Text: SF02042 Text: SF02044 Text: SF02000 - SF02099 Text: SF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 135.11, subsection 24, Code 1995, is 1 2 amended to read as follows: 1 3 24. Adopt rules which provide for the testing of a 1 4 convicted or alleged offender for the human immunodeficiency 1 5 virus pursuant to chapter 709B. The rules shall provide for 1 6 the provision of counseling, health care, and support services 1 7 to the victim. 1 8 Sec. 2. Section 141.23, subsection 1, paragraph i, Code 1 9 1995, is amended to read as follows: 1 10 i. The convicted or alleged offender, the physician or 1 11 other practitioner who orders the test of the convicted or 1 12 alleged offender, the victim, the parent, guardian, or 1 13 custodian of the victim if the victim is a minor, the 1 14 physician of the victim, the victim counselor or person 1 15 requested by the victim who is authorized to provide the 1 16 counseling required pursuant to section 141.22, and the 1 17 victim's spouse, persons with whom the victim has engaged in 1 18 vaginal, anal, or oral intercourse subsequent to the sexual 1 19 assault, or members of the victim's family within the third 1 20 degree of consanguinity. For the purposes of this paragraph, 1 21 "victim" means victim as defined in section 709B.1. 1 22 Sec. 3. Section 709B.1, Code 1995, is amended by adding 1 23 the following new subsections: 1 24 NEW SUBSECTION. 1A. "Alleged offender" means a person who 1 25 has been charged with the commission of a sexual assault or a 1 26 juvenile who has been charged in juvenile court with being a 1 27 delinquent as the result of actions that would constitute a 1 28 sexual assault. 1 29 NEW SUBSECTION. 9A. "Victim" means a petitioner or a 1 30 person who is the victim of a sexual assault which resulted in 1 31 significant exposure, or the parent, guardian, or custodian of 1 32 such a victim if the victim is a minor, for whom the victim or 1 33 the peace officer files an application for a search warrant to 1 34 require the alleged offender to undergo an HIV-related test. 1 35 "Victim" includes an alleged victim. 2 1 Sec. 4. Section 709B.1, subsections 8 and 9, Code 1995, 2 2 are amended to read as follows: 2 3 8. "Sexual assault" means sexual abuse as defined in 2 4 section 709.1, or any other sexual offense by which a victim 2 5 has allegedly had sufficient contact with a convicted or an 2 6 alleged offender to be deemed a significant exposure. 2 7 9. "Significant exposure" means contact of the victim's 2 8 ruptured or broken skin or mucous membranes with the blood or 2 9 bodily fluids, other than tears, saliva, or perspiration of 2 10 the convicted or alleged offender. "Significant exposure" is 2 11 presumed to have occurred when there is a showing that there 2 12 was penetration of the convicted or alleged offender's penis 2 13 into the victim's vagina or anus, contact between the mouth 2 14 and genitalia, or contact between the genitalia of the 2 15 convicted or alleged offender and the genitalia or anus of the 2 16 victim. 2 17 Sec. 5. NEW SECTION. 709B.2A HIV-RELATED TEST &endash; ALLEGED 2 18 SEXUAL ASSAULT OFFENDER. 2 19 1. If a person is an alleged offender, a victim or a peace 2 20 officer may make application to the court for the issuance of 2 21 a search warrant, in accordance with chapter 808, for the 2 22 purpose of requiring the alleged offender to submit to an HIV- 2 23 related test, if all of the following conditions are met: 2 24 a. The application states that the victim or peace officer 2 25 believes that the sexual assault for which the alleged 2 26 offender is charged included sufficient contact between the 2 27 victim and the alleged offender to be deemed a significant 2 28 exposure pursuant to section 709B.1 and states the factual 2 29 basis for the belief that a significant exposure exists. 2 30 b. The authorized representative of the victim, the peace 2 31 officer, or the court sought to obtain written informed 2 32 consent to the testing from the alleged offender. 2 33 c. Written informed consent was not provided by the 2 34 alleged offender. 2 35 2. Upon receipt of the application the court shall: 3 1 a. Prior to the scheduling of a hearing on the 3 2 application, refer the victim for counseling by a victim 3 3 counselor or a person requested by the victim who is 3 4 authorized to provide the counseling required pursuant to 3 5 section 141.22, regarding the nature, reliability, and 3 6 significance of the HIV-related test and of the serologic 3 7 status of the alleged offender. 3 8 b. Schedule a hearing to be held as soon as is 3 9 practicable. 3 10 c. Cause written notice to be served on the alleged 3 11 offender who is the subject of the proceeding, in accordance 3 12 with the rules of civil procedure relating to the service of 3 13 original notice, or if the alleged offender is represented by 3 14 legal counsel, provide written notice to the alleged offender 3 15 and the alleged offender's legal counsel. 3 16 d. Provide for the appointment of legal counsel for an 3 17 alleged offender if the alleged offender desires but is 3 18 financially unable to employ counsel. 3 19 e. Furnish legal counsel with copies of the application. 3 20 3. a. A hearing under this section shall be conducted in 3 21 an informal manner consistent with orderly procedure and in 3 22 accordance with the Iowa rules of evidence. The hearing shall 3 23 be limited in scope to the review of the questions of fact 3 24 only as to the issue of whether the alleged sexual assault for 3 25 which the alleged offender is charged provided sufficient 3 26 contact between the victim and the alleged offender to be 3 27 deemed a significant exposure and thereby constitute probable 3 28 cause for the issuance of a search warrant. 