Bill Text: PA HB928 | 2009-2010 | Regular Session | Introduced

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Bill Title: 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.

Spectrum: Slight Partisan Bill (Republican 39-22)

Status: (Introduced - Dead) 2009-03-13 - Referred to JUDICIARY [HB928 Detail]

Download: Pennsylvania-2009-HB928-Introduced.html

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PRINTER'S NO. 1052
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 928 Session of2009
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
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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:
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"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.
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(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.
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(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
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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
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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
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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.
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§ 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
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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)
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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.
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