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House File 2369

Partial Bill History

Bill Text

PAG LIN
  1  1                                         HOUSE FILE 2369   
  1  2  
  1  3                             AN ACT
  1  4 RELATING TO THE HUMAN IMMUNODEFICIENCY VIRUS INCLUDING THE
  1  5    TESTING OF AN ALLEGED OFFENDER FOR THE HUMAN IMMUNO-
  1  6    DEFICIENCY VIRUS, THE INTENTIONAL TRANSMISSION OF THE
  1  7    HUMAN IMMUNODEFICIENCY VIRUS, MAKING PENALTIES APPLICABLE,
  1  8    ESTABLISHING PENALTIES, AND PROVIDING FOR AN AFFIRMATIVE
  1  9    DEFENSE.  
  1 10 
  1 11 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  1 12 
  1 13    Section 1.  Section 135.11, subsection 24, Code Supplement
  1 14 1997, is amended to read as follows:
  1 15    24.  Adopt rules which provide for the testing of a
  1 16 convicted or alleged offender for the human immunodeficiency
  1 17 virus pursuant to chapter 709B.  The rules shall provide for
  1 18 the provision of counseling, health care, and support services
  1 19 to the victim.
  1 20    Sec. 2.  Section 141.23, subsection 1, paragraph i, Code
  1 21 1997, is amended to read as follows:
  1 22    i.  The convicted or alleged offender, the physician or
  1 23 other practitioner who orders the test of the convicted or
  1 24 alleged offender, the victim, the parent, guardian, or
  1 25 custodian of the victim if the victim is a minor, the
  1 26 physician of the victim, the victim counselor or person
  1 27 requested by the victim who is authorized to provide the
  1 28 counseling required pursuant to section 141.22, and the
  1 29 victim's spouse, persons with whom the victim has engaged in
  1 30 vaginal, anal, or oral intercourse subsequent to the sexual
  1 31 assault, or members of the victim's family within the third
  1 32 degree of consanguinity, and the county attorney who may use
  1 33 the results as evidence in the prosecution of sexual assault
  1 34 or prosecution of the offense of criminal transmission of HIV
  1 35 under chapter 709C.  For the purposes of this paragraph
  2  1 "victim" means victim as defined in section 709B.1.
  2  2    Sec. 3.  Section 709B.1, Code 1997, is amended by adding
  2  3 the following new subsections:
  2  4    NEW SUBSECTION.  1A.  "Alleged offender" means a person who
  2  5 has been charged with the commission of a sexual assault or a
  2  6 juvenile who has been charged in juvenile court with being a
  2  7 delinquent as the result of actions that would constitute a
  2  8 sexual assault.
  2  9    NEW SUBSECTION.  1B.  "Authorized representative" means an
  2 10 individual authorized by the victim to request an HIV-related
  2 11 test of a convicted or alleged offender who is any of the
  2 12 following:
  2 13    a.  The parent, guardian, or custodian of the victim if the
  2 14 victim is a minor.
  2 15    b.  The physician of the victim.
  2 16    c.  The victim counselor or person requested by the victim
  2 17 who is authorized to provide the counseling required pursuant
  2 18 to section 141.22.
  2 19    d.  The victim's spouse.
  2 20    e.  The victim's legal counsel.
  2 21    NEW SUBSECTION.  9A.  "Victim" means a petitioner or a
  2 22 person who is the victim of a sexual assault which resulted in
  2 23 significant exposure, or the parent, guardian, or custodian of
  2 24 such a victim if the victim is a minor, for whom the victim or
  2 25 the peace officer files an application for a search warrant to
  2 26 require the alleged offender to undergo an HIV-related test.
  2 27 "Victim" includes an alleged victim.
  2 28    Sec. 4.  Section 709B.1, subsections 8 and 9, Code 1997,
  2 29 are amended to read as follows:
  2 30    8.  "Sexual assault" means sexual abuse as defined in
  2 31 section 709.1, or any other sexual offense by which a victim
  2 32 has allegedly had sufficient contact with a convicted or an
  2 33 alleged offender to be deemed a significant exposure.
  2 34    9.  "Significant exposure" means contact of the victim's
  2 35 ruptured or broken skin or mucous membranes with the blood or
  3  1 bodily fluids, other than tears, saliva, or perspiration of
  3  2 the convicted or alleged offender.  "Significant exposure" is
  3  3 presumed to have occurred when there is a showing that there
  3  4 was penetration of the convicted or alleged offender's penis
  3  5 into the victim's vagina or anus, contact between the mouth
  3  6 and genitalia, or contact between the genitalia of the
  3  7 convicted or alleged offender and the genitalia or anus of the
  3  8 victim.
