other words, the court could order the
test, but the victim would not be able to lawfully obtain
the results.7 I would not construe the statutory scheme
to create such a bizarre result. See, e.g., Goldstar Medi-
cal Services, Inc. v. Dept. of Social Services, 288 Conn.
790, 803, 955 A.2d 15 (2008) (‘‘[i]n construing a statute,
common sense must be used and courts must assume
that a reasonable and rational result was intended’’
(internal quotation marks omitted)).
The majority’s construction of § 54-102a (b), which
renders the entirety of § 19a-582 inapplicable under
§ 54-102a, also leads to an inconsistency in the provision
of counseling services, which would be afforded to vic-
tims but not to criminal defendants who test positive
for HIV. Specifically, § 19a-582 (c) provides for certain
counseling services to a defendant, which are designed
to, among other things, provide the defendant with
assistance to obtain treatment and to notify sexual part-
ners. These critical counseling services would not be
available to defendants under the majority’s construc-
tion of § 54-102a (b) because all of § 19a-582 is inapplica-
ble to HIV testing ordered under subsection (b) of § 54-
102a. Pursuant to § 54-102c, however, the victims would
be given such counseling services. Thus, the majority’s
construction would result in victims receiving counsel-
ing services but not defendants, who, naturally, should
also be encouraged to obtain treatment and to notify
their partners of their HIV status.8 Indeed, this court
has previously explained the importance of identifying
individuals who are HIV positive in order to provide
them with education and treatment. See, e.g., Doe v.
Marselle, 236 Conn. 845, 852, 675 A.2d 835 (1996) (‘‘[the
requirements of chapter 368x of the General Statutes]
relate principally to the areas of informed consent for
HIV testing and confidential treatment of HIV-related
information, and are aimed at helping health care pro-
viders to identify those people with the disease, to treat
them and to educate them’’ (emphasis added)). This
concern applies with equal force to both victims and
defendants.
The majority, however, claims that § 54-102a (b),
which pertains to HIV testing in pending criminal cases,
and General Statutes § 54-102b, which pertains to HIV
testing in cases following a defendant’s conviction, are
materially identical, such that § 19a-582 (d) (8) either
applies to both provisions or to neither. See part II of
the majority opinion. As a result, the majority asserts,
under the defendant’s construction of § 54-102a (b), the
imminent harm and compelling need requirements of
subdivision (8) of § 19a-582 (d) also apply to § 54-102b,
when the defendant has been found guilty beyond a
reasonable doubt. See id. The majority concludes that
‘‘[i]t simply is impossible to believe that the legislature
would have imposed that same exacting standard when
the state has already established that the victim was
sexually assaulted by the defendant and in all other
circumstances in which someone is prompted, for what-
ever reason, to seek an order requiring another person
to submit to an HIV test.’’ (Emphasis omitted.) Text
accompanying footnote 16 of the majority opinion.
I respectfully disagree. I first note that, when an indi-
vidual has been charged with certain offenses, § 54-
102a (b) provides that the court ‘‘may’’ order the HIV
testing, whereas, when an individual has been convicted
of certain offenses, § 54-102b (a) provides that the court
‘‘shall,’’ at the victim’s request, order HIV testing. It is
logical that the trial court would be afforded discretion
to order HIV testing when a defendant has only been
charged with a crime but is directed to order the testing
after the defendant has been convicted.
