People v. Adams

• Decision Date: 30 July 1992
• Docket Number: No. 69278,69278
• Citation: People v. Adams, 149 Ill.2d 331, 597 N.E.2d 574, 173 Ill.Dec. 600 (Ill. 1992)
• Parties: , 173 Ill.Dec. 600, 61 USLW 2128 The PEOPLE of the State of Illinois, Appellant, v. Henrietta ADAMS et al., Appellees.
• Court: Illinois Supreme Court

Page 574

597 N.E.2d 574

149 Ill.2d 331, 173 Ill.Dec. 600, 61

USLW 2128

The PEOPLE of the State of Illinois, Appellant, v.Henrietta ADAMS et al., Appellees.

No. 69278.

Supreme Court of Illinois.

July 30, 1992.

Cecil A. Partee and Jack O'Malley, State's Attys., Renee G. Goldfarb and Robert M. Portman, Asst. State's Attys., Chicago, for the People.

John R. Hammell, Timothy S. Bishop and Harvey Grossman, Chicago, for appellees.

James D. Holzhauer, of Mayer, Brown & Platt, Chicago, for amici curiaeIll. Public Health Ass'n.

Sylvia A. Law, New York City, and Elizabeth Hubbard, Chicago, for amici curiae The Center for Women Policy Studies et al.

Chief Justice MILLERdelivered the opinion of the court:

In separate proceedings in the circuit court of Cook County, the defendants, Henrietta Adams and Peggy Madison, were convicted of prostitution.Pursuant to section 5-5-3(g) of the Unified Code of Corrections, the defendants were ordered to undergo medical testing to determine whether they were carriers of the human immunodeficiency virus (HIV), the cause of acquired immunodeficiency syndrome (AIDS).(Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3(g).)Rather than submit to the court-ordered tests, the defendants filed motions challenging the constitutionality of section 5-5-3(g).Following a hearing, the trial judge determined that the testing procedure represented an illegal search and seizure and denied the defendants equal protection.Because the statute was declared unconstitutional, the State's appeal from that ruling lies directly to this court.(134 Ill.2d R. 603.)For the reasons that follow, we reverse the judgment of the circuit court and remand these consolidated actions for further proceedings.

Section 5-5-3(g) of the Unified Code of Corrections provides as follows:

"Whenever a defendant is convicted of an offense under Sections 11-14[prostitution], 11-15 [soliciting for a prostitute], 11-15.1 [soliciting for a juvenile prostitute], 11-16 [pandering], 11-17 [keeping a place of prostitution], 11-18 [patronizing a prostitute], 11-19 [pimping], 11-19.1 [juvenile pimping], 11-19.2 [exploitation of a child], 12-13 [criminal sexual assault], 12-14 [aggravated criminal sexual assault], 12-15 [criminal sexual abuse] or 12-16 [aggravated criminal sexual abuse] of the Criminal Code of 1961, the defendant shall undergo medical testing to determine whether the defendant has any sexually transmissible disease, including a test for infection with human immunodeficiency virus (HIV) or any other identified causative agent of acquired immunodeficiency syndrome (AIDS).Any such medical test shall be performed only by appropriately licensed medical practitioners and may include an analysis of any bodily fluids as well as an examination of the defendant's person.Except as otherwise provided by law, the results of such test shall be kept strictly confidential by all medical personnel involved in the testing and must be personally delivered in a sealed envelope to the judge of the court in which the conviction was entered for the judge's inspection in camera.Acting in accordance with the best interests of the victim and the public, the judge shall have the discretion to determine to whom, if anyone, the results of the testing may be revealed.The court shall order that the cost of any such test shall be paid by the county and may be taxed as costs against the convicted defendant."Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3(g).

The procedural facts of these consolidated cases may be stated briefly.DefendantHenrietta Adams was charged with prostitution, a violation of section 11-14 of the Criminal Code of 1961(Ill.Rev.Stat.1989 ch. 38, par. 11-14).In a bench trial, Adams was found guilty of that offense and was sentenced to a term of probation.As a condition of her sentence, Adams was ordered to undergo an HIV test pursuant to section 5-5-3(g) of the Unified Code of Corrections.

In a separate proceeding, defendantPeggy Madison was similarly charged with prostitution.Madison pleaded guilty to the charge and was sentenced to a term of probation.Like Adams, Madison was ordered to undergo an HIV test pursuant to section 5-5-3(g).

