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Hastings Law Journal

Abstract

In the face of the AIDS crisis, state legislatures are taking steps to curtail the spread of the disease. One strategy is legislation requiring mandatory HIV testing of both convicted and arrested prostitutes. This Note explores the Fourth Amendment issues involved in mandatory testing.

This Note traces the development of the Fourth Amendment "special needs" doctrine, under which mandatory testing of convicted prostitutes has been upheld. The Note applies the Fourth Amendment analysis to mandatory testing in the case of arrested prostitutes and concludes that it is unconstitutional. The Note suggests that in order to constitutionally test prostitutes for HIV before prostitutes are convicted, legislation should require a hearing to show reasonable suspicion that the person arrested is indeed a prostitute.

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