As Reported by the Senate Judiciary 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-TIBERI-CAREY-PETERSON-HAINES-BARNES- 14
SULLIVAN-VERICH-MAIER-CALVERT-CLANCY-HOLLISTER-HARRIS-PRINGLE- 15
AUSTRIA-SCHURING-BOYD-JAMES 16
_________________________________________________________________ 18
A B I L L
To amend sections 2903.11, 2907.27, 2907.28, and 20
3701.243 of the Revised Code to include within 21
the offense of felonious assault a prohibition
against any person, who knows that the person 23
tested positive for HIV, engaging in sexual 24
conduct with a minor or an unsuspecting adult 26
partner and to require that a person arrested for 27
violating that prohibition be tested for HIV 28
under certain circumstances.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 30
Section 1. That sections 2903.11, 2907.27, 2907.28, and 32
3701.243 of the Revised Code be amended to read as follows: 33
Sec. 2903.11. (A) No person shall knowingly DO EITHER OF 42
THE FOLLOWING: 43
(1) Cause serious physical harm to another or to another's 45
unborn;
(2) Cause or attempt to cause physical harm to another or 47
to another's unborn by means of a deadly weapon or dangerous 48
2
ordnance, as defined in section 2923.11 of the Revised Code. 49
(B) NO PERSON, WITH KNOWLEDGE THAT THE PERSON HAS TESTED 51
POSITIVE AS A CARRIER OF A VIRUS THAT CAUSES ACQUIRED 52
IMMUNODEFICIENCY SYNDROME, SHALL KNOWINGLY DO ANY OF THE 53
FOLLOWING:
(1) ENGAGE IN SEXUAL CONDUCT WITH ANOTHER PERSON WITHOUT 55
DISCLOSING THAT KNOWLEDGE TO THE OTHER PERSON PRIOR TO ENGAGING 56
IN THE SEXUAL CONDUCT;
(2) ENGAGE IN SEXUAL CONDUCT WITH A PERSON WHOM THE 58
OFFENDER KNOWS OR HAS REASONABLE CAUSE TO BELIEVE LACKS THE 60
MENTAL CAPACITY TO APPRECIATE THE SIGNIFICANCE OF THE KNOWLEDGE
THAT THE OFFENDER HAS TESTED POSITIVE AS A CARRIER OF A VIRUS 61
THAT CAUSES ACQUIRED IMMUNODEFICIENCY SYNDROME; 62
(3) ENGAGE IN SEXUAL CONDUCT WITH A PERSON UNDER EIGHTEEN 64
YEARS OF AGE WHO IS NOT THE SPOUSE OF THE OFFENDER. 65
(C) THE PROSECUTION OF A PERSON UNDER THIS SECTION DOES 67
NOT PRECLUDE PROSECUTION OF THAT PERSON UNDER SECTION 2907.02 OF 69
THE REVISED CODE.
(D) Whoever violates this section is guilty of felonious 71
assault, a felony of the second degree. If the victim of the 73
offense A VIOLATION OF DIVISION (A) OF THIS SECTION is a peace 74
officer, as defined in section 2935.01 of the Revised Code, 75
felonious assault is a felony of the first degree. 77
(E) AS USED IN THIS SECTION: 79
(1) "DEADLY WEAPON" AND "DANGEROUS ORDNANCE" HAVE THE SAME 81
MEANINGS AS IN SECTION 2923.11 OF THE REVISED CODE. 82
(2) "PEACE OFFICER" HAS THE SAME MEANING AS IN SECTION 84
2935.01 OF THE REVISED CODE.
(3) "SEXUAL CONDUCT" HAS THE SAME MEANING AS IN SECTION 86
2907.01 OF THE REVISED CODE.
Sec. 2907.27. (A)(1) If a person is charged with a 95
violation of section 2907.02, 2907.03, 2907.04, 2907.24, 96
2907.241, or 2907.25 of the Revised Code or with a violation of a 97
municipal ordinance that is substantially equivalent to any of 98
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those sections, the arresting authorities or a court, upon the 99
request of the prosecutor in the case or upon the request of the 100
victim, shall cause the accused to submit to one or more 101
appropriate tests to determine if the accused is suffering from a 102
venereal disease.
