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As Reported by House Criminal Justice Committee
123rd General Assembly
Regular Session
1999-2000 | Am. H. B. No. 100 |
REPRESENTATIVES YOUNG-ALLEN-BARRETT-BRADING-BRITTON-BUCHY-
CALLENDER-CATES-CORBIN-CORE-DAMSCHRODER-DePIERO-EVANS-
FLANNERY-FORD-GARDNER-GRENDELL-HARTNETT-HOOPS-HOUSEHOLDER-
JACOBSON-JERSE-JOLIVETTE-JONES-JORDAN-KREBS-R.MILLER-MOTTLEY-
MYERS-NETZLEY-O'BRIEN-OGG-OLMAN-PADGETT-PATTON-ROMAN-SCHUCK-
SULZER-TAYLOR-TERWILLEGER-THOMAS-VAN VYVEN-VESPER-WILLAMOWSKI-
WILLIAMS-BUEHRER-GOODMAN
A BILL
To amend sections 2903.11, 2907.27, 2907.28, and 3701.243 of the Revised Code
to include within the offense of felonious assault a prohibition
against any
person, who knows that the person tested positive
for HIV, engaging in sexual
conduct with a minor or
an unsuspecting adult
partner and to require that a person arrested for violating that prohibition
be tested for HIV under certain circumstances.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2903.11, 2907.27, 2907.28, and 3701.243 of
the Revised Code be amended to read as follows:
Sec. 2903.11. (A) No person shall knowingly DO EITHER OF THE
FOLLOWING:
(1) Cause serious physical harm to another or to another's unborn;
(2) Cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordnance, as defined in
section 2923.11 of the Revised Code.
(B) NO PERSON, WITH KNOWLEDGE THAT THE PERSON HAS TESTED POSITIVE AS A
CARRIER OF A VIRUS THAT CAUSES ACQUIRED IMMUNODEFICIENCY SYNDROME, SHALL
KNOWINGLY DO ANY OF THE FOLLOWING:
(1) ENGAGE IN SEXUAL CONDUCT WITH ANOTHER PERSON WITHOUT DISCLOSING THAT
KNOWLEDGE TO THE OTHER PERSON PRIOR TO ENGAGING IN THE SEXUAL CONDUCT;
(2) ENGAGE IN SEXUAL CONDUCT WITH A PERSON WHOM THE OFFENDER KNOWS OR HAS
REASONABLE CAUSE TO BELIEVE LACKS
THE MENTAL CAPACITY TO APPRECIATE THE SIGNIFICANCE OF THE KNOWLEDGE THAT THE
OFFENDER HAS TESTED POSITIVE AS A CARRIER OF A VIRUS THAT CAUSES ACQUIRED
IMMUNODEFICIENCY SYNDROME;
(3) ENGAGE IN SEXUAL CONDUCT WITH A PERSON UNDER EIGHTEEN YEARS OF AGE WHO
IS NOT THE SPOUSE OF THE OFFENDER.
(C) THE PROSECUTION OF A PERSON UNDER THIS SECTION DOES NOT
PRECLUDE PROSECUTION OF THAT PERSON UNDER
SECTION 2907.02 of the Revised Code.
(D) Whoever violates this section is guilty of felonious assault,
a felony of
the second degree. If the victim of the offense A VIOLATION OF
DIVISION (A) OF THIS SECTION is a peace officer, as
defined in section 2935.01 of the Revised Code, felonious assault is a
felony
of the first degree.
(E) AS USED IN THIS SECTION:
(1) "DEADLY WEAPON" AND "DANGEROUS ORDNANCE" HAVE THE SAME MEANINGS AS IN
SECTION 2923.11 of the Revised Code.
(2) "PEACE OFFICER" HAS THE SAME MEANING AS IN SECTION 2935.01 of the Revised Code.
(3) "SEXUAL CONDUCT" HAS THE SAME MEANING AS IN SECTION 2907.01 of the Revised Code.
