| |
|
| |
| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
| |
| HOUSE BILL |
|
| |
| |
| INTRODUCED BY MUSTIO, BARRAR, DENLINGER, GABLER, GEIST, HESS, KAUFFMAN, LONGIETTI, METZGAR, MILLARD, MILLER, MILNE, MURT, OBERLANDER, O'NEILL, PYLE, READSHAW, STERN, SWANGER, TOEPEL AND VULAKOVICH, JULY 20, 2011 |
| |
| |
| REFERRED TO COMMITTEE ON JUDICIARY, JULY 20, 2011 |
| |
| |
| |
| AN ACT |
| |
1 | Providing for HIV-related testing for certain sex offenders; and |
2 | making a related repeal. |
3 | The General Assembly of the Commonwealth of Pennsylvania |
4 | hereby enacts as follows: |
5 | CHAPTER 1 |
6 | PRELIMINARY PROVISIONS |
7 | Section 101. Short title. |
8 | This act shall be known and may be cited as the HIV-Related |
9 | Testing for Sex Offenders Act. |
10 | Section 102. Legislative intent. |
11 | In order to comply with section 2101 of the Omnibus Crime |
12 | Control and Safe Streets Act of 1968 (Public Law 90-351, 42 |
13 | U.S.C. § 3796hh) and to further the care and treatment of |
14 | victims of sexual assault by providing them with critical |
15 | medical information about their assailants, it is the intent of |
16 | the General Assembly to provide a statutory mechanism whereby a |
17 | court may order HIV-related testing of individuals who are |
|
1 | accused of committing certain sexual offenses. |
2 | Section 103. Definitions. |
3 | The following words and phrases when used in this act shall |
4 | have the meanings given to them in this section unless the |
5 | context clearly indicates otherwise: |
6 | "AIDS." Acquired immune deficiency syndrome. |
7 | "Bodily fluids." Blood, saliva, semen or other bodily fluid |
8 | which the most current guidelines of the Centers for Disease |
9 | Control and Prevention indicate is capable of transmitting human |
10 | immunodeficiency virus or acquired immune deficiency syndrome. |
11 | "Conviction." Includes conviction by entry of a plea of |
12 | guilty or nolo contendere, conviction after trial, a finding of |
13 | not guilty due to insanity or a finding of guilty but mentally |
14 | ill. |
15 | "Court." In the First Judicial District, the term shall mean |
16 | the Philadelphia Municipal Court or the Court of Common Pleas, |
17 | whichever has jurisdiction over the criminal case at the time |
18 | the request for HIV-related testing is made. In all other |
19 | judicial districts, the term shall mean a court of common pleas. |
20 | "HIV." The human immunodeficiency virus. |
21 | "HIV-related testing." A laboratory test or series of tests |
22 | for a virus, antibody, antigen or etiologic agent which is |
23 | thought to cause or to indicate the presence of human |
24 | immunodeficiency virus or acquired immune deficiency syndrome. |
25 | "Victim." Includes a parent or legal guardian of a minor or |
26 | mentally disabled adult. |
27 | CHAPTER 3 |
28 | HIV-RELATED TESTING |
29 | Section 301. Court ordered HIV-related testing. |
30 | In accordance with section 302 or 303, upon a finding of |
|
1 | probable cause to believe there is a probable transmission of |
2 | bodily fluids between a defendant and victim, the court shall |
3 | order the defendant to submit to HIV-related testing. |
4 | Section 302. Procedure. |
5 | (a) General rule.--In all judicial districts within this |
6 | Commonwealth, the attorney for the Commonwealth shall, upon |
7 | request of the victim and with notice to the defendant, make |
8 | application to the court for HIV-related testing of the |
9 | defendant for a violation of any of the following provisions |
10 | under 18 Pa.C.S. (relating to crimes and offenses): |
11 | Section 3121 (relating to rape). |
12 | Section 3122.1 (relating to statutory sexual assault). |
13 | Section 3123 (relating to involuntary deviate sexual |
14 | intercourse). |
15 | Section 3124.1 (relating to sexual assault). |
16 | Section 3124.2 (relating to institutional sexual |
17 | assault). |
18 | Section 3125 (relating to aggravated indecent assault). |
19 | Section 3126 (relating to indecent assault). |
20 | Section 4302 (relating to incest). |
21 | Section 4304 (relating to endangering welfare of |
22 | children) if the offense involved sexual contact with the |
23 | victim. |
24 | Section 6301 (relating to corruption of minors) if the |
25 | offense involved sexual contact with the victim. |
26 | Section 6312 (relating to sexual abuse of children) if |
27 | the offense involved sexual contact with the victim. |
28 | Section 6320 (relating to sexual exploitation of |
29 | children) if the offense involved sexual contact with the |
30 | victim. |
|
1 | (b) Timing.--In the case of the Commonwealth proceeding |
2 | under subsection (a): |
3 | (1) In the First Judicial District, the HIV-related test |
4 | shall be administered no later than 48 hours after the filing |
5 | of the bill of information. |
6 | (2) In judicial districts other than the First Judicial |
7 | District, the HIV-related test shall be administered no later |
8 | than 48 hours after the filing of the criminal information. |
9 | (c) Alternative.--In the event the victim fails to request |
10 | HIV-related testing of the defendant as set forth in subsection |
