As Reported by House Criminal Justice Committee 1
123rd General Assembly 4
Regular Session Am. H. B. No. 100 5
1999-2000 6
REPRESENTATIVES YOUNG-ALLEN-BARRETT-BRADING-BRITTON-BUCHY- 8
CALLENDER-CATES-CORBIN-CORE-DAMSCHRODER-DePIERO-EVANS- 9
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- 12
SULZER-TAYLOR-TERWILLEGER-THOMAS-VAN VYVEN-VESPER-WILLAMOWSKI- 13
WILLIAMS-BUEHRER-GOODMAN 14
_________________________________________________________________ 15
A B I L L
To amend sections 2903.11, 2907.27, 2907.28, and 17
3701.243 of the Revised Code to include within 18
the offense of felonious assault a prohibition
against any person, who knows that the person 20
tested positive for HIV, engaging in sexual 21
conduct with a minor or an unsuspecting adult 23
partner and to require that a person arrested for 24
violating that prohibition be tested for HIV 25
under certain circumstances.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 27
Section 1. That sections 2903.11, 2907.27, 2907.28, and 29
3701.243 of the Revised Code be amended to read as follows: 30
Sec. 2903.11. (A) No person shall knowingly DO EITHER OF 39
THE FOLLOWING: 40
(1) Cause serious physical harm to another or to another's 42
unborn;
(2) Cause or attempt to cause physical harm to another or 44
to another's unborn by means of a deadly weapon or dangerous 45
ordnance, as defined in section 2923.11 of the Revised Code. 46
(B) NO PERSON, WITH KNOWLEDGE THAT THE PERSON HAS TESTED 48
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POSITIVE AS A CARRIER OF A VIRUS THAT CAUSES ACQUIRED 49
IMMUNODEFICIENCY SYNDROME, SHALL KNOWINGLY DO ANY OF THE 50
FOLLOWING:
(1) ENGAGE IN SEXUAL CONDUCT WITH ANOTHER PERSON WITHOUT 52
DISCLOSING THAT KNOWLEDGE TO THE OTHER PERSON PRIOR TO ENGAGING 53
IN THE SEXUAL CONDUCT;
(2) ENGAGE IN SEXUAL CONDUCT WITH A PERSON WHOM THE 55
OFFENDER KNOWS OR HAS REASONABLE CAUSE TO BELIEVE LACKS THE 57
MENTAL CAPACITY TO APPRECIATE THE SIGNIFICANCE OF THE KNOWLEDGE
THAT THE OFFENDER HAS TESTED POSITIVE AS A CARRIER OF A VIRUS 58
THAT CAUSES ACQUIRED IMMUNODEFICIENCY SYNDROME; 59
(3) ENGAGE IN SEXUAL CONDUCT WITH A PERSON UNDER EIGHTEEN 61
YEARS OF AGE WHO IS NOT THE SPOUSE OF THE OFFENDER. 62
(C) THE PROSECUTION OF A PERSON UNDER THIS SECTION DOES 64
NOT PRECLUDE PROSECUTION OF THAT PERSON UNDER SECTION 2907.02 OF 66
THE REVISED CODE.
(D) Whoever violates this section is guilty of felonious 68
assault, a felony of the second degree. If the victim of the 70
offense A VIOLATION OF DIVISION (A) OF THIS SECTION is a peace 71
officer, as defined in section 2935.01 of the Revised Code, 72
felonious assault is a felony of the first degree. 74
(E) AS USED IN THIS SECTION: 76
(1) "DEADLY WEAPON" AND "DANGEROUS ORDNANCE" HAVE THE SAME 78
MEANINGS AS IN SECTION 2923.11 OF THE REVISED CODE. 79
(2) "PEACE OFFICER" HAS THE SAME MEANING AS IN SECTION 81
2935.01 OF THE REVISED CODE.
(3) "SEXUAL CONDUCT" HAS THE SAME MEANING AS IN SECTION 83
2907.01 OF THE REVISED CODE.
Sec. 2907.27. (A)(1) If a person is charged with a 92
violation of section 2907.02, 2907.03, 2907.04, 2907.24, 93
2907.241, or 2907.25 of the Revised Code or with a violation of a 94
municipal ordinance that is substantially equivalent to any of 95
those sections, the arresting authorities or a court, upon the 96
request of the prosecutor in the case or upon the request of the 97
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victim, shall cause the accused to submit to one or more 98
appropriate tests to determine if the accused is suffering from a 99
venereal disease.
