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Abstract

This Article uncovers a blatantly sexist dynamic that has persisted, largely unnoticed, in American common law for more than a century: courts are far more willing to accept invasive examinations for sexually transmitted infections in women than in men. Remarkably, this disparity has been justified by the same assumption throughout the twentieth century: women with STIs are viewed as a threat to the health of the general public, while men with STIs are viewed as a threat only to individuals, not the public at large. By examining cases involving men accused of rape and women accused of prostitution, this Article documents starkly disparate treatment. For decades, judges across the country have consistently relied on the stereotype that prostitutes with STIs represent such an alarming threat to public health that few measures go too far to stop them from promiscuously spreading these infections. On the other hand, rapists with STIs are a threat only to individual victims, not to the broader public, and thus health measures to hinder their transmission of infection must be far more limited. Together, these opinions comprise a cognizable legal doctrine—the “venereal doctrine.” This doctrine emerged in the early 1900s, as scientific advancements made relatively reliable STI testing a reality, and it evolved throughout the twentieth century. Even following the rights revolution of the Warren Court, this doctrine persisted; remarkably, in the late 1980s and early 1990s, the assumptions underlying the doctrine were actually written into law for the first time. These years marked the heyday of hysteria surrounding the HIV/AIDS epidemic, and authorities across the country called for compulsory HIV testing statutes for both men accused of rape and women accused of prostitution. After considerable struggle, legislatures enacted these laws in dozens of states—and they remain on the books today. Yet these laws were firmly grounded in the gendered assumptions of decades past: male rapists were a threat only to their victims, while prostitutes were a threat to the public at large. These laws openly reflect their underlying assumptions—some testing statutes for accused rapists explicitly declare that their purpose is to provide peace of mind to individual victims, and many of these statutes allow testing only at the request of the alleged victim. Compulsory testing statutes for prostitutes, on the other hand, largely remain grounded in general public health powers. When these laws were challenged, courts across the country unanimously upheld them, and once again they openly relied upon gendered assumptions. Significantly, the venereal doctrine flies in the face of scientific data. Modern studies show that female prostitutes very rarely transmit STIs to their customers, while male rapists are relatively likely to transmit STIs to their victims. Therefore, this Article concludes that compulsory pre-conviction STI examinations of accused prostitutes are unconstitutional. The same may be (but is not necessarily) true for examinations of accused rapists.

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Link to publisher version (DOI)

https://doi.org/10.15779/Z38N29P69K