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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 709B.1, Code 1997, 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 alleged actions that would
1 28 constitute a 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 1997,
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 – 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 application states that the authorized
2 31 representative of the victim, the peace officer, or the court
2 32 sought to obtain written informed consent to the testing from
2 33 the alleged offender.
2 34 c. The application states that written informed consent
2 35 was not provided by the alleged offender.
3 1 2. Upon receipt of the application the court shall:
3 2 a. Prior to the scheduling of a hearing on the
3 3 application, refer the victim for counseling by a victim
3 4 counselor or a person requested by the victim who is
3 5 authorized to provide the counseling required pursuant to
3 6 section 141.22, regarding the nature, reliability, and
3 7 significance of the HIV-related test and of the serologic
3 8 status of the alleged offender.
3 9 b. Schedule a hearing to be held as soon as is
3 10 practicable.
3 11 c. Cause written notice to be served on the alleged
3 12 offender who is the subject of the proceeding, in accordance
3 13 with the rules of civil procedure relating to the service of
3 14 original notice, or if the alleged offender is represented by
3 15 legal counsel, provide written notice to the alleged offender
3 16 and the alleged offender's legal counsel.
3 17 d. Provide for the appointment of legal counsel for an
3 18 alleged offender if the alleged offender desires but is
3 19 financially unable to employ counsel.
3 20 e. Furnish the alleged offender with copies of the
3 21 application or, if the alleged offender is represented by
3 22 legal counsel, furnish both the alleged offender and legal
3 23 counsel with copies of the application.
3 24 3. a. A hearing under this section shall be conducted in
3 25 an informal manner consistent with orderly procedure and in
3 26 accordance with the Iowa rules of evidence. The hearing shall
3 27 be limited in scope to the review of questions of fact only as
3 28 to the issue of whether the alleged sexual assault for which
3 29 the alleged offender is charged provided sufficient contact
3 30 between the victim and the alleged offender to be deemed a
3 31 significant exposure and thereby constitutes probable cause
3 32 for the issuance of a search warrant.
3 33 b. In determining whether the contact should be deemed a
3 34 significant exposure, the court shall base the determination
3 35 on the application and the factual basis provided in the
4 1 application for the belief of the applicant that a significant
4 2 exposure occurred.
4 3 c. The victim may testify at the hearing, but shall not be
4 4 compelled to testify. The court shall not consider the
4 5 refusal of a victim to testify at the hearing as material to
4 6 the court's decision regarding the issuance of a search
4 7 warrant.
4 8 d. The hearing shall be in camera unless the alleged
4 9 offender and the victim agree to a hearing in open court and
4 10 the court approves. The report of the hearing proceedings
4 11 shall be sealed and the report shall not be released to the
4 12 public, except with the permission of all parties and the
4 13 approval of the court.
4 14 e. Stenographic notes or electronic or mechanical
4 15 recordings shall be taken by the court of all court hearings
4 16 unless waived by the parties.
4 17 4. Following the hearing, the court shall issue a search
4 18 warrant to require that the alleged offender undergo HIV-
4 19 related testing if the court finds that probable cause exists
4 20 to issue a search warrant. Probable cause exists if the court
4 21 finds all of the following:
4 22 a. The alleged sexual assault constituted a significant
4 23 exposure.
4 24 b. An authorized representative of the victim, the peace
4 25 officer, or the court sought to obtain written informed
4 26 consent to the testing from the alleged offender.
4 27 c. Written informed consent was not provided by the
4 28 alleged offender.
4 29 5. An alleged offender who is required to undergo an HIV-
4 30 related test may appeal to the court for review of questions
4 31 of law only, but may appeal questions of fact if the findings
4 32 of fact are clearly erroneous.
4 33 Sec. 6. Section 709B.3, subsections 1, 4, 5, 14, and 15,
4 34 Code 1997, are amended to read as follows:
4 35 1. The physician or other practitioner who orders the test
5 1 of a convicted or alleged offender for HIV under this chapter
5 2 shall disclose the results of the test to the convicted or
5 3 alleged offender, and to the victim counselor or a person
5 4 requested by the victim who is authorized to provide the
5 5 counseling required pursuant to section 141.22, who shall
5 6 disclose the results to the petitioner.