More important, I find it troubling that the majority
construes § 54-102a (b) such that an individual who has
not been convicted of a crime and enjoys the presump-
tion of innocence may be subjected to involuntary test-
ing based only on the fact that he was charged with one
of the enumerated offenses. Contrary to the majority’s
conclusion that §§ 54-102a (b) and 54-102b are materi-
ally identical, such that subdivision (8) of § 19a-582 (d)
either applies to both provisions or it applies to neither,
§ 54-102b is even clearer than § 54-102a (b) that the
provisions of § 19a-582 (d) (8), which provide the stan-
dard for obtaining a court-ordered HIV test without the
consent of the defendant, are also applicable to a test
ordered for someone who has been convicted. Indeed,
the issue in this case stems from the parties’ dispute
over the proper reading of the ‘‘[n]otwithstanding the
provisions of section 19a-582’’ language contained in
the first sentence of § 54-102a (b). There is no such
language in § 54-102b. Rather, § 54-102b provides only
that ‘‘[t]he 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.’’ General
Statutes § 54-102b (b). There can be no question that
the rigorous standard and procedural safeguards con-
tained in § 19a-582 (d) (8) apply to involuntary HIV
testing of a convicted person. It would be illogical to
conclude that the more stringent, statutory standard to
order an HIV test would apply to someone who has
been convicted but that someone who has been merely
arrested and charged with a crime could be ordered to
have an involuntary HIV test conducted on him under
the more lenient, less exacting standard, articulated in
part III of the majority opinion.
As I am sure the majority would, I acknowledge that
§ 54-102a (b) is not a model of clarity, but the interpreta-
tion advanced by the state and the majority would per-
mit trial courts to order HIV testing anytime the defen-
dant has been charged with one of the offenses
enumerated in the statute, the alleged offense involved
a completed sexual act, and the criminal case is pend-
ing. As the majority acknowledges in part III of its
opinion, this is nearly standardless and requires this
court to supply an interpretive gloss to save the consti-
tutionality of § 54-102a (b). ‘‘[I]t is well established that
this court has a duty to construe statutes, whenever
possible, to avoid constitutional infirmities . . . .’’
(Internal quotation marks omitted.) Kuchta v. Arisian,
329 Conn. 530, 548, 187 A.3d 408 (2018); see also State
v. Cook, 287 Conn. 237, 245, 947 A.2d 307, cert. denied,
555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008).
‘‘[W]hen called [on] to interpret a statute, we will search
for an effective and constitutional construction that
reasonably accords with the legislature’s underlying
intent.’’ (Internal quotation marks omitted.) State v.
Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991). Given that
§ 19a-582 (d) (8) supplies the legislatively determined
standard for the court to apply when ordering HIV test-
ing under § 54-102a (b), I fail to see why the majority
has created a constitutional problem by unnecessarily
construing § 54-102a (b) in a manner necessitating an
interpretive gloss to save the constitutionality of the
statute.9 As we have explained, ‘‘[e]stablished wisdom
counsels us to exercise self-restraint so as to eschew
unnecessary determinations of constitutional ques-
tions. . . . It is nevertheless relevant to our construc-
tion of the statute that our interpretation avoids consti-
tutional perils.’’ (Citations omitted; internal quotation
marks omitted.) Id., 89–90. Consistent with this princi-
ple, I conclude that the ‘‘[n]otwithstanding’’ language
in § 54-102a (b) applies only to those aspects of § 19a-
582 that would require the defendant’s informed con-
sent and any provision that would limit or prohibit the
disclosure of the test results to the victims. All other
aspects of § 19a-582—including the court procedures
and legal standard set forth in subsection (d) (8)—
remain applicable to a court order for involuntary HIV
testing under § 54-102a (b).
With respect to a court-ordered examination for sexu-
ally transmitted diseases pursuant to § 54-102a (a), the
majority correctly notes, and the defendant conceded
at oral argument, that the requirements for ordering
HIV testing under § 19a-582 (d) (8) do not apply to
motions for an examination for sexually transmitted
diseases under § 54-102a (a). See part II of the majority
opinion. The majority thus states that, ‘‘even if we were
to interpret § 54-102a (b) to avoid the need for a consti-
tutional 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.’’ (Emphasis omitted.)
Footnote 20 of the majority opinion. As a result, the
standards for court-ordered testing for HIV and for an
examination for sexually transmitted diseases would
be different.