Sec. 2907.27. (A)(1) If a person is charged with a
violation of section 2907.02, 2907.03, 2907.04, 2907.24, 2907.241, or
2907.25 of the Revised Code or with a violation of a municipal ordinance
that is substantially equivalent to any of those sections, the arresting
authorities or a court, upon the request of the prosecutor in the case or upon
the request of the victim, shall cause the accused to submit to one or
more appropriate tests to determine if
the accused is suffering from a venereal disease.
(2) If the accused is found to be suffering from a
venereal disease in an infectious stage, the accused shall be
required to
submit to medical treatment for that disease. The cost of the medical
treatment shall be charged to and paid by the accused who undergoes the
treatment. If the accused is indigent, the court shall order the accused to
report to
a facility operated by a city health district or a general health district for
treatment. If the accused is
convicted of or pleads guilty to the offense with which the accused
is
charged and is placed on probation, a condition of probation
shall be that the offender submit to and faithfully follow a
course of medical treatment for the venereal disease. If the offender
does not seek the required medical treatment, the court may revoke the
offender's
probation and order the offender to undergo medical treatment during the
period of the offender's
incarceration and to pay the cost of that treatment.
(B)(1)(a) Notwithstanding the requirements for informed consent
in section 3701.242 of the Revised Code, if a person is charged
with a violation of DIVISION (B) OF SECTION 2903.11 OR OF
section 2907.02, 2907.03, 2907.04,
2907.05, 2907.12, 2907.24, 2907.241, or 2907.25 of the
Revised Code or with a violation of a municipal ordinance that is
substantially equivalent to THAT DIVISION OR any of those sections, the
court, upon the request
of the
prosecutor in the case, upon the request of the victim, or upon the request of
any other
person whom the court reasonably believes had contact with the accused in
circumstances related to the violation that could have resulted in the
transmission to that person of a virus that causes acquired immunodeficiency
syndrome, shall cause the accused to submit to
one or more tests designated by the director of health under section
3701.241 of the Revised Code to determine if the accused is a
carrier of a virus that causes acquired immunodeficiency
syndrome. The court, upon the request of the prosecutor in the case,
upon the request of the
victim with the agreement of the prosecutor, or upon the request of any other
person with the agreement of the prosecutor, may cause an accused who is
charged with a violation of any other section of the Revised
Code or with a violation of any other municipal ordinance to submit
to one or more tests so designated by the director of health if the
circumstances of the violation indicate
probable cause to believe that the accused, if the accused is infected with
the virus that causes acquired immunodeficiency syndrome, might have
transmitted the virus to any of the following persons in committing the
violation:
(i) In relation to a request made by the prosecuting attorney, to
the victim or to any other person;
(ii) In relation to a request made by the victim, to the victim
making the request;
(iii) In relation to a request made by any other person, to the
person making the request.
(b) The results of a test performed under division
(B)(1)(a) of this section shall be communicated in
confidence to the court, and the court shall inform the accused
of the result. The court shall inform the victim that the test
was performed and that the victim has a right to receive the
results on request. If the test was performed upon the
request of a person other than the prosecutor in the case and other than the
victim, the court shall inform the person who made the request that the test
was performed and that the person has a right to receive the results upon
request. Additionally, regardless of who made the request that was the basis
of the test being performed, if the court reasonably believes that, in
circumstances related to the violation, a person other than the
victim had contact with the accused that could have resulted in
the transmission of the virus to that person, the court may
inform that person that the test was performed and that the
person has a right to receive the results of the test on
request. If the accused tests positive for a virus
that causes acquired immunodeficiency syndrome, the test results
shall be reported to the department of health in accordance with
section 3701.24 of the Revised Code and to the sheriff, head of
the state correctional institution, or other person in
charge of any jail or prison in which the accused is
incarcerated. If the accused tests positive for
a virus that causes acquired immunodeficiency syndrome and the accused was
charged with, and was convicted of or pleaded guilty to, a violation of
section 2907.24, 2907.241, or 2907.25 of the Revised Code or
a violation of a municipal ordinance that is substantially equivalent to any
of those sections, the test results also shall be reported to the law
enforcement agency that arrested the accused, and the law enforcement agency
may use the test results as the basis for any
future charge of a violation of division (B) of any of those sections
or a violation of a municipal ordinance that is substantially equivalent to
division (B) of any of those sections. No other
disclosure of the test results or the
fact that a test was performed shall be made, other than as evidence
in a grand jury proceeding or as evidence in a judicial proceeding in
accordance with the Rules of Evidence. If the test
result
is negative, and the charge has not been dismissed or if the
accused has been convicted of the charge or a different offense
arising out of the same circumstances as the offense charged, the
court shall order that the test be repeated not earlier than
three months nor later than six months after the original test.
