Bill Text: PA HB1794 | 2011-2012 | Regular Session | Amended

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Bill Title: Providing for HIV-related testing for certain sex offenders; and making a related repeal.

Spectrum: Moderate Partisan Bill (Republican 22-5)

Status: (Passed) 2012-10-25 - Act No. 201 [HB1794 Detail]

Download: Pennsylvania-2011-HB1794-Amended.html

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PRIOR PRINTER'S NO. 2297 PRINTER'S NO. 2472
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1794 Session of2011
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 <--
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
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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
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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
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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
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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. <--
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.
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