The defendants refused to submit to the HIV tests and instead challenged those portions of their respective probationary orders.The matters were then consolidated for purposes of further proceedings.The defendants raised a variety of constitutional grounds in support of their contention, arguing that the statute violated their rights to privacy, to freedom from unreasonable searches and seizures, and to the equal protection of the laws, as guaranteed by the United States and Illinois Constitutions (U.S. Const., amends. IV, XIV;Ill. Const.1970, art. I, §§ 2,6), and, in addition, that the testing requirement was cruel and unusual punishment, in violation of the eighth amendment of the United States Constitution(U.S. Const., amends. VIII, XIV).

The parties submitted extensive memoranda on the issues, and an evidentiary hearing was held.At the hearing, the defendants presented the testimony of three expert witnesses, who questioned the utility of the testing requirement for persons convicted of prostitution.The witnesses were Dr. Renslow Sherer, chair of the Governor's Task Force on Aids; Colleen Ahler, director of the AIDS program at Genesis House, a social services agency that works with women in prostitution; and Dr. John Raba, medical director at Cermak Health Services, which provides medical services to the Cook County Department of Corrections.These witnesses believed that mandatory HIV testing of sex offenders is ineffective and may even be counterproductive to the effort to stop the spread of AIDS, particularly among women in prostitution.The testimony of these witnesses is discussed in greater detail later in this opinion.

The trial judge took the matter under advisement at the conclusion of the hearing.Later, in a written opinion, the judge ruled that the HIV testing statute violated the fourth amendment's guarantee against unreasonable searches and seizures and denied the defendants their fourteenth amendment right to equal protection of the laws.The trial judge did not expressly declare that the statute violated the corresponding provisions of the Illinois Constitution.The trial judge rejected the defendants' contention that the testing requirement constituted cruel and unusual punishment under the eighth amendment.In light of his conclusion that the testing requirement was an invalid search, the trial judge found it unnecessary to rule on the defendants' additional contention that the statute violated their right to privacy.Because the trial judge found the testing requirement unconstitutional, he removed it from the terms of the defendants' probationary orders.

The State has appealed the trial judge's ruling directly to this court.(See134 Ill.2d R. 603.)We granted leave to a number of groups and organizations to submit briefs as amici curiae.(See134 Ill.2d R. 345.)The parties present two issues for our review: whether the HIV testing requirement found in section 5-5-3(g) of the Unified Code of Corrections constitutes an invalid search and seizure, and whether the statute denies the defendants equal protection of the laws.

I

AIDS is a fatal illness for which there is no known cure.AIDS can be spread through the exchange of bodily fluids, as in sexual intercourse, in the sharing of needles by intravenous drug users, during pregnancy or childbirth, and through the donation of blood, organs, or semen.Section 5-5-3(g) does not specify a particular test to be used to determine whether the individual has HIV.The testimony introduced below, as well as the medical literature and the case law, however, refer to two tests that are used in combination to determine whether a person has been exposed to the causative virus.One is the enzyme-linked immunosorbent assay (ELISA).If the result of that test is positive, a second procedure, the Western Blot test, is then performed to confirm the initial result.The tests do not detect the virus itself but rather the presence of antibodies created by the body in response to the virus.The tests are considered to be reasonably accurate.Because there is a latency period of variable length, during which an individual does not immediately produce antibodies in response to exposure to HIV, a negative test does not necessarily mean that the person has not been exposed to the virus.

The present statute took effect on January 1, 1988.It was among a series of laws enacted by our General Assembly in response to the growing AIDS crisis.A companion provision, section 5-5-3(h) of the Unified Code of Corrections(Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3(h)), contains a similar requirement for mandatory HIV testing of persons convicted of certain offenses under the Hypodermic Syringes and Needles Act(Ill.Rev.Stat.1989, ch. 38, pars. 22-50 through 22-55).The appellate court has upheld the constitutionality of section 5-5-3(h) in People v. C.S.(1991), 222 Ill.App.3d 348, appeal filed, No. 73203.Together, then, sections 5-5-3(g) and (h) target, for purposes of mandatory testing, two major groups at risk of contracting AIDS: sex offenders and intravenous drug users.We note, too, that a number of other States have enacted similar laws imposing mandatory testing on persons convicted of certain offenses involving sexual misconduct.(SeeCal.Penal Code § 1202.6(Deering Supp.1992);Colo.Rev.Stat.Ann. § 18-7-201.5(West Supp.1991);Fla.Stat.Ann. § 796.08(West Supp.1992);Ky.Rev.Stat.Ann. § 529.090(BaldwinSupp.1991);Nev.Rev.Stat. § 201.356(1991);S.C.Code Ann. § 16-15-255(Law.Co-op.Supp.1991);Va.Code Ann. § 18.2-346.1(MichieSupp.1991);Wash.Rev.Code Ann. § 70.24.340(West Supp.1992).)The California statute was upheld against similar constitutional challenge in Love v. Superior Court(1990), 226 Cal.App.3d 736, 276...