(2) If an accused who is free on bond refuses
to submit to a test ordered by the court pursuant to division
(B)(1) of this section, the court may order that the
accused's bond be revoked and that the accused be incarcerated
until the test is performed. If an accused who is incarcerated
refuses to submit to a test ordered by the court pursuant to
division (B)(1) of this section, the court shall order
the person in charge of the jail or prison in which the accused
is incarcerated to take any action necessary to facilitate the
performance of the test, including the forcible restraint of the
accused for the purpose of drawing blood to be used in the test.
(3) A state agency, a political subdivision of the
state, or an employee of a state agency or of a political
subdivision of the state is immune from liability in a civil
action to recover damages for injury, death, or loss to person or
property allegedly caused by any act or omission in connection
with the performance of the duties required under division
(B)(2) of this section unless the acts or omissions are
with malicious purpose, in bad faith, or in a wanton or reckless
manner.
Sec. 2907.28. (A) Any cost incurred by a hospital or
other emergency medical facility in conducting a medical
examination of a victim of an offense under any provision of sections 2907.02
to 2907.06 of the Revised Code for the purpose of
gathering physical evidence for a possible prosecution shall be
charged to and paid by the appropriate local government as
follows:
(1) Cost incurred by a county facility shall be charged to
and paid by the county;
(2) Cost incurred by a municipal facility shall be charged
to and paid by the municipal corporation;
(3) Cost incurred by a private facility shall be charged
to and paid by the municipal corporation in which the alleged
offense was committed, or charged to and paid by the county, if
committed within an unincorporated area. If separate counts of
an offense or separate offenses under any provisions of sections 2907.02 to
2907.06 of the Revised Code took place in more than
one municipal corporation or more than one unincorporated area,
or both, the local governments shall share the cost of the
examination.
(B) Any cost incurred by a hospital or other emergency
medical facility in conducting a medical examination and test of
any person who is charged with a violation of DIVISION (B) OF
SECTION 2903.11 OR OF section 2907.02,
2907.03, 2907.04, 2907.05, 2907.12, 2907.24,
2907.241, or 2907.25 of the Revised Code or with a violation
of a municipal ordinance that is substantially equivalent to THAT DIVISION
OR any of those
sections, pursuant to division (B)
of section 2907.27 of the Revised Code, shall be charged to and
paid by the accused who undergoes the examination and test, unless the court
determines that the accused
is unable to pay, in which case the cost shall be charged to and
paid
by the municipal corporation in which the offense allegedly was
committed, or charged to and paid by the county if the offense
allegedly was committed within an unincorporated area. If separate counts of
an alleged offense or alleged separate offenses under section
2907.02, 2907.03, 2907.04, 2907.05, 2907.12,
2907.24, 2907.241, or
2907.25 of the Revised Code or under a municipal ordinance that is
substantially equivalent to any of those sections took place in
more than one municipal corporation or more than one
unincorporated area, or both, the local governments shall share
the cost of the examination and test. If a
hospital or other emergency medical facility has submitted
charges for the cost of a medical examination and test to an
accused and has been unable to collect payment for the charges
after making good faith attempts to collect for a period of six
months or more, the cost shall be charged to and paid by the
appropriate municipal corporation or county as specified in
division (B) of this section.