(2) If the accused is found to be suffering from a 104
venereal disease in an infectious stage, the accused shall be 105
required to submit to medical treatment for that disease. The 107
cost of the medical treatment shall be charged to and paid by the 108
accused who undergoes the treatment. If the accused is indigent, 109
the court shall order the accused to report to a facility 111
operated by a city health district or a general health district
for treatment. If the accused is convicted of or pleads guilty 113
to the offense with which the accused is charged and is placed on 115
probation, a condition of probation shall be that the offender 116
submit to and faithfully follow a course of medical treatment for 117
the venereal disease. If the offender does not seek the required 118
medical treatment, the court may revoke the offender's probation 120
and order the offender to undergo medical treatment during the
period of the offender's incarceration and to pay the cost of 122
that treatment.
(B)(1)(a) Notwithstanding the requirements for informed 124
consent in section 3701.242 of the Revised Code, if a person is 125
charged with a violation of DIVISION (B) OF SECTION 2903.11 OR OF 126
section 2907.02, 2907.03, 2907.04, 2907.05, 2907.12, 2907.24, 128
2907.241, or 2907.25 of the Revised Code or with a violation of a 129
municipal ordinance that is substantially equivalent to THAT 130
DIVISION OR any of those sections, the court, upon the request of 132
the prosecutor in the case, upon the request of the victim, or 133
upon the request of any other person whom the court reasonably 135
believes had contact with the accused in circumstances related to 136
the violation that could have resulted in the transmission to 137
that person of a virus that causes acquired immunodeficiency
syndrome, shall cause the accused to submit to one or more tests 139
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designated by the director of health under section 3701.241 of 140
the Revised Code to determine if the accused is a carrier of a 141
virus that causes acquired immunodeficiency syndrome. The court, 142
upon the request of the prosecutor in the case, upon the request 143
of the victim with the agreement of the prosecutor, or upon the 144
request of any other person with the agreement of the prosecutor, 145
may cause an accused who is charged with a violation of any other 146
section of the Revised Code or with a violation of any other 147
municipal ordinance to submit to one or more tests so designated 148
by the director of health if the circumstances of the violation 149
indicate probable cause to believe that the accused, if the 150
accused is infected with the virus that causes acquired 151
immunodeficiency syndrome, might have transmitted the virus to 152
any of the following persons in committing the violation: 153
(i) In relation to a request made by the prosecuting 155
attorney, to the victim or to any other person; 156
(ii) In relation to a request made by the victim, to the 158
victim making the request; 159
(iii) In relation to a request made by any other person, 161
to the person making the request. 162
(b) The results of a test performed under division 164
(B)(1)(a) of this section shall be communicated in confidence to 166
the court, and the court shall inform the accused of the result. 167
The court shall inform the victim that the test was performed and 168
that the victim has a right to receive the results on request. 169
If the test was performed upon the request of a person other than 170
the prosecutor in the case and other than the victim, the court 171
shall inform the person who made the request that the test was 172
performed and that the person has a right to receive the results
upon request. Additionally, regardless of who made the request 173
that was the basis of the test being performed, if the court 174
reasonably believes that, in circumstances related to the 175
violation, a person other than the victim had contact with the 176
accused that could have resulted in the transmission of the virus 177
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to that person, the court may inform that person that the test 178
was performed and that the person has a right to receive the 179
results of the test on request. If the accused tests positive 180
for a virus that causes acquired immunodeficiency syndrome, the 181
test results shall be reported to the department of health in 182
accordance with section 3701.24 of the Revised Code and to the 183
sheriff, head of the state correctional institution, or other 184
person in charge of any jail or prison in which the accused is 185
incarcerated. If the accused tests positive for a virus that 187
causes acquired immunodeficiency syndrome and the accused was
charged with, and was convicted of or pleaded guilty to, a 188
violation of section 2907.24, 2907.241, or 2907.25 of the Revised 189
Code or a violation of a municipal ordinance that is 190
substantially equivalent to any of those sections, the test 191
results also shall be reported to the law enforcement agency that 192
arrested the accused, and the law enforcement agency may use the 193
test results as the basis for any future charge of a violation of 194
division (B) of any of those sections or a violation of a 195
municipal ordinance that is substantially equivalent to division 196
(B) of any of those sections. No other disclosure of the test 197
results or the fact that a test was performed shall be made, 198
other than as evidence in a grand jury proceeding or as evidence 199
in a judicial proceeding in accordance with the Rules of 200
Evidence. If the test result is negative, and the charge has not 202
been dismissed or if the accused has been convicted of the charge 203
or a different offense arising out of the same circumstances as 204
the offense charged, the court shall order that the test be 205
repeated not earlier than three months nor later than six months 206
after the original test.
