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, VULAKOVICH, GEORGE, SHAPIRO, HALUSKA AND DELOZIER, JULY 20, 2011

AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, OCTOBER 4, 2011   

AN ACT

Providing for HIV-related testing for certain sex offenders; and

making a related repeal.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

CHAPTER 1

PRELIMINARY PROVISIONS

Section 101.  Short title.

This act shall be known and may be cited as the HIV-Related

Testing for Sex Offenders Act.

Section 102.  Legislative intent.

In order to comply with section 2101 of the Omnibus Crime

Control and Safe Streets Act of 1968 (Public Law 90-351, 42

U.S.C. § 3796hh) and to further the care and treatment of

victims of sexual assault by providing them with critical

medical information about their assailants, it is the intent of

the General Assembly to provide a an additional statutory

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mechanism whereby a court may order HIV-related testing of

individuals who are accused of committing certain sexual

offenses.

Section 103.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"AIDS."  Acquired immune deficiency syndrome.

"Bodily fluids."  Blood, saliva, semen or other bodily fluid

which the most current guidelines of the Centers for Disease

Control and Prevention indicate is capable of transmitting human

immunodeficiency virus or acquired immune deficiency syndrome.

"Conviction."  Includes conviction by entry of a plea of

guilty or nolo contendere, conviction after trial, a finding of

not guilty due to insanity or a finding of guilty but mentally

ill.

"Court."  In the First Judicial District, the term shall mean

the Philadelphia Municipal Court or the Court of Common Pleas,

whichever has jurisdiction over the criminal case at the time

the request for HIV-related testing is made. In all other

judicial districts, the term shall mean a court of common pleas.

"HIV."  The human immunodeficiency virus.

"HIV-related testing."  A laboratory test or series of tests

for a virus, antibody, antigen or etiologic agent which is

thought to cause or to indicate the presence of human

immunodeficiency virus or acquired immune deficiency syndrome.

"Victim."  Includes a parent or legal guardian of a minor or

mentally disabled adult.

CHAPTER 3

HIV-RELATED TESTING

Section 301.  Court ordered HIV-related testing.

In accordance with section 302 or 303, upon a finding of

probable cause to believe there is a probable transmission of

bodily fluids between a defendant and victim, the court shall

order the defendant to submit to HIV-related testing.

Section 302.  Procedure.

(a)  General rule.--In all judicial districts within this

Commonwealth, the attorney for the Commonwealth shall, upon

request of the victim and with notice to the defendant, make

application to the court for HIV-related testing of the

defendant for a violation of any of the following provisions

under 18 Pa.C.S. (relating to crimes and offenses):

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual

intercourse).

Section 3124.1 (relating to sexual assault).

Section 3124.2 (relating to institutional sexual

assault).

Section 3125 (relating to aggravated indecent assault).

Section 3126 (relating to indecent assault).

Section 4302 (relating to incest).

Section 4304 (relating to endangering welfare of

children) if the offense involved sexual contact with the

victim.

Section 6301 (relating to corruption of minors) if the

offense involved sexual contact with the victim.

Section 6312 (relating to sexual abuse of children) if

the offense involved sexual contact with the victim.

Section 6320 (relating to sexual exploitation of

children) if the offense involved sexual contact with the

victim.

(b)  Timing.--In the case of the Commonwealth proceeding

under subsection (a):

(1)  In the First Judicial District, the HIV-related test

shall be administered no later than 48 hours after the filing

of the bill of information.

(2)  In judicial districts other than the First Judicial

District, the HIV-related test shall be administered no later

than 48 hours after the filing of the criminal information.

(c)  Alternative.--In the event the victim fails to request

HIV-related testing of the defendant as set forth in subsection

(a), the victim may request that HIV-related testing be

performed on the defendant at any point after the time period

set forth in subsection (b) expires until six weeks after the

date of conviction. In such an event, the attorney for the

Commonwealth shall make application to the court, at the request

of the victim, with notice to the defendant, for HIV-related

testing of the defendant.

Section 303.  Transfer of child defendant to criminal court.