Sec. 3701.243. (A) Except as provided in this section or
section 3701.248 of the Revised Code, no person or agency of
state or local government that acquires the information while
providing any health care service or while in the employ of a
health care facility or health care provider shall disclose or
compel another to disclose any of the following:
(1) The identity of any individual on whom an HIV test is
performed;
(2) The results of an HIV test in a form that identifies
the individual tested;
(3) The identity of any individual diagnosed as having
AIDS or an AIDS-related condition.
(B)(1) Except as provided in divisions (B)(2), (C), (D),
and (F) of this section, the results of an HIV test or the
identity of an individual on whom an HIV test is performed or who
is diagnosed as having AIDS or an AIDS-related condition may
be
disclosed only to the following:
(a) The individual who was tested or the individual's
legal guardian, and his THE INDIVIDUAL'S spouse or any sexual
partner;
(b) A person to whom disclosure is authorized by a written
release, executed by the individual tested or by his THE
INDIVIDUAL'S legal guardian and specifying to whom disclosure of the test
results or
diagnosis is authorized and the time period during which the
release is to be effective;
(c) The individual's physician;
(d) The department of health or a health commissioner to
which reports are made under section 3701.24 of the Revised Code;
(e) A health care facility or provider that procures,
processes, distributes, or uses a human body part from a deceased
individual, donated for a purpose specified in Chapter 2108. of
the Revised Code, and that needs medical information about the
deceased individual to ensure that the body part is medically
acceptable for its intended purpose;
(f) Health care facility staff committees or accreditation
or oversight review organizations conducting program monitoring,
program evaluation, or service reviews;
(g) A health care provider, emergency medical services
worker, or peace officer who sustained a significant exposure to
the body fluids of another individual, if that individual was
tested pursuant to division (E)(6) of section 3701.242 of the
Revised Code, except that the identity of the individual tested
shall not be revealed;
(h) To law enforcement authorities pursuant to a search
warrant or a subpoena issued by or at the request of a grand
jury, a prosecuting attorney, A city director of law or similar
chief legal officer of a municipal corporation, or A village
solicitor, in connection with a criminal investigation or
prosecution.
(2) The results of an HIV test or a diagnosis of AIDS or
an AIDS-related condition may be disclosed to a health care
provider, or an authorized agent or employee of a health care
facility or a health care provider, if the provider, agent, or
employee has a medical need to know the information and is
participating in the diagnosis, care, or treatment of the
individual on whom the test was performed or who has been
diagnosed as having AIDS or an AIDS-related condition.
This division does not impose a standard of disclosure
different from the standard for disclosure of all other specific
information about a patient to health care providers and
facilities. Disclosure may not be requested or made solely for
the purpose of identifying an individual who has a positive HIV
test result or has been diagnosed as having AIDS or an
AIDS-related condition in order to refuse to treat the individual.
Referral of an individual to another health care provider or
facility based on reasonable professional judgment does not
constitute refusal to treat the individual.
(3) Not later than ninety days after November 1, 1989,
each health care facility in this state shall establish a
protocol to be followed by employees and individuals affiliated
with the facility in making disclosures authorized by division
(B)(2) of this section. A person employed by or affiliated with
a health care facility who determines in accordance with the
protocol established by the facility that a disclosure is
authorized by division (B)(2) of this section is immune from
liability to any person in a civil action for damages for injury,
death, or loss to person or property resulting from the
disclosure.
(C)(1) Any person or government agency may seek access to
or authority to disclose the HIV test records of an individual in
accordance with the following provisions:
(a) The person or government agency shall bring an action
in a court of common pleas requesting disclosure of or authority
to disclose the results of an HIV test of a specific individual,
who shall be identified in the complaint by a pseudonym but whose
name shall be communicated to the court confidentially, pursuant
to a court order restricting the use of the name. The court
shall provide the individual with notice and an opportunity to
participate in the proceedings if he THE INDIVIDUAL is not
named as a party.
Proceedings shall be conducted in chambers unless the individual
agrees to a hearing in open court.