(2) If the accused is found to be suffering from a 101
venereal disease in an infectious stage, the accused shall be 102
required to submit to medical treatment for that disease. The 104
cost of the medical treatment shall be charged to and paid by the 105
accused who undergoes the treatment. If the accused is indigent, 106
the court shall order the accused to report to a facility 108
operated by a city health district or a general health district
for treatment. If the accused is convicted of or pleads guilty 110
to the offense with which the accused is charged and is placed on 112
probation, a condition of probation shall be that the offender 113
submit to and faithfully follow a course of medical treatment for 114
the venereal disease. If the offender does not seek the required 115
medical treatment, the court may revoke the offender's probation 117
and order the offender to undergo medical treatment during the
period of the offender's incarceration and to pay the cost of 119
that treatment.
(B)(1)(a) Notwithstanding the requirements for informed 121
consent in section 3701.242 of the Revised Code, if a person is 122
charged with a violation of DIVISION (B) OF SECTION 2903.11 OR OF 123
section 2907.02, 2907.03, 2907.04, 2907.05, 2907.12, 2907.24, 125
2907.241, or 2907.25 of the Revised Code or with a violation of a 126
municipal ordinance that is substantially equivalent to THAT 127
DIVISION OR any of those sections, the court, upon the request of 129
the prosecutor in the case, upon the request of the victim, or 130
upon the request of any other person whom the court reasonably 132
believes had contact with the accused in circumstances related to 133
the violation that could have resulted in the transmission to 134
that person of a virus that causes acquired immunodeficiency
syndrome, shall cause the accused to submit to one or more tests 136
designated by the director of health under section 3701.241 of 137
the Revised Code to determine if the accused is a carrier of a 138
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virus that causes acquired immunodeficiency syndrome. The court, 139
upon the request of the prosecutor in the case, upon the request 140
of the victim with the agreement of the prosecutor, or upon the 141
request of any other person with the agreement of the prosecutor, 142
may cause an accused who is charged with a violation of any other 143
section of the Revised Code or with a violation of any other 144
municipal ordinance to submit to one or more tests so designated 145
by the director of health if the circumstances of the violation 146
indicate probable cause to believe that the accused, if the 147
accused is infected with the virus that causes acquired 148
immunodeficiency syndrome, might have transmitted the virus to 149
any of the following persons in committing the violation: 150
(i) In relation to a request made by the prosecuting 152
attorney, to the victim or to any other person; 153
(ii) In relation to a request made by the victim, to the 155
victim making the request; 156
(iii) In relation to a request made by any other person, 158
to the person making the request. 159
(b) The results of a test performed under division 161
(B)(1)(a) of this section shall be communicated in confidence to 163
the court, and the court shall inform the accused of the result. 164
The court shall inform the victim that the test was performed and 165
that the victim has a right to receive the results on request. 166
If the test was performed upon the request of a person other than 167
the prosecutor in the case and other than the victim, the court 168
shall inform the person who made the request that the test was 169
performed and that the person has a right to receive the results
upon request. Additionally, regardless of who made the request 170
that was the basis of the test being performed, if the court 171
reasonably believes that, in circumstances related to the 172
violation, a person other than the victim had contact with the 173
accused that could have resulted in the transmission of the virus 174
to that person, the court may inform that person that the test 175
was performed and that the person has a right to receive the 176
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results of the test on request. If the accused tests positive 177
for a virus that causes acquired immunodeficiency syndrome, the 178
test results shall be reported to the department of health in 179
accordance with section 3701.24 of the Revised Code and to the 180
sheriff, head of the state correctional institution, or other 181
person in charge of any jail or prison in which the accused is 182
incarcerated. If the accused tests positive for a virus that 184
causes acquired immunodeficiency syndrome and the accused was
charged with, and was convicted of or pleaded guilty to, a 185
violation of section 2907.24, 2907.241, or 2907.25 of the Revised 186
Code or a violation of a municipal ordinance that is 187
substantially equivalent to any of those sections, the test 188
results also shall be reported to the law enforcement agency that 189
arrested the accused, and the law enforcement agency may use the 190
test results as the basis for any future charge of a violation of 191
division (B) of any of those sections or a violation of a 192
municipal ordinance that is substantially equivalent to division 193
(B) of any of those sections. No other disclosure of the test 194
results or the fact that a test was performed shall be made, 195
other than as evidence in a grand jury proceeding or as evidence 196
in a judicial proceeding in accordance with the Rules of 197
Evidence. If the test result is negative, and the charge has not 199
been dismissed or if the accused has been convicted of the charge 200
or a different offense arising out of the same circumstances as 201
the offense charged, the court shall order that the test be 202
repeated not earlier than three months nor later than six months 203
after the original test.
