As Passed by the Senate 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-SENATORS LATTA-OELSLAGER-WATTS- 16
GARDNER-CUPP-SPADA 17
_________________________________________________________________ 19
A B I L L
To amend sections 2903.11, 2907.27, 2907.28, and 21
3701.243 of the Revised Code to include within 22
the offense of felonious assault a prohibition
against any person, who knows that the person 24
tested positive for HIV, engaging in sexual 25
conduct with a minor or an unsuspecting adult 27
partner and to require that a person arrested for 28
violating that prohibition be tested for HIV 29
under certain circumstances.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 31
Section 1. That sections 2903.11, 2907.27, 2907.28, and 33
3701.243 of the Revised Code be amended to read as follows: 34
Sec. 2903.11. (A) No person shall knowingly DO EITHER OF 43
THE FOLLOWING: 44
(1) Cause serious physical harm to another or to another's 46
unborn;
(2) Cause or attempt to cause physical harm to another or 48
2
to another's unborn by means of a deadly weapon or dangerous 49
ordnance, as defined in section 2923.11 of the Revised Code. 50
(B) NO PERSON, WITH KNOWLEDGE THAT THE PERSON HAS TESTED 52
POSITIVE AS A CARRIER OF A VIRUS THAT CAUSES ACQUIRED 53
IMMUNODEFICIENCY SYNDROME, SHALL KNOWINGLY DO ANY OF THE 54
FOLLOWING:
(1) ENGAGE IN SEXUAL CONDUCT WITH ANOTHER PERSON WITHOUT 56
DISCLOSING THAT KNOWLEDGE TO THE OTHER PERSON PRIOR TO ENGAGING 57
IN THE SEXUAL CONDUCT;
(2) ENGAGE IN SEXUAL CONDUCT WITH A PERSON WHOM THE 59
OFFENDER KNOWS OR HAS REASONABLE CAUSE TO BELIEVE LACKS THE 61
MENTAL CAPACITY TO APPRECIATE THE SIGNIFICANCE OF THE KNOWLEDGE
THAT THE OFFENDER HAS TESTED POSITIVE AS A CARRIER OF A VIRUS 62
THAT CAUSES ACQUIRED IMMUNODEFICIENCY SYNDROME; 63
(3) ENGAGE IN SEXUAL CONDUCT WITH A PERSON UNDER EIGHTEEN 65
YEARS OF AGE WHO IS NOT THE SPOUSE OF THE OFFENDER. 66
(C) THE PROSECUTION OF A PERSON UNDER THIS SECTION DOES 68
NOT PRECLUDE PROSECUTION OF THAT PERSON UNDER SECTION 2907.02 OF 70
THE REVISED CODE.
(D) Whoever violates this section is guilty of felonious 72
assault, a felony of the second degree. If the victim of the 74
offense A VIOLATION OF DIVISION (A) OF THIS SECTION is a peace 75
officer, as defined in section 2935.01 of the Revised Code, 76
felonious assault is a felony of the first degree. If the victim 78
of the offense is a peace officer, as defined in section 2935.01 79
of the Revised Code, and if the victim suffered serious physical 80
harm as a result of the commission of the offense, felonious
assault is a felony of the first degree, and the court, pursuant 81
to division (F) of section 2929.13 of the Revised Code, shall 82
impose as a mandatory prison term one of the prison terms 83
prescribed for a felony of the first degree.
(E) AS USED IN THIS SECTION: 85
(1) "DEADLY WEAPON" AND "DANGEROUS ORDNANCE" HAVE THE SAME 87
MEANINGS AS IN SECTION 2923.11 OF THE REVISED CODE. 88
3
(2) "PEACE OFFICER" HAS THE SAME MEANING AS IN SECTION 90
2935.01 OF THE REVISED CODE.
(3) "SEXUAL CONDUCT" HAS THE SAME MEANING AS IN SECTION 92
2907.01 OF THE REVISED CODE, EXCEPT THAT, AS USED IN THIS 93
SECTION, IT DOES NOT INCLUDE THE INSERTION OF AN INSTRUMENT, 94
APPARATUS, OR OTHER OBJECT THAT IS NOT A PART OF THE BODY INTO
THE VAGINAL OR ANAL CAVITY OF ANOTHER, UNLESS THE OFFENDER KNEW 95
AT THE TIME OF THE INSERTION THAT THE INSTRUMENT, APPARATUS, OR 96
OTHER OBJECT CARRIED THE OFFENDER'S BODILY FLUID. 97
Sec. 2907.27. (A)(1) If a person is charged with a 106
violation of section 2907.02, 2907.03, 2907.04, 2907.24, 107
2907.241, or 2907.25 of the Revised Code or with a violation of a 108
municipal ordinance that is substantially equivalent to any of 109
those sections, the arresting authorities or a court, upon the 110
request of the prosecutor in the case or upon the request of the 111
victim, shall cause the accused to submit to one or more 112
appropriate tests to determine if the accused is suffering from a 113
venereal disease.