  3  9    Sec. 5.  Section 709B.2, Code 1997, is amended to read as
  3 10 follows:
  3 11    709B.2  HIV-RELATED TEST – CONVICTED OR ALLEGED SEXUAL
  3 12 ASSAULT OFFENDER.
  3 13    1.  If a person is convicted of sexual assault or
  3 14 adjudicated delinquent for an act of sexual assault, the
  3 15 county attorney, if requested by the petitioner, shall
  3 16 petition the court for an order requiring the convicted
  3 17 offender to submit to an HIV-related test, provided that all
  3 18 of the following conditions are met:
  3 19    a.  The sexual assault for which the offender was convicted
  3 20 or adjudicated delinquent included sufficient contact between
  3 21 the victim and the convicted offender to be deemed a
  3 22 significant exposure pursuant to section 709B.1.
  3 23    b.  The authorized representative of the petitioner, the
  3 24 county attorney, or the court sought to obtain written
  3 25 informed consent from the convicted offender to the testing.
  3 26    c.  Written informed consent was not provided by the
  3 27 convicted offender.
  3 28    2.  If a person is an alleged offender, the county
  3 29 attorney, if requested by the victim, shall make application
  3 30 to the court for the issuance of a search warrant, in
  3 31 accordance with chapter 808, for the purpose of requiring the
  3 32 alleged offender to submit to an HIV-related test, if all of
  3 33 the following conditions are met:
  3 34    a.  The application states that the victim believes that
  3 35 the sexual assault for which the alleged offender is charged
  4  1 included sufficient contact between the victim and the alleged
  4  2 offender to be deemed a significant exposure pursuant to
  4  3 section 709B.1 and states the factual basis for the belief
  4  4 that a significant exposure exists.
  4  5    b.  The authorized representative of the victim, the county
  4  6 attorney, or the court sought to obtain written informed
  4  7 consent to the testing from the alleged offender.
  4  8    c.  Written informed consent was not provided by the
  4  9 alleged offender.
  4 10    2. 3.  Upon receipt of the petition or application, the
  4 11 court shall:
  4 12    a.  Prior to the scheduling of a hearing, refer the victim
  4 13 for counseling by a victim counselor or a person requested by
  4 14 the victim who is authorized to provide the counseling
  4 15 required pursuant to section 141.22, regarding the nature,
  4 16 reliability, and significance of the HIV-related test and of
  4 17 the serologic status of the convicted offender.
  4 18    b.  Schedule a hearing to be held as soon as is
  4 19 practicable.
  4 20    c.  Cause written notice to be served on the convicted or
  4 21 alleged offender who is the subject of the proceeding, in
  4 22 accordance with the rules of civil procedure relating to the
  4 23 service of original notice, or if the convicted or alleged
  4 24 offender is represented by legal counsel, provide written
  4 25 notice to the convicted or alleged offender and the convicted
  4 26 or alleged offender's legal counsel.
  4 27    d.  Provide for the appointment of legal counsel for a
  4 28 convicted or alleged offender if the convicted or alleged
  4 29 offender desires but is financially unable to employ counsel.
  4 30    e.  Furnish legal counsel with copies of the petition or
  4 31 application, written informed consent, if obtained, and copies
  4 32 of all other documents related to the petition or application,
  4 33 including, but not limited to, the charges and orders.
  4 34    3. 4.  Unless a petitioner chooses to be represented by
  4 35 private counsel, the county attorney shall represent the
  5  1 victim's interest in all proceedings under this section.
  5  2    4. 5.  a.  A hearing under this section shall be conducted
  5  3 in an informal manner consistent with orderly procedure and in
  5  4 accordance with the Iowa rules of evidence.  The hearing shall
  5  5 be limited in scope to the review of questions of fact only as
  5  6 to the issue of whether the sexual assault for which the
  5  7 offender was convicted or adjudicated delinquent or for which
  5  8 the alleged offender was charged provided sufficient contact
  5  9 between the victim and the convicted or alleged offender to be
  5 10 deemed a significant exposure, and to questions of law.
  5 11    b.  In determining whether the contact should be deemed a
  5 12 significant exposure for a convicted offender, the court shall
  5 13 base the determination on the testimony presented during the
  5 14 proceedings on the sexual assault charge, the minutes of the
  5 15 testimony or other evidence included in the court record, or
  5 16 if a plea of guilty was entered, based upon the complaint or
  5 17 upon testimony provided during the hearing.  In determining
  5 18 whether the contact should be deemed a significant exposure
  5 19 for an alleged offender, the court shall base the
  5 20 determination on the application and the factual basis
  5 21 provided in the application for the belief of the applicant
  5 22 that a significant exposure exists.
