As Introduced 1
123rd General Assembly 4
Regular Session H.B. No. 100 5
1999-2000 6
REPRESENTATIVES YOUNG-ALLEN-BARRETT-BRADING-BRITTON- 8
BUCHY-CALLENDER-CATES-CORBIN-CORE-DAMSCHRODER-DePIERO- 9
EVANS-FLANNERY-FORD-GARDNER-GRENDELL-HARTNETT-HOOPS-HOUSEHOLDER- 10
JACOBSON-JERSE-JOLIVETTE-JONES-JORDAN-KREBS-R.MILLER-MOTTLEY- 11
MYERS-NETZLEY-O'BRIEN-OGG-OLMAN-PADGETT-PATTON-ROMAN-SCHUCK-SULZER- 12
TAYLOR-TERWILLEGER-THOMAS-VAN VYVEN-VESPER-WILLAMOWSKI-WILLIAMS 13
14
A B I L L
To amend sections 2903.11, 2907.27, 2907.28, and 16
3701.243 of the Revised Code to include within 17
the offense of felonious assault a prohibition
against any person, who knows that the person 19
tested positive for HIV, engaging in sexual 20
conduct with a minor or an unsuspecting adult 22
partner and to require that a person arrested for 23
violating that prohibition be tested for HIV 24
under certain circumstances.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 26
Section 1. That sections 2903.11, 2907.27, 2907.28, and 28
3701.243 of the Revised Code be amended to read as follows: 29
Sec. 2903.11. (A) No person shall knowingly DO EITHER OF 38
THE FOLLOWING: 39
(1) Cause serious physical harm to another or to another's 41
unborn;
(2) Cause or attempt to cause physical harm to another or 43
to another's unborn by means of a deadly weapon or dangerous 44
ordnance, as defined in section 2923.11 of the Revised Code. 45
(B) NO PERSON, WITH KNOWLEDGE THAT THE PERSON HAS TESTED 47
POSITIVE AS A CARRIER OF A VIRUS THAT CAUSES ACQUIRED 48
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IMMUNODEFICIENCY SYNDROME, SHALL KNOWINGLY DO ANY OF THE 49
FOLLOWING:
(1) ENGAGE IN SEXUAL CONDUCT WITH ANOTHER PERSON WITHOUT 51
DISCLOSING THAT KNOWLEDGE TO THE OTHER PERSON PRIOR TO ENGAGING 52
IN THE SEXUAL CONDUCT;
(2) ENGAGE IN SEXUAL CONDUCT WITH A PERSON WHOM THE 54
OFFENDER KNOWS OR HAS REASONABLE CAUSE TO BELIEVE LACKS THE 56
MENTAL CAPACITY TO APPRECIATE THE SIGNIFICANCE OF THE KNOWLEDGE
THAT THE OFFENDER HAS TESTED POSITIVE AS A CARRIER OF A VIRUS 57
THAT CAUSES ACQUIRED IMMUNODEFICIENCY SYNDROME; 58
(3) ENGAGE IN SEXUAL CONDUCT WITH A PERSON UNDER EIGHTEEN 60
YEARS OF AGE WHO IS NOT THE SPOUSE OF THE OFFENDER. 61
(C) DIVISION (B) OF THIS SECTION DOES NOT APPLY TO A 63
PERSON WHO HAS KNOWLEDGE THAT THE PERSON HAS TESTED POSITIVE AS A 64
CARRIER OF A VIRUS THAT CAUSES ACQUIRED IMMUNODEFICIENCY 65
SYNDROME, WHO ENGAGES IN SEXUAL CONDUCT WITH THE PERSON'S SPOUSE, 66
REGARDLESS OF THE AGE OF THE PERSON'S SPOUSE, AND WHO DISCLOSES 67
THAT KNOWLEDGE TO THE PERSON'S SPOUSE PRIOR TO ENGAGING IN THE 68
SEXUAL CONDUCT.
(D) THE PROSECUTION OF A PERSON UNDER THIS SECTION DOES 70
NOT PRECLUDE PROSECUTION OF THAT PERSON UNDER SECTION 2907.02 OF 72
THE REVISED CODE.