(2) If the accused is found to be suffering from a 115
venereal disease in an infectious stage, the accused shall be 116
required to submit to medical treatment for that disease. The 118
cost of the medical treatment shall be charged to and paid by the 119
accused who undergoes the treatment. If the accused is indigent, 120
the court shall order the accused to report to a facility 122
operated by a city health district or a general health district
for treatment. If the accused is convicted of or pleads guilty 124
to the offense with which the accused is charged and is placed on 126
probation, a condition of probation shall be that the offender 127
submit to and faithfully follow a course of medical treatment for 128
the venereal disease. If the offender does not seek the required 129
medical treatment, the court may revoke the offender's probation 131
and order the offender to undergo medical treatment during the
period of the offender's incarceration and to pay the cost of 133
that treatment.
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(B)(1)(a) Notwithstanding the requirements for informed 135
consent in section 3701.242 of the Revised Code, if a person is 136
charged with a violation of DIVISION (B) OF SECTION 2903.11 OR OF 137
section 2907.02, 2907.03, 2907.04, 2907.05, 2907.12, 2907.24, 139
2907.241, or 2907.25 of the Revised Code or with a violation of a 140
municipal ordinance that is substantially equivalent to THAT 141
DIVISION OR any of those sections, the court, upon the request of 143
the prosecutor in the case, upon the request of the victim, or 144
upon the request of any other person whom the court reasonably 146
believes had contact with the accused in circumstances related to 147
the violation that could have resulted in the transmission to 148
that person of a virus that causes acquired immunodeficiency
syndrome, shall cause the accused to submit to one or more tests 150
designated by the director of health under section 3701.241 of 151
the Revised Code to determine if the accused is a carrier of a 152
virus that causes acquired immunodeficiency syndrome. The court, 153
upon the request of the prosecutor in the case, upon the request 154
of the victim with the agreement of the prosecutor, or upon the 155
request of any other person with the agreement of the prosecutor, 156
may cause an accused who is charged with a violation of any other 157
section of the Revised Code or with a violation of any other 158
municipal ordinance to submit to one or more tests so designated 159
by the director of health if the circumstances of the violation 160
indicate probable cause to believe that the accused, if the 161
accused is infected with the virus that causes acquired 162
immunodeficiency syndrome, might have transmitted the virus to 163
any of the following persons in committing the violation: 164
(i) In relation to a request made by the prosecuting 166
attorney, to the victim or to any other person; 167
(ii) In relation to a request made by the victim, to the 169
victim making the request; 170
(iii) In relation to a request made by any other person, 172
to the person making the request. 173
(b) The results of a test performed under division 175
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(B)(1)(a) of this section shall be communicated in confidence to 177
the court, and the court shall inform the accused of the result. 178
The court shall inform the victim that the test was performed and 179
that the victim has a right to receive the results on request. 180
If the test was performed upon the request of a person other than 181
the prosecutor in the case and other than the victim, the court 182
shall inform the person who made the request that the test was 183
performed and that the person has a right to receive the results
upon request. Additionally, regardless of who made the request 184
that was the basis of the test being performed, if the court 185
reasonably believes that, in circumstances related to the 186
violation, a person other than the victim had contact with the 187
accused that could have resulted in the transmission of the virus 188
to that person, the court may inform that person that the test 189
was performed and that the person has a right to receive the 190
results of the test on request. If the accused tests positive 191
for a virus that causes acquired immunodeficiency syndrome, the 192
test results shall be reported to the department of health in 193
accordance with section 3701.24 of the Revised Code and to the 194
sheriff, head of the state correctional institution, or other 195
person in charge of any jail or prison in which the accused is 196
incarcerated. If the accused tests positive for a virus that 198
causes acquired immunodeficiency syndrome and the accused was
charged with, and was convicted of or pleaded guilty to, a 199
violation of section 2907.24, 2907.241, or 2907.25 of the Revised 200
Code or a violation of a municipal ordinance that is 201
substantially equivalent to any of those sections, the test 202
results also shall be reported to the law enforcement agency that 203
arrested the accused, and the law enforcement agency may use the 204
test results as the basis for any future charge of a violation of 205
division (B) of any of those sections or a violation of a 206
municipal ordinance that is substantially equivalent to division 207
(B) of any of those sections. No other disclosure of the test 208
results or the fact that a test was performed shall be made, 209
6
other than as evidence in a grand jury proceeding or as evidence 210
in a judicial proceeding in accordance with the Rules of 211
Evidence. If the test result is negative, and the charge has not 213
been dismissed or if the accused has been convicted of the charge 214
or a different offense arising out of the same circumstances as 215
the offense charged, the court shall order that the test be 216
repeated not earlier than three months nor later than six months 217
after the original test.
