THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GRUCELA, ROHRER, BARRAR, BELFANTI, BRENNAN, BROWN, CAUSER, CLYMER, CREIGHTON, DENLINGER, FLECK, GIBBONS, GOODMAN, HARKINS, HARRIS, HICKERNELL, HORNAMAN, KAUFFMAN, KILLION, LONGIETTI, MAHER, MICOZZIE, MOUL, MUSTIO, OBERLANDER, PALLONE, PETRARCA, READSHAW, REICHLEY, ROAE, BOYD, KORTZ, METCALFE, RAPP, ROCK, SOLOBAY, J. TAYLOR, WANSACZ, SCAVELLO, SIPTROTH, TRUE, WATSON AND HENNESSEY, MARCH 13, 2009

REFERRED TO COMMITTEE ON JUDICIARY, MARCH 13, 2009  

AN ACT

Amending Title 23 (Domestic Relations) of the Pennsylvania

Consolidated Statutes, in child protective services,

providing for the detection of child rapists and predators;

imposing duties on certain health care practitioners to

determine whether children are 13 years of age or older;

providing for reporting by treating health care

practitioners, for law enforcement, for fetal tissue and DNA

samples, for duties of the Office of Attorney General and for

certain immunity; and imposing penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Chapter 63 of Title 23 of the Pennsylvania

Consolidated Statutes is amended by adding a subchapter to read:

SUBCHAPTER B.1

CHILD RAPIST AND PREDATOR DETECTION

Sec.

6321.1.  Short title of subchapter.

6321.2.  Findings and purpose of subchapter.

6321.3.  Definitions.

6321.4.  Pregnancy and sexually transmitted disease as child

abuse in children.

6321.5.  Duty to determine whether child is 13 years of age or

older and to report.

6321.6.  Law enforcement.

6321.7.  Fetal tissue and DNA samples.

6321.8.  Evidence.

6321.9.  Entity assistance.

6321.10.  Preclusion of confidentiality.

6321.11.  Immunity.

6321.12.  Employer responsibility.

6321.13.  Annual report.

6321.14.  Criminal penalty.

6321.15.  Civil remedy.

§ 6321.1.  Short title of subchapter.

This subchapter shall be known and may be cited as the Child

Rapist and Predator Detection Act.

§ 6321.2.  Findings and purpose of subchapter.

The General Assembly finds and declares as follows:

(1)  The overriding imperatives of public safety and

child protection create a compelling State interest in

legislation to develop more effective methods for discovering

the identities of dangerous predators who rape and sexually

abuse preteen children before these dangerous predators can

traumatize the lives of other children.

(2)  Recently enacted legislation has expanded the

mandated reporting requirements for child abuse in a manner

that requires the reporting of the pregnancies of girls who

are under 13 years of age to county agencies, regardless of

whether the predator is a perpetrator within the meaning of

this subchapter.

(3)  The failure of physicians and hospital

administrators to report the pregnancy of preteens to law

enforcement authorities is a punishable offense under 18

Pa.C.S. § 5106 (relating to failure to report injuries by

firearm or criminal act).

(4)  Despite the mandatory reporting requirement under

existing law, a significant number of child rapists and other

child predators avoid detection and punishment when the

reporting requirement is circumvented by the failure to make

reasonable efforts to confirm the age of child victims.

(5)  Children under 13 years of age who have a sexually

transmitted disease or who are pregnant embody evidence that

a felonious sex crime has been committed.

(6)  The successful criminal prosecution of sexual

offenders who prey on preteen children may depend heavily on

the preservation of physical evidence, including DNA

evidence, in order to identify or confirm the identity of the

perpetrator.

(7)  A law requiring a health care practitioner who

treats a minor who is pregnant or who has a sexually

transmitted disease to ascertain whether that minor is a

preteen will greatly strengthen the Commonwealth's ability to

protect children under 13 years of age against child rapists

and other sexual predators.

§ 6321.3.  Definitions.

The following words and phrases when used in this subchapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Abortion facility."  A facility or medical facility as

defined in 18 Pa.C.S. § 3203 (relating to definitions).

"Chief of police."  The chief of police or other head of the

police department of the municipality in which resides a child

who is the subject of a report required under this subchapter.

"Child."  An individual who is under 13 years of age.

"Child predator unit."  The Child Predator Unit in the Office

of Attorney General.

"County agency."  As defined under section 6303 (relating to

definitions).

"Entity."  The agency, institution, organization or other

entity, including an abortion facility, with which a treating

health care practitioner is affiliated for purposes of the

reporting requirement under section 6311 (relating to persons

required to report suspected child abuse).

"Minor."  An individual who is under 16 years of age.

"Physician."  A person licensed to practice medicine in this

Commonwealth. The term also includes a medical doctor and a

doctor of osteopathy.

"Treating health care practitioner."  A physician or other

health care practitioner who:

(1)  is primarily responsible for the prenatal care of a

pregnant minor;

(2)  delivers a baby or terminates the pregnancy of a

minor; or

(3)  treats a minor for a sexually transmitted disease.

"Unborn child."  As defined in 18 Pa.C.S. § 3203 (relating to

definitions).