(E) Whoever violates this section is guilty of felonious 74
assault, a felony of the second degree. If the victim of the 76
offense A VIOLATION OF DIVISION (A) OF THIS SECTION is a peace 77
officer, as defined in section 2935.01 of the Revised Code, 78
felonious assault is a felony of the first degree. 80
(F) AS USED IN THIS SECTION: 82
(1) "DEADLY WEAPON" AND "DANGEROUS ORDNANCE" HAVE THE SAME 84
MEANINGS AS IN SECTION 2923.11 OF THE REVISED CODE. 85
(2) "PEACE OFFICER" HAS THE SAME MEANING AS IN SECTION 87
2935.01 OF THE REVISED CODE.
(3) "SEXUAL CONDUCT" HAS THE SAME MEANING AS IN SECTION 89
2907.01 OF THE REVISED CODE.
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Sec. 2907.27. (A)(1) If a person is charged with a 98
violation of section 2907.02, 2907.03, 2907.04, 2907.24, 99
2907.241, or 2907.25 of the Revised Code or with a violation of a 100
municipal ordinance that is substantially equivalent to any of 101
those sections, the arresting authorities or a court, upon the 102
request of the prosecutor in the case or upon the request of the 103
victim, shall cause the accused to submit to one or more 104
appropriate tests to determine if the accused is suffering from a 105
venereal disease.
(2) If the accused is found to be suffering from a 107
venereal disease in an infectious stage, the accused shall be 108
required to submit to medical treatment for that disease. The 110
cost of the medical treatment shall be charged to and paid by the 111
accused who undergoes the treatment. If the accused is indigent, 112
the court shall order the accused to report to a facility 114
operated by a city health district or a general health district
for treatment. If the accused is convicted of or pleads guilty 116
to the offense with which the accused is charged and is placed on 118
probation, a condition of probation shall be that the offender 119
submit to and faithfully follow a course of medical treatment for 120
the venereal disease. If the offender does not seek the required 121
medical treatment, the court may revoke the offender's probation 123
and order the offender to undergo medical treatment during the
period of the offender's incarceration and to pay the cost of 125
that treatment.
(B)(1)(a) Notwithstanding the requirements for informed 127
consent in section 3701.242 of the Revised Code, if a person is 128
charged with a violation of DIVISION (B) OF SECTION 2903.11 OR OF 129
section 2907.02, 2907.03, 2907.04, 2907.05, 2907.12, 2907.24, 131
2907.241, or 2907.25 of the Revised Code or with a violation of a 132
municipal ordinance that is substantially equivalent to THAT 133
DIVISION OR any of those sections, the court, upon the request of 135
the prosecutor in the case, upon the request of the victim, or 136
upon the request of any other person whom the court reasonably 138
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believes had contact with the accused in circumstances related to 139
the violation that could have resulted in the transmission to 140
that person of a virus that causes acquired immunodeficiency
syndrome, shall cause the accused to submit to one or more tests 142
designated by the director of health under section 3701.241 of 143
the Revised Code to determine if the accused is a carrier of a 144
virus that causes acquired immunodeficiency syndrome. The court, 145
upon the request of the prosecutor in the case, upon the request 146
of the victim with the agreement of the prosecutor, or upon the 147
request of any other person with the agreement of the prosecutor, 148
may cause an accused who is charged with a violation of any other 149
section of the Revised Code or with a violation of any other 150
municipal ordinance to submit to one or more tests so designated 151
by the director of health if the circumstances of the violation 152
indicate probable cause to believe that the accused, if the 153
accused is infected with the virus that causes acquired 154
immunodeficiency syndrome, might have transmitted the virus to 155
any of the following persons in committing the violation: 156
(i) In relation to a request made by the prosecuting 158
attorney, to the victim or to any other person; 159
(ii) In relation to a request made by the victim, to the 161
victim making the request; 162
(iii) In relation to a request made by any other person, 164
to the person making the request. 165
(b) The results of a test performed under division 167
(B)(1)(a) of this section shall be communicated in confidence to 169
the court, and the court shall inform the accused of the result. 170
The court shall inform the victim that the test was performed and 171
that the victim has a right to receive the results on request. 172
If the test was performed upon the request of a person other than 173
the prosecutor in the case and other than the victim, the court 174
shall inform the person who made the request that the test was 175
performed and that the person has a right to receive the results
upon request. Additionally, regardless of who made the request 176
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that was the basis of the test being performed, if the court 177
reasonably believes that, in circumstances related to the 178
violation, a person other than the victim had contact with the 179
accused that could have resulted in the transmission of the virus 180
to that person, the court may inform that person that the test 181
was performed and that the person has a right to receive the 182
results of the test on request. If the accused tests positive 183
for a virus that causes acquired immunodeficiency syndrome, the 184
test results shall be reported to the department of health in 185
accordance with section 3701.24 of the Revised Code and to the 186
sheriff, head of the state correctional institution, or other 187
person in charge of any jail or prison in which the accused is 188
incarcerated. If the accused tests positive for a virus that 190
causes acquired immunodeficiency syndrome and the accused was
charged with, and was convicted of or pleaded guilty to, a 191
violation of section 2907.24, 2907.241, or 2907.25 of the Revised 192
Code or a violation of a municipal ordinance that is 193
substantially equivalent to any of those sections, the test 194
results also shall be reported to the law enforcement agency that 195
arrested the accused, and the law enforcement agency may use the 196
test results as the basis for any future charge of a violation of 197
division (B) of any of those sections or a violation of a 198
municipal ordinance that is substantially equivalent to division 199
(B) of any of those sections. No other disclosure of the test 200
results or the fact that a test was performed shall be made, 201
other than as evidence in a grand jury proceeding or as evidence 202
in a judicial proceeding in accordance with the Rules of 203
Evidence. If the test result is negative, and the charge has not 205
been dismissed or if the accused has been convicted of the charge 206
or a different offense arising out of the same circumstances as 207
the offense charged, the court shall order that the test be 208
repeated not earlier than three months nor later than six months 209
after the original test.