(a)    General rule.--In the case of a minor who is transferred

to criminal court pursuant to Pa.R.J.C.P. No.394 (relating to

transfer hearing), the attorney for the Commonwealth shall, upon

request of the victim and with notice to the defendant, make

application to the court for HIV-related testing of the

defendant.

(b)  Timing.--In the case of the Commonwealth proceeding

under subsection (a):

(1)  In the First Judicial District, the HIV-related test

shall be administered no later than 48 hours after the filing

of the bill of information.

(2)  In judicial districts other than the First Judicial

District, the HIV-related test shall be administered no later

than 48 hours after the filing of the criminal information.

(c)  Alternative.--In the event the victim fails to request

HIV-related testing of the defendant as set forth in subsection

(a), the victim may request that HIV-related testing be

performed on the defendant at any point after the time period

set forth in subsection (b) expires until six weeks after the

date of conviction. In such an event, the attorney for the

Commonwealth shall make application to the court, at the request

of the victim, with notice to the defendant, for HIV-related

testing of the defendant.

Section 304.  Prohibition.

The following apply to HIV-related testing and any follow-up

testing of a defendant conducted pursuant to this act:

(1)  The results of HIV-related testing of the defendant

may not be used to establish guilt of the defendant.

(2)  The results of HIV-related testing may only be

disclosed to the following:

(i)  The victim.

(ii)  The defendant.

(iii)  The attorney for the Commonwealth.

(iv)  Health care providers treating the victim or

the defendant.

(v)  The attorney for the defendant.

(vi)  The court.

(vii)  Any other individual designated by the court.

(3)  Notice shall be given to the victim and to the

defendant regarding the results of the HIV-related testing of

the defendant as soon as is practicable. Counseling regarding

HIV and AIDS for the victim and for the defendant shall be

provided. In addition, follow-up HIV-related testing for the

defendant shall be provided as medically appropriate. Notice

of the results of any follow-up HIV-related testing shall be

provided to the victim and the defendant as soon as is

practicable.

(4)  HIV-related testing shall only be performed by

licensed health care providers. Except for fulfilling the

reporting requirements of the act of April 23, 1956 (1955

P.L.1510, No.500), known as the Disease Prevention and

Control Law of 1955, the results of the HIV-related testing

of the defendant and any follow-up tests of the defendant

shall be kept confidential.

(5)  Licensed health care professionals who conduct

testing or perform counseling or other HIV-related and AIDS-

related services pursuant to this act shall not be subject to

civil liability for acts committed in good faith.

(6)  The court may order that the cost of the HIV-related

testing and any follow-up testing of the defendant be borne

by the Department of Health or the Department of Corrections

or by the defendant if the defendant is an adult, as

appropriate. However, upon conviction, the court shall order

that the cost of the defendant's HIV-related testing and the

cost of any follow-up testing be assessed against the

defendant if the defendant is an adult. In no event shall the

victim pay for HIV-related testing.

CHAPTER 11

MISCELLANEOUS PROVISIONS

Section 1101.  Conflict.

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In the event any provision of this act conflicts with the act

of November 29, 1990 (P.L.585, No.148), known as the

Confidentiality of HIV-Related Information Act, the provisions

of this act shall prevail.

Section 1101.  Construction.

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The following shall apply:

(1)  This act shall not be construed to preclude or limit

any other HIV-related testing that is otherwise lawfully

permitted by search warrant, court order, statute or common

law.

(2)  This act shall be read in pari materia with the act

of november 29, 1990 (P.L.585, No.148), known as the

confidentiality of HIV-Related Information Act.

Section 1102.  Repeal.

Repeals are as follows:

(1)  The General Assembly declares that the repeal under

paragraph (2) is necessary to effectuate this act.

(2)  Section 11.1 of the act of April 23, 1956 (1955

P.L.1510, No.500), known as the Disease Prevention and

Control Law of 1955, is repealed.

Section 1103.  Applicability.

This act shall apply to offenses committed on or after the

effective date of this act.

Section 1104.  Effective date.

This act shall take effect in 60 days.