(2) If an accused who is free on bond refuses to submit to 220
a test ordered by the court pursuant to division (B)(1) of this 221
section, the court may order that the accused's bond be revoked 222
and that the accused be incarcerated until the test is performed. 223
If an accused who is incarcerated refuses to submit to a test 224
ordered by the court pursuant to division (B)(1) of this section, 225
the court shall order the person in charge of the jail or prison 226
in which the accused is incarcerated to take any action necessary 227
to facilitate the performance of the test, including the forcible 228
restraint of the accused for the purpose of drawing blood to be 229
used in the test.
(3) A state agency, a political subdivision of the state, 232
or an employee of a state agency or of a political subdivision of 233
the state is immune from liability in a civil action to recover 234
damages for injury, death, or loss to person or property 235
allegedly caused by any act or omission in connection with the 236
performance of the duties required under division (B)(2) of this 237
section unless the acts or omissions are with malicious purpose, 238
in bad faith, or in a wanton or reckless manner. 239
Sec. 2907.28. (A) Any cost incurred by a hospital or 248
other emergency medical facility in conducting a medical 249
examination of a victim of an offense under any provision of 250
sections 2907.02 to 2907.06 of the Revised Code for the purpose 251
of gathering physical evidence for a possible prosecution shall 252
be charged to and paid by the appropriate local government as 253
follows: 254
7
(1) Cost incurred by a county facility shall be charged to 256
and paid by the county; 257
(2) Cost incurred by a municipal facility shall be charged 259
to and paid by the municipal corporation; 260
(3) Cost incurred by a private facility shall be charged 262
to and paid by the municipal corporation in which the alleged 263
offense was committed, or charged to and paid by the county, if 264
committed within an unincorporated area. If separate counts of 265
an offense or separate offenses under any provisions of sections 266
2907.02 to 2907.06 of the Revised Code took place in more than 267
one municipal corporation or more than one unincorporated area, 268
or both, the local governments shall share the cost of the 269
examination. 270
(B) Any cost incurred by a hospital or other emergency 272
medical facility in conducting a medical examination and test of 273
any person who is charged with a violation of DIVISION (B) OF 274
SECTION 2903.11 OR OF section 2907.02, 2907.03, 2907.04, 2907.05, 276
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 277
with a violation of a municipal ordinance that is substantially 278
equivalent to THAT DIVISION OR any of those sections, pursuant to 280
division (B) of section 2907.27 of the Revised Code, shall be 281
charged to and paid by the accused who undergoes the examination 282
and test, unless the court determines that the accused is unable 284
to pay, in which case the cost shall be charged to and paid by 286
the municipal corporation in which the offense allegedly was
committed, or charged to and paid by the county if the offense 287
allegedly was committed within an unincorporated area. If 288
separate counts of an alleged offense or alleged separate 289
offenses under section 2907.02, 2907.03, 2907.04, 2907.05, 290
2907.12, 2907.24, 2907.241, or 2907.25 of the Revised Code or 292
under a municipal ordinance that is substantially equivalent to 293
any of those sections took place in more than one municipal 294
corporation or more than one unincorporated area, or both, the 295
local governments shall share the cost of the examination and 296
8
test. If a hospital or other emergency medical facility has 297
submitted charges for the cost of a medical examination and test 298
to an accused and has been unable to collect payment for the 299
charges after making good faith attempts to collect for a period 300
of six months or more, the cost shall be charged to and paid by 301
the appropriate municipal corporation or county as specified in 302
division (B) of this section. 303
Sec. 3701.243. (A) Except as provided in this section or 312
section 3701.248 of the Revised Code, no person or agency of 313
state or local government that acquires the information while 314
providing any health care service or while in the employ of a 315
health care facility or health care provider shall disclose or 316
compel another to disclose any of the following: 317
(1) The identity of any individual on whom an HIV test is 319
performed; 320
(2) The results of an HIV test in a form that identifies 322
the individual tested; 323
(3) The identity of any individual diagnosed as having 325
AIDS or an AIDS-related condition. 326
(B)(1) Except as provided in divisions (B)(2), (C), (D), 328