(2) If an accused who is free on bond refuses to submit to 212
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a test ordered by the court pursuant to division (B)(1) of this 213
section, the court may order that the accused's bond be revoked 214
and that the accused be incarcerated until the test is performed. 215
If an accused who is incarcerated refuses to submit to a test 216
ordered by the court pursuant to division (B)(1) of this section, 217
the court shall order the person in charge of the jail or prison 218
in which the accused is incarcerated to take any action necessary 219
to facilitate the performance of the test, including the forcible 220
restraint of the accused for the purpose of drawing blood to be 221
used in the test.
(3) A state agency, a political subdivision of the state, 224
or an employee of a state agency or of a political subdivision of 225
the state is immune from liability in a civil action to recover 226
damages for injury, death, or loss to person or property 227
allegedly caused by any act or omission in connection with the 228
performance of the duties required under division (B)(2) of this 229
section unless the acts or omissions are with malicious purpose, 230
in bad faith, or in a wanton or reckless manner. 231
Sec. 2907.28. (A) Any cost incurred by a hospital or 240
other emergency medical facility in conducting a medical 241
examination of a victim of an offense under any provision of 242
sections 2907.02 to 2907.06 of the Revised Code for the purpose 243
of gathering physical evidence for a possible prosecution shall 244
be charged to and paid by the appropriate local government as 245
follows: 246
(1) Cost incurred by a county facility shall be charged to 248
and paid by the county; 249
(2) Cost incurred by a municipal facility shall be charged 251
to and paid by the municipal corporation; 252
(3) Cost incurred by a private facility shall be charged 254
to and paid by the municipal corporation in which the alleged 255
offense was committed, or charged to and paid by the county, if 256
committed within an unincorporated area. If separate counts of 257
an offense or separate offenses under any provisions of sections 258
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2907.02 to 2907.06 of the Revised Code took place in more than 259
one municipal corporation or more than one unincorporated area, 260
or both, the local governments shall share the cost of the 261
examination. 262
(B) Any cost incurred by a hospital or other emergency 264
medical facility in conducting a medical examination and test of 265
any person who is charged with a violation of DIVISION (B) OF 266
SECTION 2903.11 OR OF section 2907.02, 2907.03, 2907.04, 2907.05, 268
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 269
with a violation of a municipal ordinance that is substantially 270
equivalent to THAT DIVISION OR any of those sections, pursuant to 272
division (B) of section 2907.27 of the Revised Code, shall be 273
charged to and paid by the accused who undergoes the examination 274
and test, unless the court determines that the accused is unable 276
to pay, in which case the cost shall be charged to and paid by 278
the municipal corporation in which the offense allegedly was
committed, or charged to and paid by the county if the offense 279
allegedly was committed within an unincorporated area. If 280
separate counts of an alleged offense or alleged separate 281
offenses under section 2907.02, 2907.03, 2907.04, 2907.05, 282
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 284
under a municipal ordinance that is substantially equivalent to 285
any of those sections took place in more than one municipal 286
corporation or more than one unincorporated area, or both, the 287
local governments shall share the cost of the examination and 288
test. If a hospital or other emergency medical facility has 289
submitted charges for the cost of a medical examination and test 290
to an accused and has been unable to collect payment for the 291
charges after making good faith attempts to collect for a period 292
of six months or more, the cost shall be charged to and paid by 293
the appropriate municipal corporation or county as specified in 294
division (B) of this section. 295
Sec. 3701.243. (A) Except as provided in this section or 304
section 3701.248 of the Revised Code, no person or agency of 305
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state or local government that acquires the information while 306
providing any health care service or while in the employ of a 307
health care facility or health care provider shall disclose or 308
compel another to disclose any of the following: 309
(1) The identity of any individual on whom an HIV test is 311
performed; 312
(2) The results of an HIV test in a form that identifies 314
the individual tested; 315
(3) The identity of any individual diagnosed as having 317
AIDS or an AIDS-related condition. 318
(B)(1) Except as provided in divisions (B)(2), (C), (D), 320