(2) If an accused who is free on bond refuses to submit to 206
a test ordered by the court pursuant to division (B)(1) of this 207
section, the court may order that the accused's bond be revoked 208
and that the accused be incarcerated until the test is performed. 209
If an accused who is incarcerated refuses to submit to a test 210
ordered by the court pursuant to division (B)(1) of this section, 211
the court shall order the person in charge of the jail or prison 212
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in which the accused is incarcerated to take any action necessary 213
to facilitate the performance of the test, including the forcible 214
restraint of the accused for the purpose of drawing blood to be 215
used in the test.
(3) A state agency, a political subdivision of the state, 218
or an employee of a state agency or of a political subdivision of 219
the state is immune from liability in a civil action to recover 220
damages for injury, death, or loss to person or property 221
allegedly caused by any act or omission in connection with the 222
performance of the duties required under division (B)(2) of this 223
section unless the acts or omissions are with malicious purpose, 224
in bad faith, or in a wanton or reckless manner. 225
Sec. 2907.28. (A) Any cost incurred by a hospital or 234
other emergency medical facility in conducting a medical 235
examination of a victim of an offense under any provision of 236
sections 2907.02 to 2907.06 of the Revised Code for the purpose 237
of gathering physical evidence for a possible prosecution shall 238
be charged to and paid by the appropriate local government as 239
follows: 240
(1) Cost incurred by a county facility shall be charged to 242
and paid by the county; 243
(2) Cost incurred by a municipal facility shall be charged 245
to and paid by the municipal corporation; 246
(3) Cost incurred by a private facility shall be charged 248
to and paid by the municipal corporation in which the alleged 249
offense was committed, or charged to and paid by the county, if 250
committed within an unincorporated area. If separate counts of 251
an offense or separate offenses under any provisions of sections 252
2907.02 to 2907.06 of the Revised Code took place in more than 253
one municipal corporation or more than one unincorporated area, 254
or both, the local governments shall share the cost of the 255
examination. 256
(B) Any cost incurred by a hospital or other emergency 258
medical facility in conducting a medical examination and test of 259
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any person who is charged with a violation of DIVISION (B) OF 260
SECTION 2903.11 OR OF section 2907.02, 2907.03, 2907.04, 2907.05, 262
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 263
with a violation of a municipal ordinance that is substantially 264
equivalent to THAT DIVISION OR any of those sections, pursuant to 266
division (B) of section 2907.27 of the Revised Code, shall be 267
charged to and paid by the accused who undergoes the examination 268
and test, unless the court determines that the accused is unable 270
to pay, in which case the cost shall be charged to and paid by 272
the municipal corporation in which the offense allegedly was
committed, or charged to and paid by the county if the offense 273
allegedly was committed within an unincorporated area. If 274
separate counts of an alleged offense or alleged separate 275
offenses under section 2907.02, 2907.03, 2907.04, 2907.05, 276
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 278
under a municipal ordinance that is substantially equivalent to 279
any of those sections took place in more than one municipal 280
corporation or more than one unincorporated area, or both, the 281
local governments shall share the cost of the examination and 282
test. If a hospital or other emergency medical facility has 283
submitted charges for the cost of a medical examination and test 284
to an accused and has been unable to collect payment for the 285
charges after making good faith attempts to collect for a period 286
of six months or more, the cost shall be charged to and paid by 287
the appropriate municipal corporation or county as specified in 288
division (B) of this section. 289
Sec. 3701.243. (A) Except as provided in this section or 298
section 3701.248 of the Revised Code, no person or agency of 299
state or local government that acquires the information while 300
providing any health care service or while in the employ of a 301
health care facility or health care provider shall disclose or 302
compel another to disclose any of the following: 303
(1) The identity of any individual on whom an HIV test is 305
performed; 306
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(2) The results of an HIV test in a form that identifies 308
the individual tested; 309
(3) The identity of any individual diagnosed as having 311
AIDS or an AIDS-related condition. 312
(B)(1) Except as provided in divisions (B)(2), (C), (D), 314