and (F) of this section, the results of an HIV test or the 329
identity of an individual on whom an HIV test is performed or who 330
is diagnosed as having AIDS or an AIDS-related condition may be 332
disclosed only to the following: 333
(a) The individual who was tested or the individual's 335
legal guardian, and his THE INDIVIDUAL'S spouse or any sexual 336
partner; 337
(b) A person to whom disclosure is authorized by a written 339
release, executed by the individual tested or by his THE 340
INDIVIDUAL'S legal guardian and specifying to whom disclosure of 341
the test results or diagnosis is authorized and the time period 343
during which the release is to be effective; 344
(c) The individual's physician; 346
(d) The department of health or a health commissioner to 348
9
which reports are made under section 3701.24 of the Revised Code; 349
(e) A health care facility or provider that procures, 351
processes, distributes, or uses a human body part from a deceased 352
individual, donated for a purpose specified in Chapter 2108. of 353
the Revised Code, and that needs medical information about the 354
deceased individual to ensure that the body part is medically 355
acceptable for its intended purpose; 356
(f) Health care facility staff committees or accreditation 358
or oversight review organizations conducting program monitoring, 359
program evaluation, or service reviews; 360
(g) A health care provider, emergency medical services 362
worker, or peace officer who sustained a significant exposure to 363
the body fluids of another individual, if that individual was 364
tested pursuant to division (E)(6) of section 3701.242 of the 365
Revised Code, except that the identity of the individual tested 366
shall not be revealed; 367
(h) To law enforcement authorities pursuant to a search 369
warrant or a subpoena issued by or at the request of a grand 370
jury, a prosecuting attorney, A city director of law or similar 371
chief legal officer of a municipal corporation, or A village 372
solicitor, in connection with a criminal investigation or 373
prosecution. 374
(2) The results of an HIV test or a diagnosis of AIDS or 376
an AIDS-related condition may be disclosed to a health care 377
provider, or an authorized agent or employee of a health care 378
facility or a health care provider, if the provider, agent, or 379
employee has a medical need to know the information and is 380
participating in the diagnosis, care, or treatment of the 381
individual on whom the test was performed or who has been 382
diagnosed as having AIDS or an AIDS-related condition. 383
This division does not impose a standard of disclosure 385
different from the standard for disclosure of all other specific 386
information about a patient to health care providers and 387
facilities. Disclosure may not be requested or made solely for 388
10
the purpose of identifying an individual who has a positive HIV 389
test result or has been diagnosed as having AIDS or an 391
AIDS-related condition in order to refuse to treat the
individual. Referral of an individual to another health care 392
provider or facility based on reasonable professional judgment 393
does not constitute refusal to treat the individual. 394
(3) Not later than ninety days after November 1, 1989, 396
each health care facility in this state shall establish a 397
protocol to be followed by employees and individuals affiliated 398
with the facility in making disclosures authorized by division 399
(B)(2) of this section. A person employed by or affiliated with 400
a health care facility who determines in accordance with the 401
protocol established by the facility that a disclosure is 402
authorized by division (B)(2) of this section is immune from 403
liability to any person in a civil action for damages for injury, 404
death, or loss to person or property resulting from the 405
disclosure. 406
(C)(1) Any person or government agency may seek access to 408
or authority to disclose the HIV test records of an individual in 409
accordance with the following provisions: 410
(a) The person or government agency shall bring an action 412
in a court of common pleas requesting disclosure of or authority 413
to disclose the results of an HIV test of a specific individual, 414
who shall be identified in the complaint by a pseudonym but whose 415
name shall be communicated to the court confidentially, pursuant 416
to a court order restricting the use of the name. The court 417
shall provide the individual with notice and an opportunity to 418
participate in the proceedings if he THE INDIVIDUAL is not named 420
as a party. Proceedings shall be conducted in chambers unless the 421
individual agrees to a hearing in open court. 422
(b) The court may issue an order granting the plaintiff 424
access to or authority to disclose the test results only if the 425
court finds by clear and convincing evidence that the plaintiff 426