and (F) of this section, the results of an HIV test or the 321
identity of an individual on whom an HIV test is performed or who 322
is diagnosed as having AIDS or an AIDS-related condition may be 324
disclosed only to the following: 325
(a) The individual who was tested or the individual's 327
legal guardian, and his THE INDIVIDUAL'S spouse or any sexual 328
partner; 329
(b) A person to whom disclosure is authorized by a written 331
release, executed by the individual tested or by his THE 332
INDIVIDUAL'S legal guardian and specifying to whom disclosure of 333
the test results or diagnosis is authorized and the time period 335
during which the release is to be effective; 336
(c) The individual's physician; 338
(d) The department of health or a health commissioner to 340
which reports are made under section 3701.24 of the Revised Code; 341
(e) A health care facility or provider that procures, 343
processes, distributes, or uses a human body part from a deceased 344
individual, donated for a purpose specified in Chapter 2108. of 345
the Revised Code, and that needs medical information about the 346
deceased individual to ensure that the body part is medically 347
acceptable for its intended purpose; 348
(f) Health care facility staff committees or accreditation 350
or oversight review organizations conducting program monitoring, 351
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program evaluation, or service reviews; 352
(g) A health care provider, emergency medical services 354
worker, or peace officer who sustained a significant exposure to 355
the body fluids of another individual, if that individual was 356
tested pursuant to division (E)(6) of section 3701.242 of the 357
Revised Code, except that the identity of the individual tested 358
shall not be revealed; 359
(h) To law enforcement authorities pursuant to a search 361
warrant or a subpoena issued by or at the request of a grand 362
jury, a prosecuting attorney, A city director of law or similar 363
chief legal officer of a municipal corporation, or A village 364
solicitor, in connection with a criminal investigation or 365
prosecution. 366
(2) The results of an HIV test or a diagnosis of AIDS or 368
an AIDS-related condition may be disclosed to a health care 369
provider, or an authorized agent or employee of a health care 370
facility or a health care provider, if the provider, agent, or 371
employee has a medical need to know the information and is 372
participating in the diagnosis, care, or treatment of the 373
individual on whom the test was performed or who has been 374
diagnosed as having AIDS or an AIDS-related condition. 375
This division does not impose a standard of disclosure 377
different from the standard for disclosure of all other specific 378
information about a patient to health care providers and 379
facilities. Disclosure may not be requested or made solely for 380
the purpose of identifying an individual who has a positive HIV 381
test result or has been diagnosed as having AIDS or an 383
AIDS-related condition in order to refuse to treat the
individual. Referral of an individual to another health care 384
provider or facility based on reasonable professional judgment 385
does not constitute refusal to treat the individual. 386
(3) Not later than ninety days after November 1, 1989, 388
each health care facility in this state shall establish a 389
protocol to be followed by employees and individuals affiliated 390
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with the facility in making disclosures authorized by division 391
(B)(2) of this section. A person employed by or affiliated with 392
a health care facility who determines in accordance with the 393
protocol established by the facility that a disclosure is 394
authorized by division (B)(2) of this section is immune from 395
liability to any person in a civil action for damages for injury, 396
death, or loss to person or property resulting from the 397
disclosure. 398
(C)(1) Any person or government agency may seek access to 400
or authority to disclose the HIV test records of an individual in 401
accordance with the following provisions: 402
(a) The person or government agency shall bring an action 404
in a court of common pleas requesting disclosure of or authority 405
to disclose the results of an HIV test of a specific individual, 406
who shall be identified in the complaint by a pseudonym but whose 407
name shall be communicated to the court confidentially, pursuant 408
to a court order restricting the use of the name. The court 409
shall provide the individual with notice and an opportunity to 410
participate in the proceedings if he THE INDIVIDUAL is not named 412
as a party. Proceedings shall be conducted in chambers unless the 413
individual agrees to a hearing in open court. 414
(b) The court may issue an order granting the plaintiff 416
access to or authority to disclose the test results only if the 417
court finds by clear and convincing evidence that the plaintiff 418