(b) The court may issue an order granting the plaintiff
access to or authority to disclose the test results only if the
court finds by clear and convincing evidence that the plaintiff
has demonstrated a compelling need for disclosure of the
information that cannot be accommodated by other means. In
assessing compelling need, the court shall weigh the need for
disclosure against the privacy right of the individual tested and
against any disservice to the public interest that might result
from the disclosure, such as discrimination against the
individual or the deterrence of others from being tested.
(c) If the court issues an order, it shall guard against
unauthorized disclosure by specifying the persons who may have
access to the information, the purposes for which the information
shall be used, and prohibitions against future disclosure.
(2) A person or government agency that considers it
necessary to disclose the results of an HIV test of a specific
individual in an action in which it is a party may seek authority
for the disclosure by filing an in camera motion with the court
in which the action is being heard. In hearing the motion, the
court shall employ procedures for confidentiality similar to
those specified in division (C)(1) of this section. The court
shall grant the motion only if it finds by clear and convincing
evidence that a compelling need for the disclosure has been
demonstrated.
(3) Except for an order issued in a criminal prosecution
or an order under division (C)(1) or (2) of this section granting
disclosure of the result of an HIV test of a specific individual,
a court shall not compel a blood bank, hospital blood center, or
blood collection facility to disclose the result of HIV tests
performed on the blood of voluntary donors in a way that reveals
the identity of any donor.
(4) In a civil action in which the plaintiff seeks to
recover damages from an individual defendant based on an
allegation that the plaintiff contracted the HIV virus as a
result of actions of the defendant, the prohibitions against
disclosure in this section do not bar discovery of the results of
any HIV test given to the defendant or any diagnosis that the
defendant suffers from AIDS or an AIDS-related condition.
(D) The results of an HIV test or the identity of an
individual on whom an HIV test is performed or who is diagnosed
as having AIDS or an AIDS-related condition may be disclosed
to a federal, state, or local government agency, or the official
representative of such an agency, for purposes of the medical
assistance program established under section 5111.01 of the
Revised Code, the medicare program established under Title XVIII
of the "Social Security Act," 49 Stat. 620 (1935) 42 U.S.C.A.
301, as amended, or any other public assistance program.
(E) Any disclosure pursuant to this section shall be in
writing and accompanied by a written statement that includes the
following or substantially similar language: "This information
has been disclosed to you from confidential records protected
from disclosure by state law. You shall make no further
disclosure of this information without the specific, written, and
informed release of the individual to whom it pertains, or as
otherwise permitted by state law. A general authorization for
the release of medical or other information is not sufficient for
the purpose of the release of HIV test results or diagnoses."
(F) An individual who knows that he THE INDIVIDUAL has
received a positive result on an HIV test or has been diagnosed as
having
AIDS or an AIDS-related condition, shall disclose
this
information to any other person with whom he THE INDIVIDUAL
intends to make common use of a
hypodermic needle or engage in sexual conduct as defined in
section 2907.01 of the Revised Code. AN
INDIVIDUAL'S COMPLIANCE WITH THIS DIVISION DOES NOT PROHIBIT A
PROSECUTION OF THE INDIVIDUAL FOR A VIOLATION OF DIVISION (B) OF
SECTION 2903.11 of the Revised Code.
(G) Nothing in this section prohibits the introduction of
evidence concerning and AN HIV test of a specific individual
in a
criminal proceeding.
Section 2. That existing sections 2903.11, 2907.27, 2907.28, and 3701.243 of
the Revised Code are hereby repealed.
Section 3. Section 2907.28 of the Revised Code is presented in this act
as a composite of the section as amended by both
Sub. H.B. 40 and Am. Sub. H.B. 445 of the 121st General Assembly, with the new
language of
neither of the acts shown in capital letters. This is in
recognition of the principle stated in division (B) of section
1.52 of the Revised Code that such amendments are to be
harmonized where not substantively irreconcilable and constitutes
a legislative finding that such is the resulting version in
effect prior to the effective date of this act.
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