Text: HF02368 Text: HF02370 Text: HF02300 - HF02399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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,andthe 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. 4 102.3. 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. 4 343.4. 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 24.5. 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 25.6. 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. 6 126.7. 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,andthe 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 95. Notwithstanding subsection 4, test results shall not be7 10disclosed to a convicted offender who elects against7 11disclosure.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,andthe 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
Text: HF02368 Text: HF02370 Text: HF02300 - HF02399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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