has demonstrated a compelling need for disclosure of the 419
information that cannot be accommodated by other means. In 420
assessing compelling need, the court shall weigh the need for 421
disclosure against the privacy right of the individual tested and 422
against any disservice to the public interest that might result 423
from the disclosure, such as discrimination against the 424
individual or the deterrence of others from being tested. 425
(c) If the court issues an order, it shall guard against 427
unauthorized disclosure by specifying the persons who may have 428
access to the information, the purposes for which the information 429
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shall be used, and prohibitions against future disclosure. 430
(2) A person or government agency that considers it 432
necessary to disclose the results of an HIV test of a specific 433
individual in an action in which it is a party may seek authority 434
for the disclosure by filing an in camera motion with the court 435
in which the action is being heard. In hearing the motion, the 436
court shall employ procedures for confidentiality similar to 437
those specified in division (C)(1) of this section. The court 438
shall grant the motion only if it finds by clear and convincing 439
evidence that a compelling need for the disclosure has been 440
demonstrated. 441
(3) Except for an order issued in a criminal prosecution 443
or an order under division (C)(1) or (2) of this section granting 444
disclosure of the result of an HIV test of a specific individual, 445
a court shall not compel a blood bank, hospital blood center, or 446
blood collection facility to disclose the result of HIV tests 447
performed on the blood of voluntary donors in a way that reveals 448
the identity of any donor. 449
(4) In a civil action in which the plaintiff seeks to 451
recover damages from an individual defendant based on an 452
allegation that the plaintiff contracted the HIV virus as a 453
result of actions of the defendant, the prohibitions against 454
disclosure in this section do not bar discovery of the results of 455
any HIV test given to the defendant or any diagnosis that the 456
defendant suffers from AIDS or an AIDS-related condition. 457
(D) The results of an HIV test or the identity of an 459
individual on whom an HIV test is performed or who is diagnosed 460
as having AIDS or an AIDS-related condition may be disclosed to a 462
federal, state, or local government agency, or the official
representative of such an agency, for purposes of the medical 463
assistance program established under section 5111.01 of the 464
Revised Code, the medicare program established under Title XVIII 465
of the "Social Security Act," 49 Stat. 620 (1935) 42 U.S.C.A. 466
301, as amended, or any other public assistance program. 467
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(E) Any disclosure pursuant to this section shall be in 469
writing and accompanied by a written statement that includes the 470
following or substantially similar language: "This information 471
has been disclosed to you from confidential records protected 472
from disclosure by state law. You shall make no further 473
disclosure of this information without the specific, written, and 474
informed release of the individual to whom it pertains, or as 475
otherwise permitted by state law. A general authorization for 476
the release of medical or other information is not sufficient for 477
the purpose of the release of HIV test results or diagnoses." 478
(F) An individual who knows that he THE INDIVIDUAL has 480
received a positive result on an HIV test or has been diagnosed 481
as having AIDS or an AIDS-related condition, shall disclose this 484
information to any other person with whom he THE INDIVIDUAL 485
intends to make common use of a hypodermic needle or engage in 487
sexual conduct as defined in section 2907.01 of the Revised Code. 488
AN INDIVIDUAL'S COMPLIANCE WITH THIS DIVISION DOES NOT PROHIBIT A 489
PROSECUTION OF THE INDIVIDUAL FOR A VIOLATION OF DIVISION (B) OF 490
SECTION 2903.11 OF THE REVISED CODE. 491
(G) Nothing in this section prohibits the introduction of 493
evidence concerning and AN HIV test of a specific individual in a 495
criminal proceeding. 496
Section 2. That existing sections 2903.11, 2907.27, 498
2907.28, and 3701.243 of the Revised Code are hereby repealed. 499
Section 3. Section 2907.28 of the Revised Code is 501
presented in this act as a composite of the section as amended by 502
both Sub. H.B. 40 and Am. Sub. H.B. 445 of the 121st General 503
Assembly, with the new language of neither of the acts shown in 505
capital letters. This is in recognition of the principle stated 506
in division (B) of section 1.52 of the Revised Code that such 507
amendments are to be harmonized where not substantively 508
irreconcilable and constitutes a legislative finding that such is 509
the resulting version in effect prior to the effective date of 510
this act.