  5 23    c.  The victim may testify at the hearing, but shall not be
  5 24 compelled to testify.  The court shall not consider the
  5 25 refusal of a victim to testify at the hearing as material to
  5 26 the court's decision regarding issuance of an order or search
  5 27 warrant requiring testing.
  5 28    d.  The hearing shall be in camera unless the convicted or
  5 29 alleged offender and the petitioner or victim agree to a
  5 30 hearing in open court and the court approves.  The report of
  5 31 the hearing proceedings shall be sealed and no report of the
  5 32 proceedings shall be released to the public, except with the
  5 33 permission of all parties and the approval of the court.
  5 34    e.  Stenographic notes or electronic or mechanical
  5 35 recordings shall be taken of all court hearings unless waived
  6  1 by the parties.
  6  2    5. 6.  Following the hearing, the court shall require a
  6  3 convicted or alleged offender to undergo an HIV-related test
  6  4 only if the petitioner or victim proves all of the following
  6  5 by a preponderance of the evidence:
  6  6    a.  The sexual assault constituted a significant exposure.
  6  7    b.  An authorized representative of the petitioner, the
  6  8 county attorney, or the court sought to obtain written
  6  9 informed consent from the convicted or alleged offender.
  6 10    c.  Written informed consent was not provided by the
  6 11 convicted or alleged offender.
  6 12    6. 7.  A convicted offender who is required to undergo an
  6 13 HIV-related test may appeal to the court for review of
  6 14 questions of law only, but may appeal questions of fact if the
  6 15 findings of fact are clearly erroneous.
  6 16    Sec. 6.  Section 709B.3, subsections 1, 4, 5, 6, 14, and
  6 17 15, Code 1997, are amended to read as follows:
  6 18    1.  The physician or other practitioner who orders the test
  6 19 of a convicted or alleged offender for HIV under this chapter
  6 20 shall disclose the results of the test to the convicted or
  6 21 alleged offender, and to the victim counselor or a person
  6 22 requested by the victim who is authorized to provide the
  6 23 counseling required pursuant to section 141.22, who shall
  6 24 disclose the results to the petitioner.
  6 25    4.  Results of a test performed under this chapter, except
  6 26 as provided in subsection 6, shall be disclosed only to the
  6 27 physician or other practitioner who orders the test of the
  6 28 convicted or alleged offender, the convicted or alleged
  6 29 offender, the victim, the victim counselor or person requested
  6 30 by the victim who is authorized to provide the counseling
  6 31 required pursuant to section 141.22, the physician of the
  6 32 victim if requested by the victim, and the parent, guardian,
  6 33 or custodian of the victim, if the victim is a minor, and the
  6 34 county attorney who filed the petition for HIV-related testing
  6 35 under this chapter, who may use the results to file charges of
  7  1 criminal transmission of HIV under chapter 709C.  Results of a
  7  2 test performed under this chapter shall not be disclosed to
  7  3 any other person without the written, informed consent of the
  7  4 convicted or alleged offender.  A person to whom the results
  7  5 of a test have been disclosed under this chapter is subject to
  7  6 the confidentiality provisions of section 141.23, and shall
  7  7 not disclose the results to another person except as
  7  8 authorized by section 141.23, subsection 1.
  7  9    5.  Notwithstanding subsection 4, test results shall not be
  7 10 disclosed to a convicted offender who elects against
  7 11 disclosure.
  7 12    6.  If testing is ordered under this chapter, the court
  7 13 shall also order periodic testing of the convicted offender
  7 14 during the period of incarceration, probation, or parole or of
  7 15 the alleged offender during a period of six months following
  7 16 the initial test if the physician or other practitioner who
  7 17 ordered the initial test of the convicted or alleged offender
  7 18 certifies that, based upon prevailing scientific opinion
  7 19 regarding the maximum period during which the results of an
  7 20 HIV-related test may be negative for a person after being HIV-
  7 21 infected, additional testing is necessary to determine whether
  7 22 the convicted or alleged offender was HIV-infected at the time
  7 23 the sexual assault or alleged sexual assault was perpetrated.