To the extent the majority reasons that this court
must supply an interpretive gloss to subsection (b) of
§ 54-102a because subsection (a) of that statute requires
one and the two subsections must have the same stan-
dard, I disagree. It is reasonable that court-ordered test-
ing for HIV and an examination for sexually transmitted
diseases would be treated differently. In fact, the legisla-
ture has emphasized that the disclosure of an individu-
al’s HIV status can deter future HIV testing and can
lead to discrimination. See, e.g., Doe v. Marselle, supra,
236 Conn. 853–54 (chief of AIDS section for then Depart-
ment of Health Services testified before legislature,
‘‘emphasizing that confidentiality is essential ‘to protect
people from the discrimination that often comes with
the knowledge that a person has AIDS [acquired
immune deficiency syndrome] or HIV infection’ ’’). Spe-
cifically, in § 19a-583 (a) (10), which sets forth the limi-
tations for the disclosure of HIV related information,
the legislature directed courts that, ‘‘[i]n assessing com-
pelling need, the court shall weigh the need for disclo-
sure against the privacy interest of the test subject and
the public interest which may be disserved by disclo-
sure which deters future testing or which may lead to
discrimination.’’ (Emphasis added.) General Statutes
§ 19a-583 (a) (10) (A).
It is entirely reasonable to conclude that the legisla-
ture treated testing for HIV and an examination for
sexually transmitted diseases differently given the
heightened discrimination and stigma that HIV status
carries. The persistent, endemic discrimination, and
even criminalization, related to HIV is undeniable in
our country. People living with HIV face, among other
things, significant housing discrimination; see, e.g., The
Center for HIV Law & Policy, Housing Rights of People
Living with HIV/AIDS: A Primer (March, 2010) p. 3,
available at https://www.hivlawandpolicy.org/sites/
default/files/housingprimer3.10.pdf (last visited July 13,
2021); and employment discrimination. See, e.g., The
Center for HIV Law & Policy, Employment Rights of
People Living with HIV/AIDS: A Primer (September,
2010) p. 4, available at https://www.hivlawandpolicy.org/
sites/default/files/CHLP%20Employment%20Primer%20
sept%202010%20FINAL.pdf (last visited July 13, 2021).
Additionally, ‘‘[a]s of 2020, [thirty-seven] states have
laws that criminalize HIV exposure’’; Centers for Disease
Control & Prevention, HIV and STD Criminalization
Laws (last updated December 21, 2020), available at
https://www.cdc.gov/hiv/policies/law/states/exposure.html
(last visited July 13, 2021); despite the fact that ‘‘empiri-
cal studies on the impact of these laws suggest that
they do not decrease HIV infections or have any other
positive public health impacts,’’ and that these laws
may actually result in higher rates of transmission. Z.
Lazzarini et al., ‘‘Criminalization of HIV Transmission
and Exposure: Research and Policy Agenda,’’ 103 Am.
J. Pub. Health 1350, 1352 (2013). An individual’s HIV
status carries with it various stigmas that are not impli-
cated to the same extent as an individual’s sexually
transmitted disease status. See, e.g., B. Anderson, ‘‘HIV
Stigma and Discrimination Persist, Even in Health
Care,’’ 11 AMA J. Ethics 998, 998 (2009) (‘‘HIV is differ-
ent from many other diseases. Finding out that one has
HIV presents complex physical, emotional, social, and
legal concerns that do not arise when one is tested for
other conditions, including other communicable dis-
eases.’’ (Emphasis in original.)). As such, it is logical
to conclude that a trial court would be required to
employ two different standards when ordering involun-
tary testing for HIV and an examination for sexually
transmitted diseases.
Accordingly, I would conclude that the requirements
set forth in § 19a-582 (d) (8) must be met prior to the
issuance of an order for involuntary HIV testing under
§ 54-102a (b). The requirements set forth in part III of
the majority opinion—namely, that the testing would
provide useful, practical information that cannot rea-
sonably be obtained otherwise—would be applicable
to a court-ordered examination for sexually transmitted
diseases under § 54-102a (a). Because the trial court
did not apply either standard, I would reverse the deci-
sion of the trial court to grant the motions of the state
and the victims that the defendant be required to submit
to HIV testing pursuant to § 54-102a (b) and an examina-
tion for sexually transmitted diseases pursuant to § 54-
102a (a), and remand the case to the trial court for
further proceedings.
Accordingly, I concur in the judgment.
