Text: HF00075 Text: HF00077 Text: HF00000 - HF00099 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 135.11, subsection 24, Code 1997, 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 1997, 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 707.11, Code 1997, is amended to read as 1 23 follows: 1 24 707.11 ATTEMPT TO COMMIT MURDER. 1 25 1. A person commits a class "B" felony when, with the 1 26 intent to cause the death of another person and not under 1 27 circumstances which would justify the person's actions, the 1 28 person does any act by which the person expects to set in 1 29 motion a force or chain of events which will cause or result 1 30 in the death of the other person. 1 31 2. For the purposes of this section, "any act" includes an 1 32 act engaged in by an actor in a manner capable of transmitting 1 33 the human immunodeficiency virus, as determined by the centers 1 34 for disease control and prevention of the United States 1 35 department of health and human services and adopted by rule of 2 1 the Iowa department of public health, when the actor knew at 2 2 the time of the commission of the act that the actor's human 2 3 immunodeficiency virus status was positive. 2 4 It is not a defense to an indictment for attempt to commit 2 5 murder that the acts proved could not have caused the death of 2 6 any person, provided that the actor intended to cause the 2 7 death of some person by so acting, and the actor's 2 8 expectations were not unreasonable in the light of the facts 2 9 known to the actor. 2 10 Sec. 4. Section 709B.1, Code 1997, is amended by adding 2 11 the following new subsections: 2 12 NEW SUBSECTION. 1A. "Alleged offender" means a person who 2 13 has been charged with the commission of a sexual assault or a 2 14 juvenile who has been charged in juvenile court with being a 2 15 delinquent as the result of alleged actions that would 2 16 constitute a sexual assault. 2 17 NEW SUBSECTION. 9A. "Victim" means a petitioner or a 2 18 person who is the victim of a sexual assault which resulted in 2 19 significant exposure, or the parent, guardian, or custodian of 2 20 such a victim if the victim is a minor, for whom the victim or 2 21 the peace officer files an application for a search warrant to 2 22 require the alleged offender to undergo an HIV-related test. 2 23 "Victim" includes an alleged victim. 2 24 Sec. 5. Section 709B.1, subsections 8 and 9, Code 1997, 2 25 are amended to read as follows: 2 26 8. "Sexual assault" means sexual abuse as defined in 2 27 section 709.1, or any other sexual offense by which a victim 2 28 has allegedly had sufficient contact with a convicted or an 2 29 alleged offender to be deemed a significant exposure. 2 30 9. "Significant exposure" means contact of the victim's 2 31 ruptured or broken skin or mucous membranes with the blood or 2 32 bodily fluids, other than tears, saliva, or perspiration of 2 33 the convicted or alleged offender. "Significant exposure" is 2 34 presumed to have occurred when there is a showing that there 2 35 was penetration of the convicted or alleged offender's penis 3 1 into the victim's vagina or anus, contact between the mouth 3 2 and genitalia, or contact between the genitalia of the 3 3 convicted or alleged offender and the genitalia or anus of the 3 4 victim. 3 5 Sec. 6. Section 709B.2, subsection 2, paragraph e, Code 3 6 1997, is amended to read as follows: 3 7 e. Furnishlegal counsel withthe alleged offender with 3 8 copies of the petition or, if the alleged offender is 3 9 represented by legal counsel, provide copies of the petition 3 10 to the alleged offender and the alleged offender's legal 3 11 counsel. 3 12 Sec. 7. NEW SECTION. 709B.2A HIV-RELATED TEST – ALLEGED 3 13 SEXUAL ASSAULT OFFENDER. 3 14 1. If a person is an alleged offender, a victim or a peace 3 15 officer may make application to the court for the issuance of 3 16 a search warrant, in accordance with chapter 808, for the 3 17 purpose of requiring the alleged offender to submit to an HIV- 3 18 related test, if all of the following conditions are met: 3 19 a. The application states that the victim or peace officer 3 20 believes that the sexual assault for which the alleged 3 21 offender is charged included sufficient contact between the 3 22 victim and the alleged offender to be deemed a significant 3 23 exposure pursuant to section 709B.1 and states the factual 3 24 basis for the belief that a significant exposure exists. 3 25 b. The application states that the authorized 3 26 representative of the victim, the peace officer, or the court 3 27 sought to obtain written informed consent to the testing from 3 28 the alleged offender. 3 29 c. The application states that written informed consent 3 30 was not provided by the alleged offender. 3 31 2. Upon receipt of the application the court shall: 3 32 a. Prior to the scheduling of a hearing on the 3 33 application, refer the victim for counseling by a victim 3 34 counselor or a person requested by the victim who is 3 35 authorized to provide the counseling required pursuant to 4 1 section 141.22, regarding the nature, reliability, and 4 2 significance of the HIV-related test and of the serologic 4 3 status of the alleged offender. 4 4 b. Schedule a hearing to be held as soon as is 4 5 practicable. 4 6 c. Cause written notice to be served on the alleged 4 7 offender who is the subject of the proceeding, in accordance 4 8 with the rules of civil procedure relating to the service of 4 9 original notice, or if the alleged offender is represented by 4 10 legal counsel, provide written notice to the alleged offender 4 11 and the alleged offender's legal counsel. 4 12 d. Provide for the appointment of legal counsel for an 4 13 alleged offender if the alleged offender desires but is 4 14 financially unable to employ counsel. 4 15 e. Furnish the alleged offender with copies of the 4 16 application or, if the alleged offender is represented by 4 17 legal counsel, provide copies of the application to the 4 18 alleged offender and the alleged offender's legal counsel. 