§ 6321.4.  Pregnancy and sexually transmitted disease as child

abuse in children.

(a)  General rule.--The presence of a sexually transmitted

disease in or the pregnancy of a child constitutes clear and

convincing evidence of a first degree felony offense for

purposes of criminal prosecution and of rape under 18 Pa.C.S. §

3121(c) (relating to rape) or 3123(b) (relating to involuntary

deviate sexual intercourse) and clear and convincing evidence of

child abuse for purposes of triggering the requirements of this

subchapter.

(b)  Age of other participant not a defense.--A person

required to comply with the requirements of this subchapter

shall do so regardless of whether that person possesses any

information relating to the age of the other participant in the

act causing the pregnancy or sexually transmitted disease.

(c)  Construction.--Nothing in this subchapter shall be

construed to eliminate or diminish the duty to report that any

minor is pregnant or has a sexually transmitted disease or is a

victim of sexual abuse or exploitation in cases where the person

is required to make a report under section 6311 (relating to

persons required to report suspected child abuse).

§ 6321.5.  Duty to determine whether child is 13 years of age or

older and to report.

(a)  Sufficiency of evidence.--

(1)  (i)  Where a treating health care practitioner

treats a minor with respect to prenatal care, the

delivery of a baby, the termination of a pregnancy or a

sexually transmitted disease, the treating health care

practitioner shall obtain credible written evidence such

as a school record, health care record or health

insurance record that the minor is 13 years of age or

older.

(ii)  If the written evidence indicates that the

minor is a child, the treating health care practitioner

shall report this information to the child predator unit

in writing by mail, facsimile transmission or e-mail with

copies to the county agency. The report shall contain the

information specified in section 6313(c) (relating to

reporting procedure) to the extent applicable.

(iii)  Compliance with this paragraph shall

constitute compliance with section 6311 (relating to

persons required to report suspected child abuse).

(2)  An uncorroborated statement of a minor being treated

or of another person shall not constitute sufficient evidence

that the minor is 13 years of age or older.

(3)  If the treating health care practitioner fails to

make a report under paragraph (1), the treating health care

practitioner shall make a record of the evidentiary basis for

his determination that the minor is 13 years of age or older

which shall be preserved by the treating health care

practitioner and the entity with which the treating health

care practitioner is affiliated and separately by the entity

for a period of five years.

(4)  A treating health care practitioner who fails to

obtain credible evidence or to maintain the record shall be

deprived of any defense that the treating health care

practitioner did not have reasonable cause to suspect that

the minor was 13 years of age or older.

(b)  Violation.--A treating health care practitioner who does

not make a report in accordance with this section shall be in

violation of this subchapter if the treating health care

practitioner has failed to obtain, file and maintain credible

evidence that a minor specified in subsection (a) is 13 years of

age or older, if the minor was a child at the time of treatment.

(c)  Duties of county agency.--The chief administrative

officer of each county agency shall:

(1)  Establish a procedure for notifying each health care

practitioner who makes a report under this subchapter,

including section 6311, that the health care practitioner

shall also notify the child predator unit if the nature of

that report falls within the scope of subsection (a).

(2)  Verify, within two business days of receiving a

report under subsection (a), that the child predator unit has

also received the report, shall transmit or provide for the

transmission of the report if the child predator unit has not

received the report and shall transmit or provide for the

transmission of the report to the county district attorney.

(d)  No relief from liability.--A violation of subsection (c)

by a county agency shall not relieve a health care practitioner

of the duty to notify the child predator unit in accordance with

subsection (a).

(e)  Construction.--Nothing in this subchapter shall be

construed to prohibit a treating health care practitioner from

providing immediate treatment to a minor.

§ 6321.6.  Law enforcement.

(a)  Furnishing of information to local police department.--

Upon receipt of notification pursuant to section 6321.5(a)(1)

(ii) (relating to duty to determine whether child is 13 years of

age or older and to report), the child predator unit shall

furnish the information to the chief of police and the

Pennsylvania State Police as to where the child who is the

subject of the report required under this section resides, if

known.

(b)  Report to parent or guardian.--A law enforcement agency

that receives information regarding the abuse of a child under

this subsection shall inform a parent or guardian of the child

that the child has been the victim of child abuse.

(c)  Coordination of work.--The child predator unit shall

coordinate with and provide technical and legal assistance to

county agencies, district attorneys and police departments in

order to further the purposes of this subchapter.

§ 6321.7.  Fetal tissue and DNA samples.

(a)  Abortion.--

(1)  A physician who performs an abortion on a child

shall collect, in accordance with the instructions of the

Pennsylvania State Police, a sample of DNA suitable for

testing from the child on whom the abortion was performed and

the remains of her unborn child.

(2)  In the case of the remains of an unborn child, a

sample is suitable for testing under paragraph (1) if it

consists of properly preserved blood or fetal tissue

containing DNA.

(b)  Delivery of baby.--

(1)  A physician who delivers or supervises the delivery

of a baby conceived by a child shall collect or provide for

the collection of a sample of DNA suitable for testing from

the baby in accordance with the instructions of the State

Police.

