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AIDS CASES TURN INTO COURT CASES

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The deadly AIDS virus has spawned more lawsuits than any other single disease in American legal history, and many local attorneys believe the court battles have just begun.

"We have just seen the tip of the iceberg so far. If there's a hot new area of litigation, this is it," said Salt Lake attorney Brad Rich. "If we don't know what to do about AIDS medically, we will know what to do about it legally."According to the American Medical Association, the 469 AIDS-related legal cases filed in federal, state and municipal courts highlight conflicts in civil liberties, ethics and public health.

But why AIDS and not other communicable diseases?

"The reason is that the disease progresses rapidly. Patients know they don't have a lot of time (to live) so instead of going through protracted negotiations, a lot of people feel they have to have immediate redress of the problem - and are seeking it in the courts," said state epidemiologist Craig R. Nichols.

Nichols believes there are other reasons.

Several advocacy groups with strong legal skills who want visibility for their programs are setting precedent through court cases.

"With most other diseases a strong advocacy group has never really developed. AIDS has been different in that many of the people who have the disease have been willing to make public statements about and seek legal right and access to health care," Nichols said. "There are many individuals in the gay rights movement who saw AIDS as a vehicle to not only discuss AIDS but equal rights for homosexuals."

According to Nichols, Utah nonetheless still has fewer AIDS-related court cases than other states - mainly because it has fewer AIDS cases.

"I also think there have been a lot of laws enacted related to AIDS (in other states) that have not been clearly thought out, where we have tried to make laws that make good sense and could be documented by some scientific evidence."

Throughout the United States, AIDS is now an issue in divorces and child-custody and visitation disputes. Intentionally concealing infection from a spouse can be a cause of action, but courts generally have not found AIDS to be relevant in deciding family law cases.

Most courts have reasoned that infection does not automatically make someone a bad person.

Criminal courts are full of cases with an AIDS component. In sexual-assault cases, courts increasingly are requiring testing - arguing the victim's right to know outweighs the defendant's right to privacy.

Third Circuit Court Judge Eleanor Van Sciver requires that people at high risk who have been arrested for any illegal behavior be tested for AIDS.

"I would be opposed to across-the-board testing (just) because they are in a particular group, unless they violated the law," she said. "If they don't violate the law, it is really no one's business."

Rich doesn't believe it's anyone's business - period.

The attorney and the American Civil Liberties Union has continually decried the indiscriminate and routine testing of individuals guilty of minor crimes. Rich asserts that the clandestine nature of the tests and the obscure purpose of the results are a grim reminder of Adolf Hitler's experiments on human beings during World War II.

Serving as the ACLU cooperating attorney, Rich filed a petition Aug. 30, 1988, challenging the practice of AIDS tests based on a case involving a client arrested on a disorderly conduct charge. Before sentencing, Van Sciver ordered that the client submit to a $25 HIV test at his own expense.

Rich, insisting the test violated his client's constitutionally protected rights, opposed Van Sciver's order.

The result? Third District Judge A. Rokich signed a writ prohibiting Van Sciver from requiring Rich's client to submit to the AIDS test prior to sentencing.

However, the question remains if the judge can require AIDS testing following sentencing.

"No one is saying that no one should be tested," Rich said. "A few lunatics are saying everyone should be tested."

The attorney believes the issue should be determined case-by-case. He's against wholesale testing - and "well-intentioned attorneys and judges who don't know what to do with the results."

"If you don't have any notion of what you are going to do with results, why do it? The measure of a free society is whether we can beat the disease without tramping over everyone's rights."

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(Additional information)

Utah AIDS statistics August 1983 to March 1990

272 cases

160 deaths

182 homosexual/bisexual males

11 homosexual-intravenous drug abusers

45 intravenous drug abusers

7 heterosexuals

9 hemophiliacs

9 acquired through blood transfusions

3 undetermined

6 children

U.S. AIDS Cases: 121,645