4 19 3. a. A hearing under this section shall be conducted in 4 20 an informal manner consistent with orderly procedure and in 4 21 accordance with the Iowa rules of evidence. The hearing shall 4 22 be limited in scope to the review of questions of fact only as 4 23 to the issue of whether the alleged sexual assault for which 4 24 the alleged offender is charged provided sufficient contact 4 25 between the victim and the alleged offender to be deemed a 4 26 significant exposure and thereby constitutes probable cause 4 27 for the issuance of a search warrant. 4 28 b. In determining whether the contact should be deemed a 4 29 significant exposure, the court shall base the determination 4 30 on the application and the factual basis provided in the 4 31 application for the belief of the applicant that a significant 4 32 exposure occurred. 4 33 c. The victim may testify at the hearing, but shall not be 4 34 compelled to testify. The court shall not consider the 4 35 refusal of a victim to testify at the hearing as material to 5 1 the court's decision regarding the issuance of a search 5 2 warrant. 5 3 d. The hearing shall be in camera unless the alleged 5 4 offender and the victim agree to a hearing in open court and 5 5 the court approves. The report of the hearing proceedings 5 6 shall be sealed and the report shall not be released to the 5 7 public, except with the permission of all parties and the 5 8 approval of the court. 5 9 e. Stenographic notes or electronic or mechanical 5 10 recordings shall be taken by the court of all court hearings 5 11 unless waived by the parties. 5 12 4. Following the hearing, the court shall issue a search 5 13 warrant to require that the alleged offender undergo HIV- 5 14 related testing if the court finds that probable cause exists 5 15 to issue a search warrant. Probable cause exists if the court 5 16 finds all of the following: 5 17 a. The alleged sexual assault constituted a significant 5 18 exposure. 5 19 b. An authorized representative of the victim, the peace 5 20 officer, or the court sought to obtain written informed 5 21 consent to the testing from the alleged offender. 5 22 c. Written informed consent was not provided by the 5 23 alleged offender. 5 24 5. An alleged offender who is required to undergo an HIV- 5 25 related test may appeal to the court for review of questions 5 26 of law only, but may appeal questions of fact if the findings 5 27 of fact are clearly erroneous. 5 28 Sec. 8. Section 709B.3, subsections 1, 4, 5, 14, and 15, 5 29 Code 1997, are amended to read as follows: 5 30 1. The physician or other practitioner who orders the test 5 31 of a convicted or alleged offender for HIV under this chapter 5 32 shall disclose the results of the test to the convicted or 5 33 alleged offender, and to the victim counselor or a person 5 34 requested by the victim who is authorized to provide the 5 35 counseling required pursuant to section 141.22, who shall 6 1 disclose the results to the petitioner. 6 2 4. Results of a test performed under this chapter, except 6 3 as provided in subsection 6, shall be disclosed only to the 6 4 physician or other practitioner who orders the test of the 6 5 convicted or alleged offender, the convicted or alleged 6 6 offender, the victim, the victim counselor or person requested 6 7 by the victim who is authorized to provide the counseling 6 8 required pursuant to section 141.22, the physician of the 6 9 victim if requested by the victim, and the parent, guardian, 6 10 or custodian of the victim, if the victim is a minor. Results 6 11 of a test performed under this chapter shall not be disclosed 6 12 to any other person without the written, informed consent of 6 13 the convicted or alleged offender. A person to whom the 6 14 results of a test have been disclosed under this chapter is 6 15 subject to the confidentiality provisions of section 141.23, 6 16 and shall not disclose the results to another person except as 6 17 authorized by section 141.23, subsection 1. 6 18 5. Notwithstanding subsection 4, test results shall not be 6 19 disclosed to a convicted or alleged offender who elects 6 20 against disclosure. 6 21 14. In addition to persons to whom disclosure of the 6 22 results of a convicted or alleged offender's HIV-related test 6 23 results is authorized under this chapter, the victim may also 6 24 disclose the results to the victim's spouse, persons with whom 6 25 the victim has engaged in vaginal, anal, or oral intercourse 6 26 subsequent to the sexual assault, or members of the victim's 6 27 family within the third degree of consanguinity. 6 28 15. A person to whom disclosure of a convicted or alleged 6 29 offender's HIV-related test results is authorized under this 6 30 chapter shall not disclose the results to any other person for 6 31 whom disclosure is not authorized under this chapter. A 6 32 person who intentionally or recklessly makes an unauthorized 6 33 disclosure under this chapter is subject to a civil penalty of 6 34 one thousand dollars. The attorney general or the attorney 6 35 general's designee may maintain a civil action to enforce this 7 1 chapter. Proceedings maintained under this subsection shall 7 2 provide for the anonymity of the test subject and all 7 3 documentation shall be maintained in a confidential manner. 7 4 EXPLANATION 7 5 This bill provides for the HIV-related testing of an 7 6 alleged offender who is charged with sexual assault, based 7 7 upon the application for and issuance of a search warrant to 7 8 require the testing. The bill provides for a hearing on the 7 9 application for a search warrant, prescribes the grounds for 7 10 probable cause to issue the search warrant, and makes 7 11 confidentiality provisions and penalties for unauthorized 7 12 disclosure of test results applicable. The bill also makes a 7 13 technical correction in the existing Code chapter 709B 7 14 relating to provision of the petition for an order for testing 7 15 to the alleged offender as well as to the alleged offender's 7 16 legal counsel. 7 17 The bill also includes the knowing transmission of the 7 18 human immunodeficiency virus as attempted murder, which is a 7 19 class "B" felony. 7 20 LSB 1348YH 77 7 21 pf/jw/5
Text: HF00075 Text: HF00077 Text: HF00000 - HF00099 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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