SF 2341 (LSB 5194SV (1) 90)

SENATE FILE 2341

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO SF 2067)

A BILL FOR

An Act relating to victims of sexual assault including sexual abuse evidence, notification of rights, HIV-related testing of a convicted or alleged assailant, and testing, reporting, and counseling of a victim, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 709.10, subsections 6 and 7, Code 2024, are amended to read as follows:
   6.  The law enforcement agency shall store the kit in a clean, dry location for a minimum of fifteen twenty years, or in the case of a minor victim for a minimum of fifteen years after the minor reaches the age of majority the lifetime of the minor victim, even if the reported victim of sexual abuse has not filed a criminal complaint.
   7.  Prior to the disposal of a kit by a law enforcement agency, the law enforcement agency shall notify the reported victim of in writing, not later than sixty days before the intended date of disposal of the kit, the reason for disposal of the kit, and the options that remain available for retention and analysis of the kit, if any. The law enforcement agency shall obtain written approval from the appropriate county attorney and retain that approval in the victim’s case file prior to disposal. Any kit disposed of shall be documented by a law enforcement agency in the kit tracking system within forty-eight hours of disposal.  Upon written request of the reported victim, the law enforcement agency shall provide further preservation of the kit or its probative contents.
    Sec. 2.  Section 709.22, subsection 1, paragraph c, Code 2024, is amended to read as follows:
   c.  Providing a victim with immediate and adequate notice of the victim’s rights. The notice shall consist of handing the victim a document that includes the telephone numbers of shelters, support groups, and crisis lines operating in the area and contains the following statement of rights written in English and Spanish; asking the victim to read the document; and asking whether the victim understands the following rights:
  [1]  You have the right to ask the court for help with any of the following on a temporary basis:

  [a]  Keeping your attacker away from you, your home, and your place of work. 

  [b]  The right to stay at your home without interference from your attacker. 

  [c]  The right to seek a no-contact order under Iowa Code section 664A.3 or 915.22, if your attacker is arrested for sexual assault.

  [2]  You have the right to register as a victim with the county attorney under Iowa Code section 915.12.

  [3]  You have the right to file a complaint for threats, assaults, or other related crimes.

  [4]  You have the right to seek restitution against your attacker for harm to you or your property.

  [5]  You have the right to apply for victim compensation.

  [6]  You have the right to contact the county attorney or local law enforcement to determine the status of your case.

  [7]  If you are in need of medical treatment, you have the right to request that the officer present assist you in obtaining transportation to the nearest hospital or otherwise assist you.

  [8]  You have the right to a sexual assault examination performed at state expense and the right not to be prevented from receiving a sexual assault examination.  If you choose to have a sexual assault examination:

  [a]  You have the right to have a sexual assault examination kit or its probative contents preserved, without charge, for twenty years, or in the case of a minor victim, for the lifetime of the minor victim. This is your right even if you do not file a criminal complaint, pursuant to Iowa Code section 709.10, subsection 6.

  [b]  You have the right to be informed of the results of a sexual examination kit if such disclosure will not impede or compromise an ongoing investigation.

  [c]  You have the right to be informed of the status and location of a sexual assault evidence collection kit.

  [d]  At least sixty days prior to the intended disposal of your sexual assault examination kit, you have the right to be notified in writing by a law enforcement agency of the intended disposal. This notice is required so that you can make a written request for further preservation of the kit or its probative contents.

  [9]  You have the right to request the presence of a victim counselor, as defined in Iowa Code section 915.20A, at any proceeding related to an assault including a medical examination.