5 7 4. Results of a test performed under this chapter, except
5 8 as provided in subsection 6, shall be disclosed only to the
5 9 physician or other practitioner who orders the test of the
5 10 convicted or alleged offender, the convicted or alleged
5 11 offender, the victim, the victim counselor or person requested
5 12 by the victim who is authorized to provide the counseling
5 13 required pursuant to section 141.22, the physician of the
5 14 victim if requested by the victim, and the parent, guardian,
5 15 or custodian of the victim, if the victim is a minor. Results
5 16 of a test performed under this chapter shall not be disclosed
5 17 to any other person without the written, informed consent of
5 18 the convicted or alleged offender. A person to whom the
5 19 results of a test have been disclosed under this chapter is
5 20 subject to the confidentiality provisions of section 141.23,
5 21 and shall not disclose the results to another person except as
5 22 authorized by section 141.23, subsection 1.
5 23 5. Notwithstanding subsection 4, test results shall not be
5 24 disclosed to a convicted or alleged offender who elects
5 25 against disclosure.
5 26 14. In addition to persons to whom disclosure of the
5 27 results of a convicted or alleged offender's HIV-related test
5 28 results is authorized under this chapter, the victim may also
5 29 disclose the results to the victim's spouse, persons with whom
5 30 the victim has engaged in vaginal, anal, or oral intercourse
5 31 subsequent to the sexual assault, or members of the victim's
5 32 family within the third degree of consanguinity.
5 33 15. A person to whom disclosure of a convicted or alleged
5 34 offender's HIV-related test results is authorized under this
5 35 chapter shall not disclose the results to any other person for
6 1 whom disclosure is not authorized under this chapter. A
6 2 person who intentionally or recklessly makes an unauthorized
6 3 disclosure under this chapter is subject to a civil penalty of
6 4 one thousand dollars. The attorney general or the attorney
6 5 general's designee may maintain a civil action to enforce this
6 6 chapter. Proceedings maintained under this subsection shall
6 7 provide for the anonymity of the test subject and all
6 8 documentation shall be maintained in a confidential manner.
6 9 Sec. 7. NEW SECTION. 910.3B RESTITUTION FOR DEATH OF
6 10 VICTIM.
6 11 1. In all criminal cases in which the offender is
6 12 convicted of a felony in which the act or acts committed by
6 13 the offender caused the death of another person, in addition
6 14 to the amount determined to be payable and ordered to be paid
6 15 to a victim for pecuniary damages, as defined under section
6 16 910.1, and determined under section 910.3, the court shall
6 17 also order the offender to pay one hundred fifty thousand
6 18 dollars in restitution to the victim's estate. Payment of the
6 19 additional amount shall have the same priority as payment of a
6 20 victim's pecuniary damages under section 910.2, in the
6 21 offender's plan for restitution.
6 22 2. An award under this section does not preclude or
6 23 supersede the right of a victim's estate to bring a civil
6 24 action against the offender for damages arising out of the
6 25 same facts or event.
6 26 3. An offender who is ordered to pay a victim's estate
6 27 under this section is precluded from denying the elements of
6 28 the felony offense which resulted in the order for payment in
6 29 any subsequent civil action for damages arising out of the
6 30 same facts or event.
6 31 EXPLANATION
6 32 This bill provides for the HIV-related testing of an
6 33 alleged offender who is charged with sexual assault, based
6 34 upon the application for and issuance of a search warrant to
6 35 require the testing. The bill provides for a hearing on the
7 1 application for a search warrant, prescribes the grounds for
7 2 probable cause to issue the search warrant, and makes
7 3 confidentiality provisions and penalties for unauthorized
7 4 disclosure of test results applicable.
7 5 The bill also provides for payment of $150,000 by an
7 6 offender, in addition to any orders for restitution for
7 7 pecuniary damages, to the estates of persons whose deaths are
7 8 caused by the offender's felonious criminal acts. The order
7 9 for payment of $150,000 in the criminal case will not preclude
7 10 or prevent the victim's estate from pursuing civil remedies
7 11 for damages arising out of the same facts or event. An
7 12 offender who is ordered to make the $150,000 payment is
7 13 estopped from denying the elements of the felony offense which
7 14 caused the victim's death in any subsequent civil proceedings
7 15 for damages arising out of the same facts or event.
7 16 LSB 1512XL 77
7 17 lh/jw/5
Text: SSB00036 Text: SSB00038 Text: SSB00000 - SSB00099 Text: SSB Index Bills and Amendments: General Index Bill History: General Index
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