(2) If an accused who is free on bond refuses to submit to 209
a test ordered by the court pursuant to division (B)(1) of this 210
section, the court may order that the accused's bond be revoked 211
and that the accused be incarcerated until the test is performed. 212
If an accused who is incarcerated refuses to submit to a test 213
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ordered by the court pursuant to division (B)(1) of this section, 214
the court shall order the person in charge of the jail or prison 215
in which the accused is incarcerated to take any action necessary 216
to facilitate the performance of the test, including the forcible 217
restraint of the accused for the purpose of drawing blood to be 218
used in the test.
(3) A state agency, a political subdivision of the state, 221
or an employee of a state agency or of a political subdivision of 222
the state is immune from liability in a civil action to recover 223
damages for injury, death, or loss to person or property 224
allegedly caused by any act or omission in connection with the 225
performance of the duties required under division (B)(2) of this 226
section unless the acts or omissions are with malicious purpose, 227
in bad faith, or in a wanton or reckless manner. 228
Sec. 2907.28. (A) Any cost incurred by a hospital or 237
other emergency medical facility in conducting a medical 238
examination of a victim of an offense under any provision of 239
sections 2907.02 to 2907.06 of the Revised Code for the purpose 240
of gathering physical evidence for a possible prosecution shall 241
be charged to and paid by the appropriate local government as 242
follows: 243
(1) Cost incurred by a county facility shall be charged to 245
and paid by the county; 246
(2) Cost incurred by a municipal facility shall be charged 248
to and paid by the municipal corporation; 249
(3) Cost incurred by a private facility shall be charged 251
to and paid by the municipal corporation in which the alleged 252
offense was committed, or charged to and paid by the county, if 253
committed within an unincorporated area. If separate counts of 254
an offense or separate offenses under any provisions of sections 255
2907.02 to 2907.06 of the Revised Code took place in more than 256
one municipal corporation or more than one unincorporated area, 257
or both, the local governments shall share the cost of the 258
examination. 259
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(B) Any cost incurred by a hospital or other emergency 261
medical facility in conducting a medical examination and test of 262
any person who is charged with a violation of DIVISION (B) OF 263
SECTION 2903.11 OR OF section 2907.02, 2907.03, 2907.04, 2907.05, 265
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 266
with a violation of a municipal ordinance that is substantially 267
equivalent to THAT DIVISION OR any of those sections, pursuant to 269
division (B) of section 2907.27 of the Revised Code, shall be 270
charged to and paid by the accused who undergoes the examination 271
and test, unless the court determines that the accused is unable 273
to pay, in which case the cost shall be charged to and paid by 275
the municipal corporation in which the offense allegedly was
committed, or charged to and paid by the county if the offense 276
allegedly was committed within an unincorporated area. If 277
separate counts of an alleged offense or alleged separate 278
offenses under section 2907.02, 2907.03, 2907.04, 2907.05, 279
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 281
under a municipal ordinance that is substantially equivalent to 282
any of those sections took place in more than one municipal 283
corporation or more than one unincorporated area, or both, the 284
local governments shall share the cost of the examination and 285
test. If a hospital or other emergency medical facility has 286
submitted charges for the cost of a medical examination and test 287
to an accused and has been unable to collect payment for the 288
charges after making good faith attempts to collect for a period 289
of six months or more, the cost shall be charged to and paid by 290
the appropriate municipal corporation or county as specified in 291
division (B) of this section. 292
Sec. 3701.243. (A) Except as provided in this section or 301
section 3701.248 of the Revised Code, no person or agency of 302
state or local government that acquires the information while 303
providing any health care service or while in the employ of a 304
health care facility or health care provider shall disclose or 305
compel another to disclose any of the following: 306
8
(1) The identity of any individual on whom an HIV test is 308
performed; 309
(2) The results of an HIV test in a form that identifies 311
the individual tested; 312
(3) The identity of any individual diagnosed as having 314
AIDS or an AIDS-related condition. 315
(B)(1) Except as provided in divisions (B)(2), (C), (D), 317