  [10]  If you believe that police protection is needed for your physical safety, you have the right to request that the officer present remain at the scene until you and other affected parties can leave or until safety is otherwise ensured.
    Sec. 3.  Section 915.42, Code 2024, is amended to read as follows:
   915.42  Right to HIV-testing HIV testing of convicted or alleged assailant.
   1.  Unless a petitioner chooses to be represented by private counsel, the county attorney shall represent the victim’s interest in all proceedings under this subchapter.
   2.  If a person is convicted of sexual assault or adjudicated delinquent for an act of sexual assault, the county attorney, if requested by the petitioner, shall petition the court for an order requiring the convicted offender to submit to an HIV-related test, provided that all of the following conditions are met:  A person who is an alleged offender shall, at the direction of the court upon the court’s own motion or upon the request of the victim of the alleged offense, undergo a standard diagnostic test approved by the United States food and drug administration for HIV infection and other sexually transmitted infections. If the person refuses to submit voluntarily to the test, the court shall order the person to submit to the test. On request of the victim of the alleged offense, the court shall order the defendant to undergo the test within forty-eight hours after a charge for the offense is presented against the defendant.
   a.  The sexual assault for which the offender was convicted or adjudicated delinquent included sufficient contact between the victim and the convicted offender to be deemed a significant exposure pursuant to section 915.40.
   b.  The authorized representative of the petitioner, the county attorney, or the court sought to obtain written informed consent from the convicted offender to the testing.
   c.  Written informed consent was not provided by the convicted offender.
   3.  If a person is an alleged offender, the county attorney, if requested by the victim, shall make application to the court for the issuance of a search warrant, in accordance with chapter 808, for the purpose of requiring the alleged offender to submit to an HIV-related test, if all of the following conditions are met:  If the victim requests testing of the defendant and a law enforcement agency is unable to locate the defendant during the forty-eight-hour period provided in subsection 2, the running of the forty-eight-hour period is tolled until a law enforcement agency locates the defendant and the defendant is present in the jurisdiction.
   a.  The application states that the victim believes that the sexual assault for which the alleged offender is charged included sufficient contact between the victim and the alleged offender to be deemed a significant exposure pursuant to section 915.40 and states the factual basis for the belief that a significant exposure exists.
   b.  The authorized representative of the victim, the county attorney, or the court sought to obtain written informed consent to the testing from the alleged offender.
   c.  Written informed consent was not provided by the alleged offender.
   4.  Upon receipt of the petition or application filed under subsection 2 or 3, the court shall:
   a.  Prior to the scheduling of a hearing, refer the victim for counseling by a victim counselor or a person requested by the victim to provide counseling regarding the nature, reliability, and significance of the HIV-related test and of the serologic status of the convicted or alleged offender.
   b.  Schedule a hearing to be held as soon as is practicable.
   c.  Cause written notice to be served on the convicted or alleged offender who is the subject of the proceeding, in accordance with the rules of civil procedure relating to the service of original notice, or if the convicted or alleged offender is represented by legal counsel, provide written notice to the convicted or alleged offender and the convicted or alleged offender’s legal counsel.
   d.  Provide for the appointment of legal counsel for a convicted or alleged offender if the convicted or alleged offender desires but is financially unable to employ counsel.
   e.  Furnish legal counsel with copies of the petition or application, written informed consent, if obtained, and copies of all other documents related to the petition or application, including, but not limited to, the charges and orders.
   5.  a.  A hearing under this section shall be conducted in an informal manner consistent with orderly procedure and in accordance with the Iowa rules of evidence. The hearing shall be limited in scope to the review of questions of fact only as to the issue of whether the sexual assault for which the offender was convicted or adjudicated delinquent or for which the alleged offender was charged provided sufficient contact between the victim and the convicted or alleged offender to be deemed a significant exposure, and to questions of law.
   b.  In determining whether the contact should be deemed a significant exposure for a convicted offender, the court shall base the determination on the testimony presented during the proceedings on the sexual assault charge, the minutes of the testimony or other evidence included in the court record, or if a plea of guilty was entered, based upon the complaint or upon testimony provided during the hearing. In determining whether the contact should be deemed a significant exposure for an alleged offender, the court shall base the determination on the application and the factual basis provided in the application for the belief of the applicant that a significant exposure exists.
   c.  The victim may testify at the hearing but shall not be compelled to testify. The court shall not consider the refusal of a victim to testify at the hearing as material to the court’s decision regarding issuance of an order or search warrant requiring testing.
