HAMPTON ROADS, Va. – Lawmakers in Richmond are discussing a proposed bill that was created after a News 3 Investigation uncovered concerns from rape survivors.
State Delegate Emily Brewer (R) filed a bill in December to reverse the law back to what it was before 2021. The new legislation would once again allow rape suspects to be tested for sexually transmitted diseases after being arrested as long as there was a court order.
Monday a Court of Justice subcommittee in Richmond voted 8 to 0 to move forward to support House Bill 1416.
“This legislation actually was brought out of a real-life story that happened in Norfolk but other places across the Commonwealth. Oftentimes, we have things that happen in General Assembly with unintended consequences that affect others, so what this bill seeks to do is restore rights back to victims especially in regards to testing following someone's arrest after a sexual assault," said Delegate Brewer.
Over the summer, a woman said she was sexually assaulted in Norfolk after a man broke into her house. He was accused of assaulting three women. One victim told News 3 she was stunned to learn that, after his arrest, he was no longer required to take an HIV test after a change to Virginia law in 2021.
The purpose of the change to the law was to end the stigma of people living with HIV, according to previous statements News 3 received from lawmakers involved in the change. They said the change to the law in 2021 focused on providing resources and support to victims.
But the victims News 3 spoke to did not agree and said the change to the law in 2021 revictimized them.
Instead of knowing whether they were possibly exposed to HIV immediately after the assault, they were required to take preventative HIV medication for months and continually get tested every few weeks.
The suspect, who was in jail, was not required to take any kind of test.
Those against the change that happened in 2021 said it supported the rights of the suspect over the rights of the victims.
News 3 Investigator Margaret Kavanagh has been following and exposing this issue for months. Our original story got the attention of Virginia Attorney General Jason Miyares and other lawmakers. Miyares said he was infuriated after seeing our story as it exposed how this change to the law made it more difficult for rape survivors.
Delegate Brewer from District 64 saw the investigation. She took action and introduced House Bill 1416.
On Monday, she presented the bill to the subcommittee.
The rape survivor told News 3 she was outraged to learn that the man in jail accused of breaking into her home and violently raping her in the shower was not required to get an HIV test. But she was required to take medicine to prevent HIV and continually take tests to see if she had been exposed every few weeks after the violent assault.
“It is very frustrating that the perpetrator doesn't have any responsibility in this whatsoever. It's actually, it’s just unconscionable,” said the first survivor.
A man was accused of sexually assaulting three women. News 3 Investigates interviewed two of them. Both said they’re stunned by the current Virginia law that they feel protects suspects and victimizes the survivors over and over.
“It’s just mind-blowing that there was no requirement at all and so much was at stake and now it is so easy to get an HIV test,” said the first survivor.
“My goal is to put the code of Virginia back to where it was 2 years ago to make sure that criminals are tested,” said Delegate Brewer.
She would like to see suspects tested for sexually transmitted infections like HIV.
The bill states the evidence won't be used against the suspect in court. The purpose would be to give the victim a piece of mind who is left forced to take intense medicine and worried if they've been exposed for months.
We spoke to Kevin Keller, an attorney for the first survivor.
“They've done a lot of damage to some people, including my client, and that damage doesn't go away. But I do think that putting the bill back, essentially un-repealing it, and fixing on the language in it to make it a little broader is a good thing. I hope everybody is on board with that,” said Keller.
Those who led the change to the law in 2021: SB 1138 Sexually transmitted infections; infected sexual battery, the penalty was sponsored by Mamie E. Locke (D) (chief patron), Jennifer L. McClellan (D) (chief patron), Scott A. Surovell (D), and Delegate Betsy B. Carr (D).
Several months ago, Senator Jennifer McClellan provided 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."
On September 7, 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."
But many don’t agree with the reasoning behind the change to the law in 2021.
“I think it just wasn't very well thought out and this is why I think it's absolutely incumbent upon me and others to support making sure we support victims,” said Delegate Brewer.
In order for the law to change, the new bill recently introduced needs to pass the House and pass the Senate then get the governor’s signature.