and (F) of this section, the results of an HIV test or the 315
identity of an individual on whom an HIV test is performed or who 316
is diagnosed as having AIDS or an AIDS-related condition may be 318
disclosed only to the following: 319
(a) The individual who was tested or the individual's 321
legal guardian, and his THE INDIVIDUAL'S spouse or any sexual 322
partner; 323
(b) A person to whom disclosure is authorized by a written 325
release, executed by the individual tested or by his THE 326
INDIVIDUAL'S legal guardian and specifying to whom disclosure of 327
the test results or diagnosis is authorized and the time period 329
during which the release is to be effective; 330
(c) The individual's physician; 332
(d) The department of health or a health commissioner to 334
which reports are made under section 3701.24 of the Revised Code; 335
(e) A health care facility or provider that procures, 337
processes, distributes, or uses a human body part from a deceased 338
individual, donated for a purpose specified in Chapter 2108. of 339
the Revised Code, and that needs medical information about the 340
deceased individual to ensure that the body part is medically 341
acceptable for its intended purpose; 342
(f) Health care facility staff committees or accreditation 344
or oversight review organizations conducting program monitoring, 345
program evaluation, or service reviews; 346
(g) A health care provider, emergency medical services 348
worker, or peace officer who sustained a significant exposure to 349
the body fluids of another individual, if that individual was 350
tested pursuant to division (E)(6) of section 3701.242 of the 351
Revised Code, except that the identity of the individual tested 352
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shall not be revealed; 353
(h) To law enforcement authorities pursuant to a search 355
warrant or a subpoena issued by or at the request of a grand 356
jury, a prosecuting attorney, A city director of law or similar 357
chief legal officer of a municipal corporation, or A village 358
solicitor, in connection with a criminal investigation or 359
prosecution. 360
(2) The results of an HIV test or a diagnosis of AIDS or 362
an AIDS-related condition may be disclosed to a health care 363
provider, or an authorized agent or employee of a health care 364
facility or a health care provider, if the provider, agent, or 365
employee has a medical need to know the information and is 366
participating in the diagnosis, care, or treatment of the 367
individual on whom the test was performed or who has been 368
diagnosed as having AIDS or an AIDS-related condition. 369
This division does not impose a standard of disclosure 371
different from the standard for disclosure of all other specific 372
information about a patient to health care providers and 373
facilities. Disclosure may not be requested or made solely for 374
the purpose of identifying an individual who has a positive HIV 375
test result or has been diagnosed as having AIDS or an 377
AIDS-related condition in order to refuse to treat the
individual. Referral of an individual to another health care 378
provider or facility based on reasonable professional judgment 379
does not constitute refusal to treat the individual. 380
(3) Not later than ninety days after November 1, 1989, 382
each health care facility in this state shall establish a 383
protocol to be followed by employees and individuals affiliated 384
with the facility in making disclosures authorized by division 385
(B)(2) of this section. A person employed by or affiliated with 386
a health care facility who determines in accordance with the 387
protocol established by the facility that a disclosure is 388
authorized by division (B)(2) of this section is immune from 389
liability to any person in a civil action for damages for injury, 390
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death, or loss to person or property resulting from the 391
disclosure. 392
(C)(1) Any person or government agency may seek access to 394
or authority to disclose the HIV test records of an individual in 395
accordance with the following provisions: 396
(a) The person or government agency shall bring an action 398
in a court of common pleas requesting disclosure of or authority 399
to disclose the results of an HIV test of a specific individual, 400
who shall be identified in the complaint by a pseudonym but whose 401
name shall be communicated to the court confidentially, pursuant 402
to a court order restricting the use of the name. The court 403
shall provide the individual with notice and an opportunity to 404
participate in the proceedings if he THE INDIVIDUAL is not named 406
as a party. Proceedings shall be conducted in chambers unless the 407
individual agrees to a hearing in open court. 408
(b) The court may issue an order granting the plaintiff 410
access to or authority to disclose the test results only if the 411
court finds by clear and convincing evidence that the plaintiff 412