has demonstrated a compelling need for disclosure of the 427
11
information that cannot be accommodated by other means. In 428
assessing compelling need, the court shall weigh the need for 429
disclosure against the privacy right of the individual tested and 430
against any disservice to the public interest that might result 431
from the disclosure, such as discrimination against the 432
individual or the deterrence of others from being tested. 433
(c) If the court issues an order, it shall guard against 435
unauthorized disclosure by specifying the persons who may have 436
access to the information, the purposes for which the information 437
shall be used, and prohibitions against future disclosure. 438
(2) A person or government agency that considers it 440
necessary to disclose the results of an HIV test of a specific 441
individual in an action in which it is a party may seek authority 442
for the disclosure by filing an in camera motion with the court 443
in which the action is being heard. In hearing the motion, the 444
court shall employ procedures for confidentiality similar to 445
those specified in division (C)(1) of this section. The court 446
shall grant the motion only if it finds by clear and convincing 447
evidence that a compelling need for the disclosure has been 448
demonstrated. 449
(3) Except for an order issued in a criminal prosecution 451
or an order under division (C)(1) or (2) of this section granting 452
disclosure of the result of an HIV test of a specific individual, 453
a court shall not compel a blood bank, hospital blood center, or 454
blood collection facility to disclose the result of HIV tests 455
performed on the blood of voluntary donors in a way that reveals 456
the identity of any donor. 457
(4) In a civil action in which the plaintiff seeks to 459
recover damages from an individual defendant based on an 460
allegation that the plaintiff contracted the HIV virus as a 461
result of actions of the defendant, the prohibitions against 462
disclosure in this section do not bar discovery of the results of 463
any HIV test given to the defendant or any diagnosis that the 464
defendant suffers from AIDS or an AIDS-related condition. 465
12
(D) The results of an HIV test or the identity of an 467
individual on whom an HIV test is performed or who is diagnosed 468
as having AIDS or an AIDS-related condition may be disclosed to a 470
federal, state, or local government agency, or the official
representative of such an agency, for purposes of the medical 471
assistance program established under section 5111.01 of the 472
Revised Code, the medicare program established under Title XVIII 473
of the "Social Security Act," 49 Stat. 620 (1935) 42 U.S.C.A. 474
301, as amended, or any other public assistance program. 475
(E) Any disclosure pursuant to this section shall be in 477
writing and accompanied by a written statement that includes the 478
following or substantially similar language: "This information 479
has been disclosed to you from confidential records protected 480
from disclosure by state law. You shall make no further 481
disclosure of this information without the specific, written, and 482
informed release of the individual to whom it pertains, or as 483
otherwise permitted by state law. A general authorization for 484
the release of medical or other information is not sufficient for 485
the purpose of the release of HIV test results or diagnoses." 486
(F) An individual who knows that he THE INDIVIDUAL has 488
received a positive result on an HIV test or has been diagnosed 489
as having AIDS or an AIDS-related condition, shall disclose this 492
information to any other person with whom he THE INDIVIDUAL 493
intends to make common use of a hypodermic needle or engage in 495
sexual conduct as defined in section 2907.01 of the Revised Code. 496
AN INDIVIDUAL'S COMPLIANCE WITH THIS DIVISION DOES NOT PROHIBIT A 497
PROSECUTION OF THE INDIVIDUAL FOR A VIOLATION OF DIVISION (B) OF 498
SECTION 2903.11 OF THE REVISED CODE. 499
(G) Nothing in this section prohibits the introduction of 501
evidence concerning and AN HIV test of a specific individual in a 503
criminal proceeding. 504
Section 2. That existing sections 2903.11, 2907.27, 506
2907.28, and 3701.243 of the Revised Code are hereby repealed. 507
Section 3. Section 2907.28 of the Revised Code is 509
13
presented in this act as a composite of the section as amended by 510
both Sub. H.B. 40 and Am. Sub. H.B. 445 of the 121st General 511
Assembly, with the new language of neither of the acts shown in 513
capital letters. This is in recognition of the principle stated 514
in division (B) of section 1.52 of the Revised Code that such 515
amendments are to be harmonized where not substantively 516
irreconcilable and constitutes a legislative finding that such is 517
the resulting version in effect prior to the effective date of 518
this act.