One comment on my earlier post on this issue raises a very interesting and important point about rape and HIV testing. The comment notes that prophylactic HIV treatment must begin within 72 hours of exposure to the virus, which almost certainly means that by the time a suspect has been indicted for a particular rape, the window will have closed. It is true that the CDC recommends that prophylactic HIV treatment be started within 72 hours of exposure. For those unfamiliar with the distinction between HIV prophylaxis and treatment, the former allows a person who has had HIV introduced into her system to prevent infection (as opposed to simply managing it) by taking the cocktail every day for a month within a short time after exposure. This is distinct from using the medication to "treat" HIV, because if prophylaxis is successful, then the exposed person need not ever become HIV-positive.

There are some caveats however, which may affect how the 72-hour window bears on an assessment of the New York bill. First, the 72-hour window is based on laboratory tests performed on monkeys rather than on observation of exposed human beings. The window reflects the diminishing prevention rate in monkeys as the time between exposure and commencement of treatment lengthens: 100% of monkeys avoided HIV if treated within 24 hours; 52% avoided infection if treated within 72 hours. Therefore, prophylaxis could potentially be useful to human beings after the passage of a longer (or shorter) period of time post-exposure than it would be in a monkey. Clinical trials have yet to tell us, one way or the other. Even if the odds of prevention dip below 50% after 72 hours, moreover, they may not dip to zero (and some infections may still be stopped in their tracks). The second caveat is that a rape victim may be more willing to endure the side effects of the cocktail if she knows that if and when her alleged assailant is indicted, he will immediately be tested. She will then have the opportunity to revisit her decision to proceed with treatment on the basis of the new information available to her. Third, the cocktail administered after the window on preventing infection has firmly closed can still offer early treatment, and the earlier treatment begins, the better the prognosis could be. And finally, learning that her alleged assailant is HIV-negative could provide a measure of relief to a rape victim, and this is worth a great deal.

In short, the 72-hour window for HIV prophylaxis does reduce the utility of requiring HIV-testing for people indicted for rape. Nonetheless, existing uncertainty about the true size of that window for human patients coupled with the various ways in which the information could prove useful to a victim, even if the 72-hour window holds for human beings, may still justify the New York bill under consideration. As I said in my earlier post, I am not strongly committed to this position, but my inclination is still to favor the bill.

[Speaking of updates, I have more on the vegan issue in my FindLaw column today.]