(2)  The sample shall be deemed suitable for testing

under paragraph (1) if it consists of properly preserved

blood or oral swabbings containing DNA.

(c)  Forwarding of samples to Pennsylvania State Police.--A

sample collected under this section shall be immediately

forwarded by the physician to the Pennsylvania State Police for

testing in order to identify or confirm the identity of the

person who impregnated the child.

(d)  Duties of Pennsylvania State Police.--The Pennsylvania

State Police shall prescribe:

(1)  The amount and type of fetal tissue and other DNA

evidence to be preserved and submitted by a physician under

this section.

(2)  Procedures for the proper preservation of fetal

tissue and other DNA evidence for the purpose of DNA testing

and examination.

(3)  Procedures for documenting the chain of custody of

fetal tissue and other DNA evidence for use as evidence.

(4)  Procedures for proper disposal of fetal tissue and

other DNA evidence preserved under this section.

(5)  A uniform reporting instrument mandated for use by

physicians who submit fetal tissue or other DNA evidence

under this section, which shall include the name of the

physician submitting the fetal tissue or other DNA evidence

and the name, complete address of residence and name of the

parent or legal guardian of the child on whom the abortion

was performed or who gave birth, whichever is applicable.

(6)  Procedures for communication with law enforcement

agencies regarding evidence and information obtained under

this section.

(e)  Pennsylvania State Police notice to child predator

unit.--The Pennsylvania State Police shall notify the child

predator unit whenever it receives fetal tissue or other DNA

evidence under the requirements of this section.

§ 6321.8.  Evidence.

All evidence derived under the provisions of this subchapter

may be used in any prosecution under 18 Pa.C.S. Ch. 31 (relating

to sexual offenses) or in any other criminal or civil proceeding

arising in connection with pregnancy or sexually transmitted

disease, including, but not limited to, any action arising out

of a failure to make a report or collect evidence as required

under this subchapter.

§ 6321.9.  Entity assistance.

The chief administrative officer of an entity shall establish

policies and procedures to secure the compliance of treating

health care practitioners with the requirements of this

subchapter, and the chief administrative officer of the entity

shall assist treating health care practitioners in meeting the

requirements of this subchapter.

§ 6321.10.  Preclusion of confidentiality.

A privileged communication between a treating health care

practitioner and his patient shall not apply to a report made

under this subchapter regarding a minor which is made in order

to assure compliance with this subchapter.

§ 6321.11.  Immunity.

The provisions of section 6318 (relating to immunity from

liability) shall be applicable to this subchapter.

§ 6321.12.  Employer responsibility.

(a)  Right of action.--Any person who, under this subchapter,

is required to make a report under this subchapter and who, in

good faith, makes or causes the report to be made and, as a

result thereof, is discharged from his employment or in any

other manner is discriminated against with respect to

compensation, hire, tenure, terms, conditions or privileges of

employment may commence an action in the court of common pleas

of the county in which the alleged unlawful discharge or

discrimination occurred for appropriate relief.

(b)  Appropriate relief.--If the court finds that the person

is an individual who, under this subchapter, is required to

report and who, in good faith, made or caused to be made a

report and, as a result thereof, was discharged or discriminated

against with respect to compensation, hire, tenure, terms,

conditions or privileges of employment, it may issue an order

granting appropriate relief, including, but not limited to, back

pay.

§ 6321.13.  Annual report.

On or before March 30 of each year, the child predator unit

shall prepare a report on the enforcement of this subchapter

during the preceding calendar year, which shall include the

number of reports filed under this subchapter, itemized by

county and any disposition resulting from each report and any

recommendation, if any, for administrative and legislative

reform. The report shall not contain any information that would

lead to the disclosure of the identity of the child or the

person required to report it. The report shall be filed with the

Chief Clerk of the Senate and the Chief Clerk of the House of

Representatives, the chair and minority chair of the Law and

Justice Committee of the Senate and the chair and minority chair

of the Judiciary Committee of the House of Representatives and

shall be available for public inspection and copying.

§ 6321.14.  Criminal penalty.

Any person who willfully violates sections 6321.5(b)

(relating to duty to determine whether child is 13 years of age

or older and to report), 6321.6(a) (relating to law enforcement)

and 6321.7(a), (b) or (c) (relating to fetal tissue and DNA

samples) commits:

(1)  A misdemeanor of the third degree for a first

violation of this subchapter.

(2)  A misdemeanor of the first degree for a second

violation of this subchapter occurring after a first

conviction.

(3)  A felony of the third degree for a third or

subsequent violation of this subchapter occurring after a

second or subsequent conviction.

§ 6321.15.  Civil remedy.

A person who is convicted for a failure to make a report

required under section 6321.5 (relating to duty to determine

whether child is 13 years of age or older and to report) and any

entity with which the person was affiliated in connection with

the violation shall be liable to the child for whom the report

was required to be made for compensatory and punitive damages

and for reasonable attorney fees if the child was the victim of

continued rape or involuntary deviate sexual intercourse or a

victim of statutory assault by the same perpetrator after the

date on which the violation occurred.

Section 2.  This act shall take effect in 60 days.