  7 24 The results of the test conducted pursuant to this subsection
  7 25 shall be released only to the physician or other practitioner
  7 26 who orders the test of the convicted or alleged offender, the
  7 27 convicted or alleged offender, the victim counselor or person
  7 28 requested by the victim who is authorized to provide the
  7 29 counseling required pursuant to section 141.22, who shall
  7 30 disclose the results to the petitioner, and the physician of
  7 31 the victim, if requested by the victim and the county attorney
  7 32 who may use the results as evidence in the prosecution of the
  7 33 sexual assault or in the prosecution of the offense of
  7 34 criminal transmission of HIV under chapter 709C.
  7 35    14.  In addition to persons to whom disclosure of the
  8  1 results of a convicted or alleged offender's HIV-related test
  8  2 results is authorized under this chapter, the victim may also
  8  3 disclose the results to the victim's spouse, persons with whom
  8  4 the victim has engaged in vaginal, anal, or oral intercourse
  8  5 subsequent to the sexual assault, or members of the victim's
  8  6 family within the third degree of consanguinity.
  8  7    15.  A person to whom disclosure of a convicted or alleged
  8  8 offender's HIV-related test results is authorized under this
  8  9 chapter shall not disclose the results to any other person for
  8 10 whom disclosure is not authorized under this chapter.  A
  8 11 person who intentionally or recklessly makes an unauthorized
  8 12 disclosure under this chapter is subject to a civil penalty of
  8 13 one thousand dollars.  The attorney general or the attorney
  8 14 general's designee may maintain a civil action to enforce this
  8 15 chapter.  Proceedings maintained under this subsection shall
  8 16 provide for the anonymity of the test subject and all
  8 17 documentation shall be maintained in a confidential manner.
  8 18    Sec. 7.  NEW SECTION.  709C.1  CRIMINAL TRANSMISSION OF
  8 19 HUMAN IMMUNODEFICIENCY VIRUS.
  8 20    1.  A person commits criminal transmission of the human
  8 21 immunodeficiency virus if the person, knowing that the
  8 22 person's human immunodeficiency virus status is positive, does
  8 23 any of the following:
  8 24    a.  Engages in intimate contact with another person.
  8 25    b.  Transfers, donates, or provides the person's blood,
  8 26 tissue, semen, organs, or other potentially infectious bodily
  8 27 fluids for transfusion, transplantation, insemination, or
  8 28 other administration to another person.
  8 29    c.  Dispenses, delivers, exchanges, sells, or in any other
  8 30 way transfers to another person any nonsterile intravenous or
  8 31 intramuscular drug paraphernalia previously used by the person
  8 32 infected with the human immunodefficiency virus.
  8 33    2.  For the purposes of this section:
  8 34    a.  "Human immunodeficiency virus" means the human
  8 35 immunodeficiency virus identified as the causative agent of
  9  1 acquired immune deficiency syndrome.
  9  2    b.  "Intimate contact" means the intentional exposure of
  9  3 the body of one person to a bodily fluid of another person in
  9  4 a manner that could result in the transmission of the human
  9  5 immunodeficiency virus.
  9  6    c.  "Intravenous or intramuscular drug paraphernalia" means
  9  7 any equipment, product, or material of any kind which is
  9  8 peculiar to and marketed for use in injecting a substance into
  9  9 or withdrawing a bodily fluid from the human body.
  9 10    3.  Criminal transmission of the human immunodeficiency
  9 11 virus is a class "B" felony.
  9 12    4.  This section shall not be construed to require that an
  9 13 infection with the human immunodeficiency virus has occurred
  9 14 for a person to have committed criminal transmission of the
  9 15 human immunodeficiency virus.
  9 16    5.  It is an affirmative defense that the person exposed to
  9 17 the human immunodeficiency virus knew that the infected person
  9 18 had a positive human immunodeficiency virus status at the time
  9 19 of the action of exposure, knew that the action of exposure
  9 20 could result in transmission of the human immunodeficiency
  9 21 virus, and consented to the action of exposure with that
  9 22 knowledge.  
  9 23 
  9 24 
  9 25                                                             
  9 26                               RON J. CORBETT
  9 27                               Speaker of the House
  9 28 
  9 29 
  9 30                                                             
  9 31                               MARY E. KRAMER
  9 32                               President of the Senate
  9 33 
  9 34    I hereby certify that this bill originated in the House and
  9 35 is known as House File 2369, Seventy-seventh General Assembly.
 10  1 
 10  2 
 10  3                                                             
 10  4                               ELIZABETH ISAACSON
 10  5                               Chief Clerk of the House
 10  6 Approved                , 1998
 10  7 
 10  8 
 10  9                         
 10 10 TERRY E. BRANSTAD
 10 11 Governor
     

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