has demonstrated a compelling need for disclosure of the 413
information that cannot be accommodated by other means. In 414
assessing compelling need, the court shall weigh the need for 415
disclosure against the privacy right of the individual tested and 416
against any disservice to the public interest that might result 417
from the disclosure, such as discrimination against the 418
individual or the deterrence of others from being tested. 419
(c) If the court issues an order, it shall guard against 421
unauthorized disclosure by specifying the persons who may have 422
access to the information, the purposes for which the information 423
shall be used, and prohibitions against future disclosure. 424
(2) A person or government agency that considers it 426
necessary to disclose the results of an HIV test of a specific 427
individual in an action in which it is a party may seek authority 428
for the disclosure by filing an in camera motion with the court 429
in which the action is being heard. In hearing the motion, the 430
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court shall employ procedures for confidentiality similar to 431
those specified in division (C)(1) of this section. The court 432
shall grant the motion only if it finds by clear and convincing 433
evidence that a compelling need for the disclosure has been 434
demonstrated. 435
(3) Except for an order issued in a criminal prosecution 437
or an order under division (C)(1) or (2) of this section granting 438
disclosure of the result of an HIV test of a specific individual, 439
a court shall not compel a blood bank, hospital blood center, or 440
blood collection facility to disclose the result of HIV tests 441
performed on the blood of voluntary donors in a way that reveals 442
the identity of any donor. 443
(4) In a civil action in which the plaintiff seeks to 445
recover damages from an individual defendant based on an 446
allegation that the plaintiff contracted the HIV virus as a 447
result of actions of the defendant, the prohibitions against 448
disclosure in this section do not bar discovery of the results of 449
any HIV test given to the defendant or any diagnosis that the 450
defendant suffers from AIDS or an AIDS-related condition. 451
(D) The results of an HIV test or the identity of an 453
individual on whom an HIV test is performed or who is diagnosed 454
as having AIDS or an AIDS-related condition may be disclosed to a 456
federal, state, or local government agency, or the official
representative of such an agency, for purposes of the medical 457
assistance program established under section 5111.01 of the 458
Revised Code, the medicare program established under Title XVIII 459
of the "Social Security Act," 49 Stat. 620 (1935) 42 U.S.C.A. 460
301, as amended, or any other public assistance program. 461
(E) Any disclosure pursuant to this section shall be in 463
writing and accompanied by a written statement that includes the 464
following or substantially similar language: "This information 465
has been disclosed to you from confidential records protected 466
from disclosure by state law. You shall make no further 467
disclosure of this information without the specific, written, and 468
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informed release of the individual to whom it pertains, or as 469
otherwise permitted by state law. A general authorization for 470
the release of medical or other information is not sufficient for 471
the purpose of the release of HIV test results or diagnoses." 472
(F) An individual who knows that he THE INDIVIDUAL has 474
received a positive result on an HIV test or has been diagnosed 475
as having AIDS or an AIDS-related condition, shall disclose this 478
information to any other person with whom he THE INDIVIDUAL 479
intends to make common use of a hypodermic needle or engage in 481
sexual conduct as defined in section 2907.01 of the Revised Code. 482
AN INDIVIDUAL'S COMPLIANCE WITH THIS DIVISION DOES NOT PROHIBIT A 483
PROSECUTION OF THE INDIVIDUAL FOR A VIOLATION OF DIVISION (B) OF 484
SECTION 2903.11 OF THE REVISED CODE. 485
(G) Nothing in this section prohibits the introduction of 487
evidence concerning and AN HIV test of a specific individual in a 489
criminal proceeding. 490
Section 2. That existing sections 2903.11, 2907.27, 492
2907.28, and 3701.243 of the Revised Code are hereby repealed. 493
Section 3. Section 2907.28 of the Revised Code is 495
presented in this act as a composite of the section as amended by 496
both Sub. H.B. 40 and Am. Sub. H.B. 445 of the 121st General 497
Assembly, with the new language of neither of the acts shown in 499
capital letters. This is in recognition of the principle stated 500
in division (B) of section 1.52 of the Revised Code that such 501
amendments are to be harmonized where not substantively 502
irreconcilable and constitutes a legislative finding that such is 503
the resulting version in effect prior to the effective date of 504
this act.