3 29 b. In determining whether the contact should be deemed a 3 30 significant exposure, the court shall base the determination 3 31 on the application and the factual basis provided in the 3 32 application for the belief of the applicant that a significant 3 33 exposure exists. 3 34 c. The victim may testify at the hearing, but shall not be 3 35 compelled to testify. The court shall not consider the 4 1 refusal of a victim to testify at the hearing as material to 4 2 the court's decision regarding the issuance of a search 4 3 warrant. 4 4 d. The hearing shall be in camera unless the alleged 4 5 offender and the victim agree to a hearing in open court and 4 6 the court approves. The report of the hearing proceedings 4 7 shall be sealed and no report of the proceedings shall be 4 8 released to the public, except with the permission of all 4 9 parties and the approval of the court. 4 10 e. Stenographic notes or electronic or mechanical 4 11 recordings shall be taken of all court hearings unless waived 4 12 by the parties. 4 13 4. Following the hearing, the court shall issue a search 4 14 warrant to require that the alleged offender undergo HIV- 4 15 related testing if the court finds all of the following which 4 16 constitute probable cause for grounds to issue a search 4 17 warrant: 4 18 a. The alleged sexual assault constituted a significant 4 19 exposure. 4 20 b. An authorized representative of the victim, the peace 4 21 officer, or the court sought to obtain written informed 4 22 consent from the alleged offender. 4 23 c. Written informed consent was not provided by the 4 24 alleged offender. 4 25 5. An alleged offender who is required to undergo an HIV- 4 26 related test may appeal to the court for review of questions 4 27 of law only, but may appeal questions of fact if the findings 4 28 of fact are clearly erroneous. 4 29 Sec. 6. Section 709B.3, subsections 1, 4, 5, 14, and 15, 4 30 Code Supplement 1995, are amended to read as follows: 4 31 1. The physician or other practitioner who orders the test 4 32 of a convicted or alleged offender for HIV under this chapter 4 33 shall disclose the results of the test to the convicted or 4 34 alleged offender, and to the victim counselor or a person 4 35 requested by the victim who is authorized to provide the 5 1 counseling required pursuant to section 141.22, who shall 5 2 disclose the results to the petitioner. 5 3 4. Results of a test performed under this chapter, except 5 4 as provided in subsection 6, shall be disclosed only to the 5 5 physician or other practitioner who orders the test of the 5 6 convicted or alleged offender, the convicted or alleged 5 7 offender, the victim, the victim counselor or person requested 5 8 by the victim who is authorized to provide the counseling 5 9 required pursuant to section 141.22, the physician of the 5 10 victim if requested by the victim, and the parent, guardian, 5 11 or custodian of the victim, if the victim is a minor. Results 5 12 of a test performed under this chapter shall not be disclosed 5 13 to any other person without the written, informed consent of 5 14 the convicted or alleged offender. A person to whom the 5 15 results of a test have been disclosed under this chapter is 5 16 subject to the confidentiality provisions of section 141.23, 5 17 and shall not disclose the results to another person except as 5 18 authorized by section 141.23, subsection 1. 5 19 5. Notwithstanding subsection 4, test results shall not be 5 20 disclosed to a convicted or alleged offender who elects 5 21 against disclosure. 5 22 14. In addition to persons to whom disclosure of the 5 23 results of a convicted or alleged offender's HIV-related test 5 24 results is authorized under this chapter, the victim may also 5 25 disclose the results to the victim's spouse, persons with whom 5 26 the victim has engaged in vaginal, anal, or oral intercourse 5 27 subsequent to the sexual assault, or members of the victim's 5 28 family within the third degree of consanguinity. 5 29 15. A person to whom disclosure of a convicted or alleged 5 30 offender's HIV-related test results is authorized under this 5 31 chapter shall not disclose the results to any other person for 5 32 whom disclosure is not authorized under this chapter. A 5 33 person who intentionally or recklessly makes an unauthorized 5 34 disclosure under this chapter is subject to a civil penalty of 5 35 one thousand dollars. The attorney general or the attorney 6 1 general's designee may maintain a civil action to enforce this 6 2 chapter. Proceedings maintained under this subsection shall 6 3 provide for the anonymity of the test subject and all 6 4 documentation shall be maintained in a confidential manner. 6 5 EXPLANATION 6 6 This bill provides for the HIV-related testing of an 6 7 alleged offender who is charged with sexual assault, based 6 8 upon the application for and issuance of a search warrant to 6 9 require the testing. The bill provides for the holding of a 6 10 hearing on the application for a search warrant, prescribes 6 11 the conditions to be met if grounds for probable cause to 6 12 issue the search warrant are to be found, and makes 6 13 confidentiality provisions and penalties for unauthorized 6 14 disclosure of test results applicable. 6 15 LSB 3052SS 76 6 16 pf/jw/5.1
Text: SF02042 Text: SF02044 Text: SF02000 - SF02099 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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