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           

                                                          2      

                                                                 
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.                                                    

                                                          3      

                                                                 
      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          

                                                          4      

                                                                 
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          

                                                          5      

                                                                 
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          

                                                          6      

                                                                 
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          

                                                          7      

                                                                 
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          

                                                          8      

                                                                 
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          

                                                          9      

                                                                 
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          

                                                          10     

                                                                 
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          

                                                          11     

                                                                 
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          

                                                          12     

                                                                 
      (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.