and (F) of this section, the results of an HIV test or the 318
identity of an individual on whom an HIV test is performed or who 319
is diagnosed as having AIDS or an AIDS-related condition may be 321
disclosed only to the following: 322
(a) The individual who was tested or the individual's 324
legal guardian, and his THE INDIVIDUAL'S spouse or any sexual 325
partner; 326
(b) A person to whom disclosure is authorized by a written 328
release, executed by the individual tested or by his THE 329
INDIVIDUAL'S legal guardian and specifying to whom disclosure of 330
the test results or diagnosis is authorized and the time period 332
during which the release is to be effective; 333
(c) The individual's physician; 335
(d) The department of health or a health commissioner to 337
which reports are made under section 3701.24 of the Revised Code; 338
(e) A health care facility or provider that procures, 340
processes, distributes, or uses a human body part from a deceased 341
individual, donated for a purpose specified in Chapter 2108. of 342
the Revised Code, and that needs medical information about the 343
deceased individual to ensure that the body part is medically 344
acceptable for its intended purpose; 345
(f) Health care facility staff committees or accreditation 347
or oversight review organizations conducting program monitoring, 348
program evaluation, or service reviews; 349
(g) A health care provider, emergency medical services 351
worker, or peace officer who sustained a significant exposure to 352
the body fluids of another individual, if that individual was 353
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tested pursuant to division (E)(6) of section 3701.242 of the 354
Revised Code, except that the identity of the individual tested 355
shall not be revealed; 356
(h) To law enforcement authorities pursuant to a search 358
warrant or a subpoena issued by or at the request of a grand 359
jury, a prosecuting attorney, A city director of law or similar 360
chief legal officer of a municipal corporation, or A village 361
solicitor, in connection with a criminal investigation or 362
prosecution. 363
(2) The results of an HIV test or a diagnosis of AIDS or 365
an AIDS-related condition may be disclosed to a health care 366
provider, or an authorized agent or employee of a health care 367
facility or a health care provider, if the provider, agent, or 368
employee has a medical need to know the information and is 369
participating in the diagnosis, care, or treatment of the 370
individual on whom the test was performed or who has been 371
diagnosed as having AIDS or an AIDS-related condition. 372
This division does not impose a standard of disclosure 374
different from the standard for disclosure of all other specific 375
information about a patient to health care providers and 376
facilities. Disclosure may not be requested or made solely for 377
the purpose of identifying an individual who has a positive HIV 378
test result or has been diagnosed as having AIDS or an 380
AIDS-related condition in order to refuse to treat the
individual. Referral of an individual to another health care 381
provider or facility based on reasonable professional judgment 382
does not constitute refusal to treat the individual. 383
(3) Not later than ninety days after November 1, 1989, 385
each health care facility in this state shall establish a 386
protocol to be followed by employees and individuals affiliated 387
with the facility in making disclosures authorized by division 388
(B)(2) of this section. A person employed by or affiliated with 389
a health care facility who determines in accordance with the 390
protocol established by the facility that a disclosure is 391
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authorized by division (B)(2) of this section is immune from 392
liability to any person in a civil action for damages for injury, 393
death, or loss to person or property resulting from the 394
disclosure. 395
(C)(1) Any person or government agency may seek access to 397
or authority to disclose the HIV test records of an individual in 398
accordance with the following provisions: 399
(a) The person or government agency shall bring an action 401
in a court of common pleas requesting disclosure of or authority 402
to disclose the results of an HIV test of a specific individual, 403
who shall be identified in the complaint by a pseudonym but whose 404
name shall be communicated to the court confidentially, pursuant 405
to a court order restricting the use of the name. The court 406
shall provide the individual with notice and an opportunity to 407
participate in the proceedings if he THE INDIVIDUAL is not named 409
as a party. Proceedings shall be conducted in chambers unless the 410
individual agrees to a hearing in open court. 411
(b) The court may issue an order granting the plaintiff 413
access to or authority to disclose the test results only if the 414