   d.  The hearing shall be in camera unless the convicted or alleged offender and the petitioner or victim agree to a hearing in open court and the court approves. The report of the hearing proceedings shall be sealed and no report of the proceedings shall be released to the public, except with the permission of all parties and the approval of the court.
   e.  Stenographic notes or electronic or mechanical recordings shall be taken of all court hearings unless waived by the parties.
   6.  Following the hearing, the court shall require a convicted or alleged offender to undergo an HIV-related test only if the petitioner or victim proves all of the following by a preponderance of the evidence:
   a.  The sexual assault constituted a significant exposure.
   b.  An authorized representative of the petitioner or victim, the county attorney, or the court sought to obtain written informed consent from the convicted or alleged offender.
   c.  Written informed consent was not provided by the convicted or alleged offender.
   7.  A convicted offender who is required to undergo an HIV-related test may appeal to the court for review of questions of law only, but may appeal questions of fact if the findings of fact are clearly erroneous.
    Sec. 4.  Section 915.43, Code 2024, is amended to read as follows:
   915.43  Testing, reporting, and counseling —— penalties.
   1.  The physician or other practitioner who orders the test of a convicted or alleged offender for HIV results of a test ordered under this subchapter shall disclose the results of the test be disclosed to the convicted or alleged offender, and to the victim counselor or a person requested by the victim to provide counseling regarding the HIV-related test and results who shall disclose the results to the petitioner as soon as practicable.
   2.  All testing under this chapter shall be accompanied by counseling as required under section 141A.7.
   3.  Subsequent testing arising out of the same incident of exposure shall be conducted in accordance with the procedural and confidentiality requirements of this subchapter.
   4.  3.  Results of a test performed under this subchapter, except as provided in subsection 13 11, shall be disclosed only to the physician or other practitioner who orders performs the test of the convicted or alleged offender; the convicted or alleged offender; the victim; the victim counselor or person requested by the victim to provide counseling regarding the HIV-related test and results; the physician of the victim if requested by the victim; the parent, guardian, or custodian of the victim, if the victim is a minor; and the county attorney who filed the petition for HIV-related testing under this chapter. Results of a test performed under this subchapter shall not be disclosed to any other person without the written informed consent of the convicted or alleged offender. A person to whom the results of a test have been disclosed under this subchapter is subject to the confidentiality provisions of section 141A.9, and shall not disclose the results to another person except as authorized by section 141A.9, subsection 2, paragraph “i”.
   5.  4.  If testing is ordered under this subchapter, the court shall also order periodic testing of the convicted or alleged offender prior to trial and during the period of incarceration, probation, or parole or of the alleged offender during a period of six months following the initial test if the physician or other practitioner who ordered the initial test of the convicted or alleged offender certifies that, based upon prevailing scientific opinion regarding the maximum period during which the results of an HIV-related test may be negative for a person after being HIV-infected, additional testing is necessary to determine whether the convicted or alleged offender was HIV-infected at the time the sexual assault or alleged sexual assault was perpetrated as medically necessary. The results of the test tests conducted pursuant to this subsection shall be released only to the physician or other practitioner who orders performs the test of the convicted or alleged offender,; the convicted or alleged offender,; the victim counselor or person requested by the victim to provide the counseling regarding the HIV-related test and results, who shall disclose the results to the petitioner,; the physician of the victim, if requested by the victim,; and the county attorney who filed the petition for HIV-related testing under section 915.42.
   6.  5.  The court shall not consider the disclosure of an alleged offender’s serostatus to an alleged victim, prior to conviction, as a basis for a reduced plea or reduced sentence.
   7.  6.  The fact that an HIV-related test was performed under this subchapter and the results of the test shall not be included in the convicted offender’s medical or criminal record unless otherwise included in department of corrections records.
   8.  7.  The fact that an HIV-related test was performed under this subchapter and the results of the test shall not be used as a basis for further prosecution of a convicted offender in relation to the incident which that is the subject of the testing, to enhance punishments, or to influence sentencing.
   9.  If the serologic status of a convicted offender, which is conveyed to the victim, is based upon an HIV-related test other than a test which is authorized as a result of the procedures established in this subchapter, legal protections which attach to such testing shall be the same as those which attach to an initial test under this subchapter, and the rights to a predisclosure hearing and to appeal provided under section 915.42 shall apply.
   10.  8.  HIV-related testing required under this subchapter shall be conducted by the state hygienic laboratory.
   11.  9.  Notwithstanding the provisions of this subchapter requiring initial testing, if a petition is filed with the court under section 915.42 requesting an order for testing and the order is granted, and if a test has previously been performed on the convicted or alleged offender while under the control of the department of corrections, the test results shall be provided in lieu of the performance of an initial test of the convicted or alleged offender, in accordance with this subchapter.
