HAMPTON ROADS, Va. –Virginia Attorney General Jason Miyares is speaking out after seeing our News 3 Investigation that shed light on a law that stopped requiring rape suspects to get an HIV test after being arrested.
Lawmakers repealed the old law in 2021.
“The idea that you would put the rights of the rapists over the rights of the victim is upside down. It's wrong,” said Miyares.
Miyares said after our story broke he started looking into the details of the law.
“Reporters are the gatekeepers of democracy. I always tell people don’t always assume I know. I had some folks that texted me the story when it broke. I sent it to my team to get more information. That’s where the law is. It’s a law I voted against, but it’s the law in the Commonwealth of Virginia and it needs to be repealed,” said Miyares.
He and others are furious with changes made to the law that put an end to rape suspects being required to get an HIV test after an arrest.
Miyares was serving as a Virginia State Delegate when the bill passed.
“I know that there was limited debate on a lot of bills. There's a lot of bills that just flew through committee,” said Miyares.
The News 3 Investigative Team first broke this story after speaking to a rape victim who was flabbergasted by what she was told after the attack.
She said she was home alone this past spring when a man broke into her home and attacked her.
She said the rape was horrific, but the aftermath of not knowing whether her rapist exposed her to HIV and dealing with the restrictions put in place by the new law was even worse.
“The current law supports the perpetrators. It doesn’t support the victims,” said the survivor, who we are not identifying.
She was stunned to learn the man waiting in jail accused of raping her was not required to take an HIV test but she was asked to take HIV prevention medication that she said made her very sick due to other health problems.
She said she also has to continually take HIV tests to see if she has been exposed. She said it is terrible to have to wonder and worry.
Previously, a prosecutor in Virginia could request to a judge that a rape suspect be tested for HIV. The results were not allowed to be used in court against the defendant, according to the old Virginia code. The victim could know quickly if she was possibly exposed to the virus by the suspect taking a simple HIV test, but instead, now she has to wait months and months wondering what her HIV status is.
“It’s hard to move past what happened because it’s a constant reminder,” said the victim.
There were many changes made to Senate Bill 1138 back when this change was voted on and the laws are very complicated.
Taking out the rape suspect HIV testing was just one small aspect of the changes made during the vote.
The new language in the law focused on all sexually transmitted infections (STI) instead of just HIV and Hepatitis for certain legal issues.
For example, under the new law anyone diagnosed with an STI acting with intent to infect someone can be charged with a felony. Under the previous law, the language focused on HIV, Hepatitis B, and syphilis. The language was also changed to be “diagnosed” instead of “knowing to have” the virus.
Another example of the change in the law is if you are convicted of selling or using drugs, a person is no longer required, but rather given the option to get tested for all STI’s.
According to the Attorney General’s Office: The Virginia Code section that would have allowed for a Commonwealth's Attorney to request HIV testing of the assailant was repealed.
The News 3 Investigative Team has been working for weeks to get answers from the people who led the change to the law.
SB 1138 Sexually transmitted infections; infected sexual battery, the penalty was sponsored by (D) Mamie E. Locke (chief patron), (D) Jennifer L. McClellan (chief patron), (D) Scott A. Surovell, and Delegate (D) Betsy B. Carr.
On September 7th -- Delegate Carr issued the following statement:
“SB1138 was enacted to remove the stigmatization of HIV. The stigma of an HIV diagnosis too often falls on marginalized persons such as people of color and LGBTQ Virginians, subjecting them to increased discrimination. Victims of sexual assault are given a PERK (Physical Evidence Recovery Kit) which makes available a suite of tests, treatments, and medications, including HIV preventive medication, ensuring that a perpetrator with HIV cannot pass it on to his or her victim. I have very recently been made aware that some individuals may have an adverse reaction to this preventive medication. I understand that an adverse reaction can feel like an undue burden for victims. Even without this undue burden, survivors face a lot of challenges and trauma to process. PERK provides comprehensive treatment and in a timely manner. I am committed to the ongoing process of making sure Virginia’s code protects and empowers survivors of sexual assault to the fullest possible extent, while not stigmatizing HIV.”
During our initial report –Senator Jennifer McClellan issued the following statement:
"Virginia law empowers survivors of sexual assault to receive free, comprehensive STD testing as part of the Physical Evidence Recovery Kit. As part of this process, survivors can also receive post-exposure medicine to reduce the risk of pregnancy, HIV, and other potential STDs within 72 hours. The 2021 bill modernized outdated language that specifically focused on testing suspects for HIV and Hepatitis after their arrest, as opposed to a more comprehensive approach focused on the survivor's health in the immediate aftermath of the assault."
We have asked for additional information and have not received any information. Delegate Surovell directed us to speak with Senator Locke and Senator McClellan because they were the main patrons.
Senator Locke from Hampton did not return any of our requests for more information about the bill she sponsored.
“This is an example of putting the rights of the defendant and the felon above the rights of the victim,” said Miyares.
The victim in this case said she feels helpless, hopeless, and shocked.
“I feel very disenfranchised by our government,” said the victim.
Miyares says he’s in discussions with lawmakers to try and get the current law repealed.
“That really does put some wind in my sails,” said the victim, “Hopefully this will be changed because it shouldn’t be a right or left issue.”
The next session starts in January.
If you are a victim of sexual assault and need help:
National Sexual Assault Hotline
Hours: Available 24 hours
1-800-656-4673
For more resources from the Virginia Department of Criminal Justice Services, click here