court finds by clear and convincing evidence that the plaintiff 415
has demonstrated a compelling need for disclosure of the 416
information that cannot be accommodated by other means. In 417
assessing compelling need, the court shall weigh the need for 418
disclosure against the privacy right of the individual tested and 419
against any disservice to the public interest that might result 420
from the disclosure, such as discrimination against the 421
individual or the deterrence of others from being tested. 422
(c) If the court issues an order, it shall guard against 424
unauthorized disclosure by specifying the persons who may have 425
access to the information, the purposes for which the information 426
shall be used, and prohibitions against future disclosure. 427
(2) A person or government agency that considers it 429
necessary to disclose the results of an HIV test of a specific 430
individual in an action in which it is a party may seek authority 431
11
for the disclosure by filing an in camera motion with the court 432
in which the action is being heard. In hearing the motion, the 433
court shall employ procedures for confidentiality similar to 434
those specified in division (C)(1) of this section. The court 435
shall grant the motion only if it finds by clear and convincing 436
evidence that a compelling need for the disclosure has been 437
demonstrated. 438
(3) Except for an order issued in a criminal prosecution 440
or an order under division (C)(1) or (2) of this section granting 441
disclosure of the result of an HIV test of a specific individual, 442
a court shall not compel a blood bank, hospital blood center, or 443
blood collection facility to disclose the result of HIV tests 444
performed on the blood of voluntary donors in a way that reveals 445
the identity of any donor. 446
(4) In a civil action in which the plaintiff seeks to 448
recover damages from an individual defendant based on an 449
allegation that the plaintiff contracted the HIV virus as a 450
result of actions of the defendant, the prohibitions against 451
disclosure in this section do not bar discovery of the results of 452
any HIV test given to the defendant or any diagnosis that the 453
defendant suffers from AIDS or an AIDS-related condition. 454
(D) The results of an HIV test or the identity of an 456
individual on whom an HIV test is performed or who is diagnosed 457
as having AIDS or an AIDS-related condition may be disclosed to a 459
federal, state, or local government agency, or the official
representative of such an agency, for purposes of the medical 460
assistance program established under section 5111.01 of the 461
Revised Code, the medicare program established under Title XVIII 462
of the "Social Security Act," 49 Stat. 620 (1935) 42 U.S.C.A. 463
301, as amended, or any other public assistance program. 464
(E) Any disclosure pursuant to this section shall be in 466
writing and accompanied by a written statement that includes the 467
following or substantially similar language: "This information 468
has been disclosed to you from confidential records protected 469
12
from disclosure by state law. You shall make no further 470
disclosure of this information without the specific, written, and 471
informed release of the individual to whom it pertains, or as 472
otherwise permitted by state law. A general authorization for 473
the release of medical or other information is not sufficient for 474
the purpose of the release of HIV test results or diagnoses." 475
(F) An individual who knows that he THE INDIVIDUAL has 477
received a positive result on an HIV test or has been diagnosed 478
as having AIDS or an AIDS-related condition, shall disclose this 481
information to any other person with whom he THE INDIVIDUAL 482
intends to make common use of a hypodermic needle or engage in 484
sexual conduct as defined in section 2907.01 of the Revised Code. 485
AN INDIVIDUAL'S COMPLIANCE WITH THIS DIVISION DOES NOT PROHIBIT A 486
PROSECUTION OF THE INDIVIDUAL FOR A VIOLATION OF DIVISION (B) OF 487
SECTION 2903.11 OF THE REVISED CODE. 488
(G) Nothing in this section prohibits the introduction of 490
evidence concerning and AN HIV test of a specific individual in a 492
criminal proceeding. 493
Section 2. That existing sections 2903.11, 2907.27, 495
2907.28, and 3701.243 of the Revised Code are hereby repealed. 496
Section 3. Section 2907.28 of the Revised Code is 498
presented in this act as a composite of the section as amended by 499
both Sub. H.B. 40 and Am. Sub. H.B. 445 of the 121st General 500
Assembly, with the new language of neither of the acts shown in 502
capital letters. This is in recognition of the principle stated 503
in division (B) of section 1.52 of the Revised Code that such 504
amendments are to be harmonized where not substantively 505
irreconcilable and constitutes a legislative finding that such is 506
the resulting version in effect prior to the effective date of 507
this act.