1
Although § 54-102a (a) was the subject of a technical amendment in
2018; see Public Acts 2018, No. 18-168, § 29; that amendment has no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
2
General Statutes § 54-102a (b) provides in relevant part: ‘‘Notwithstand-
ing 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 immunodeficiency 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, inclusive, 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.’’
3
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 . . . .’’
4
Subsections (b) and (c) of § 19a-582 pertain to persons administering
tests authorized under that section. Subsection (b) addresses limited liability
for persons ordering a test without informed consent. Subsection (c) pro-
vides for counseling and referrals with the disclosure of test results.
5
In addition to General Statutes §§ 19a-581 through 19a-585, General Stat-
utes § 19a-590 is also incorporated by reference in § 54-102a (b) and does
not deal with consent.
6
The majority nevertheless concludes, as the state contends, that, if § 54-
102a (b) incorporates § 19a-582 (d) (8), § 54-102a (b) would be rendered
superfluous. See part II of the majority opinion. I disagree. Although it is
true that § 19a-582 (d) (8) preexisted § 54-102a (b), § 54-102a (b) gives victims
standing in a criminal proceeding to request a court-ordered HIV test of the
defendant that they would not otherwise have had. See General Statutes
§ 54-102a (b) (‘‘[i]f 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’’). This provision is one of the very limited circum-
stances in which a victim has standing in the criminal context to assert his
or her own interests. Indeed, we have held that victims do not have standing
to assert their own constitutionally protected rights as victims in criminal
proceedings when the defendant who perpetrated those crimes is being
prosecuted. See, e.g., State v. Gault, 304 Conn. 330, 342–43, 39 A.3d 1105(2012); see also, e.g., State v. Skipwith, 326 Conn. 512, 528, 165 A.3d 1211(2017) (McDonald, J., concurring in the judgment). But for the enactment
of § 54-102a (b), the victim could not—as the victims here—rely on the state
to seek the court’s intervention. Instead, the victim would have to initiate
a separate, civil action asserting a claim against the defendant, with all the
attendant expenses, in order to seek a similar court order pursuant to § 19a-
582 (d) (8).
7
I also note that, unlike in General Statutes § 54-102b, which specifically
provides that the results of an HIV test must be disclosed to the offender
who is tested after his conviction, there is nothing in the statutory scheme
in § 54-102a (b) that provides for the defendant to be notified of the results
of his involuntary HIV test taken while he has only been charged with a crime.
Compare General Statutes § 54-102b (a) (‘‘court . . . shall . . . order . . .
that the results be disclosed to the victim and the offender’’) with General
Statutes § 54-102a (b) (‘‘the results of such test may be disclosed to the vic-
tim’’).
Although § 54-102b was the subject of a technical amendment in 2019;
see Public Acts 2019, No. 19-189, § 32; that amendment has no bearing on
the merits of this appeal. For convenience, we refer to the current revision
of the statute.
8
The majority asserts that the counseling services provided for by § 54-
102c are ‘‘certain publicly available ‘educational materials’ and ‘information’
obtainable through the Department of Public Health, all of which a defen-
dant, or his or her counsel, may readily obtain upon request.’’ Footnote 16
of the majority opinion. The majority cites to no source of authority obligat-
ing the trial court to provide these services and information to the defendant.
That the defendant may request it means little if there is no obligation for
the trial court to provide it.
9
The majority also notes that it ‘‘know[s] of no other court that has found
[a provision like § 54-102a] to be unconstitutional or determined that an
interpretive gloss was necessary to avoid constitutional infirmity. In these
circumstances, the tenet of statutory construction on which the concurrence
relies simply has no utility in evaluating legislative intent.’’ Footnote 20 of
the majority opinion. The majority need look no further than the present
case, in which the majority itself recognizes that, under its construction of
the statute, an interpretive gloss is necessary to save the constitutionality
of the statute. Indeed, it is for this reason that I fail to understand how the
majority can conclude that its construction is ‘‘the only reasonable one’’;
id.; when that construction renders the statute unconstitutional without its
supplied judicial gloss.