11 | (a), the victim may request that HIV-related testing be |
12 | performed on the defendant at any point after the time period |
13 | set forth in subsection (b) expires until six weeks after the |
14 | date of conviction. In such an event, the attorney for the |
15 | Commonwealth shall make application to the court, at the request |
16 | of the victim, with notice to the defendant, for HIV-related |
17 | testing of the defendant. |
18 | Section 303. Transfer of child defendant to criminal court. |
19 | (a) General rule.--In the case of a minor who is transferred |
20 | to criminal court pursuant to Pa.R.J.C.P. No.394 (relating to |
21 | transfer hearing), the attorney for the Commonwealth shall, upon |
22 | request of the victim and with notice to the defendant, make |
23 | application to the court for HIV-related testing of the |
24 | defendant. |
25 | (b) Timing.--In the case of the Commonwealth proceeding |
26 | under subsection (a): |
27 | (1) In the First Judicial District, the HIV-related test |
28 | shall be administered no later than 48 hours after the filing |
29 | of the bill of information. |
30 | (2) In judicial districts other than the First Judicial |
|
1 | District, the HIV-related test shall be administered no later |
2 | than 48 hours after the filing of the criminal information. |
3 | (c) Alternative.--In the event the victim fails to request |
4 | HIV-related testing of the defendant as set forth in subsection |
5 | (a), the victim may request that HIV-related testing be |
6 | performed on the defendant at any point after the time period |
7 | set forth in subsection (b) expires until six weeks after the |
8 | date of conviction. In such an event, the attorney for the |
9 | Commonwealth shall make application to the court, at the request |
10 | of the victim, with notice to the defendant, for HIV-related |
11 | testing of the defendant. |
12 | Section 304. Prohibition. |
13 | The following apply to HIV-related testing and any follow-up |
14 | testing of a defendant conducted pursuant to this act: |
15 | (1) The results of HIV-related testing of the defendant |
16 | may not be used to establish guilt of the defendant. |
17 | (2) The results of HIV-related testing may only be |
18 | disclosed to the following: |
19 | (i) The victim. |
20 | (ii) The defendant. |
21 | (iii) The attorney for the Commonwealth. |
22 | (iv) Health care providers treating the victim or |
23 | the defendant. |
24 | (v) The attorney for the defendant. |
25 | (vi) The court. |
26 | (vii) Any other individual designated by the court. |
27 | (3) Notice shall be given to the victim and to the |
28 | defendant regarding the results of the HIV-related testing of |
29 | the defendant as soon as is practicable. Counseling regarding |
30 | HIV and AIDS for the victim and for the defendant shall be |
|
1 | provided. In addition, follow-up HIV-related testing for the |
2 | defendant shall be provided as medically appropriate. Notice |
3 | of the results of any follow-up HIV-related testing shall be |
4 | provided to the victim and the defendant as soon as is |
5 | practicable. |
6 | (4) HIV-related testing shall only be performed by |
7 | licensed health care providers. Except for fulfilling the |
8 | reporting requirements of the act of April 23, 1956 (1955 |
9 | P.L.1510, No.500), known as the Disease Prevention and |
10 | Control Law of 1955, the results of the HIV-related testing |
11 | of the defendant and any follow-up tests of the defendant |
12 | shall be kept confidential. |
13 | (5) Licensed health care professionals who conduct |
14 | testing or perform counseling or other HIV-related and AIDS- |
15 | related services pursuant to this act shall not be subject to |
16 | civil liability for acts committed in good faith. |
17 | (6) The court may order that the cost of the HIV-related |
18 | testing and any follow-up testing of the defendant be borne |
19 | by the Department of Health or the Department of Corrections |
20 | or by the defendant if the defendant is an adult, as |
21 | appropriate. However, upon conviction, the court shall order |
22 | that the cost of the defendant's HIV-related testing and the |
23 | cost of any follow-up testing be assessed against the |
24 | defendant if the defendant is an adult. In no event shall the |
25 | victim pay for HIV-related testing. |
26 | CHAPTER 11 |
27 | MISCELLANEOUS PROVISIONS |
28 | Section 1101. Conflict. |
29 | In the event any provision of this act conflicts with the act |
30 | of November 29, 1990 (P.L.585, No.148), known as the |
|
1 | Confidentiality of HIV-Related Information Act, the provisions |
2 | of this act shall prevail. |
3 | Section 1102. Repeal. |
4 | Repeals are as follows: |
5 | (1) The General Assembly declares that the repeal under |
6 | paragraph (2) is necessary to effectuate this act. |
7 | (2) Section 11.1 of the act of April 23, 1956 (1955 P.L. |
8 | 1510, No.500), known as the Disease Prevention and Control |
9 | Law of 1955, is repealed. |
10 | Section 1103. Applicability. |
11 | This act shall apply to offenses committed on or after the |
12 | effective date of this act. |
13 | Section 1104. Effective date. |
14 | This act shall take effect in 60 days. |
|