   12.  10.  In addition to the counseling received by a victim, referral to appropriate health care and support services shall be provided.
   13.  11.  In addition to persons to whom disclosure of the results of a convicted or alleged offender’s HIV-related test results is authorized under this subchapter, the victim may also disclose the results to the victim’s spouse, persons with whom the victim has engaged in vaginal, anal, or oral intercourse subsequent to the sexual assault, or members of the victim’s family within the third degree of consanguinity.
   14.  12.  A person to whom disclosure of a convicted or alleged offender’s HIV-related test results is authorized under this subchapter shall not disclose the results to any other person for whom disclosure is not authorized under this subchapter. A person who intentionally or recklessly makes an unauthorized disclosure in violation of this subsection is subject to a civil penalty of one thousand dollars. The attorney general or the attorney general’s designee may maintain a civil action to enforce this subchapter. Proceedings maintained under this subsection shall provide for the anonymity of the test subject and all documentation shall be maintained in a confidential manner.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to victims of sexual assault including sexual abuse evidence, notification of rights, HIV testing of a convicted or alleged assailant, and testing, reporting, and counseling of a victim.
   Current law requires a law enforcement agency to store a sexual abuse evidence collection kit (kit) for a minimum of 15 years, or in the case of a minor victim for a minimum of 15 years after the minor reaches the age of majority.
   The bill provides that the law enforcement agency shall store the kit in a clean, dry location for a minimum of 20 years, or in the case of a minor victim for the lifetime of the minor victim, even if the reported victim of sexual abuse has not filed a criminal complaint.
   The bill requires the law enforcement agency to notify the reported victim in writing, not later than 60 days before the intended date of disposal of the kit, the reason for disposal of the kit, and the options that remain available for retention and analysis of the kit, if any. Upon written request of the reported victim, the law enforcement agency shall provide further preservation of the kit or its probative contents.
   Code section 709.22 provides that if a law enforcement officer has reason to believe that a sexual assault has occurred, the officer is required to provide the victim with immediate and adequate notice of the victim’s rights.
   The bill amends the information required to be included in the document explaining the victim’s right to include: you have the right to a sexual assault examination performed at state expense and the right not to be prevented from receiving a sexual assault examination. If you choose to have a sexual assault examination, you have the right to have a sexual assault examination kit or its probative contents preserved, without charge, for 20 years, or in the case of a minor victim, for the lifetime of the minor victim. This is your right even if you do not file a criminal complaint, pursuant to Code section 709.10(6). You have the right to be informed of the results of a sexual examination kit if such disclosure will not impede or compromise an ongoing investigation. You have the right to be informed of the status and location of a sexual assault evidence collection kit, and at least 60 days prior to the intended disposal of your sexual assault examination kit, you have the right to be notified in writing by a law enforcement agency of the intended disposal. This notice is required so that you can make a written request for further preservation of the kit or its probative contents.
   Current law provides that if a person is convicted of sexual assault or adjudicated delinquent for an act of sexual assault, the county attorney, if requested by the petitioner, shall petition the court for an order requiring the convicted offender to submit to an HIV-related test, and provides for a hearing.
   The bill removes the petition and hearing requirements and provides that unless a petitioner chooses to be represented by private counsel, the county attorney shall represent the victim’s interest. A person who is an alleged sexual assault offender shall, at the direction of the court or upon the request of the victim of the alleged offense, undergo a standard diagnostic test approved by the United States food and drug administration for HIV infection and other sexually transmitted infections. If the person refuses to submit voluntarily to the test, the court shall order the person to submit to the test. On request of the victim, the court shall order the defendant to undergo the test within 48 hours after the defendant is charged for the offense. If the victim requests testing of the defendant and a law enforcement agency is unable to locate the defendant during the 48-hour period, the running of the 48-hour period is tolled until a law enforcement agency locates the defendant and the defendant is present in the jurisdiction.
   The bill provides that the results of a test ordered under Code section 915.42 shall be disclosed to the convicted or alleged offender and to the victim as soon as practicable. In addition to the victim and the convicted or alleged offender, test results shall only be disclosed to: the physician or other practitioner who performs the test; the victim counselor or person requested by the victim to provide counseling regarding the HIV-related test and results; the physician of the victim if requested by the victim; the parent, guardian, or custodian of the victim, if the victim is a minor; and the county attorney. If testing is ordered, the court shall also order periodic testing of the convicted or alleged offender prior to trial and during the period of incarceration, probation, or parole or as medically necessary.