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COMMITTEE AMENDMENT ADOPTED
April 22, 1999
S. 126
S. Printed 4/22/99--S.
Read the first time January 12, 1999.
TO AMEND SECTION 16-3-740, CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO PROVIDE THAT WITHIN FIFTEEN DAYS OF THE RETURN OF A TRUE BILL OF AN INDICTMENT BY A GRAND JURY FOR A CRIME WHEREIN THE VICTIM WAS EXPOSED TO BLOOD OR VAGINAL OR SEMINAL OR OTHER BODY FLUIDS OR SECRETIONS OF THE ALLEGED OFFENDER OR THE ALLEGED JUVENILE OFFENDER THE SOLICITOR SHALL MAKE A MOTION AND THE COURT SHALL ORDER THAT THE ALLEGED OFFENDER OR THE ALLEGED JUVENILE OFFENDER SHALL BE TESTED FOR HEPATITIS B AND ALL SEXUALLY TRANSMITTED DISEASES INCLUDING HUMAN IMMUNODEFICIENCY VIRUS (HIV), THE VIRUS THAT CAUSES ACQUIRED IMMUNODEFICIENCY SYNDROME (AIDS), AND TO PROVIDE THAT THE RESULTS OF SUCH TESTING BE REVEALED ONLY TO THE VICTIM, THE VICTIM'S PARENT(S) OR LEGAL GUARDIAN(S) OR REPRESENTATIVE OR ATTORNEY UNTIL THE ALLEGED OFFENDER OR ALLEGED JUVENILE OFFENDER IS CONVICTED OR ADJUDICATED.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-3-740 of the 1976 Code is amended to read:
"Section 16-3-740. (A) Within fifteen days of the conviction of a person or adjudication of a juvenile under state law for a crime involving sexual battery as defined in Section 16-3-651 or sexual conduct as defined in Section 16-3-800, the solicitor shall make a motion, and the court shall order that the convicted offender or adjudicated juvenile offender be tested for Hepatitis B and all sexually transmitted diseases, including Human Immunodeficiency Virus (HIV), the virus that causes Acquired Immunodeficiency Syndrome (AIDS).
(B) Within fifteen days of the conviction of any person or adjudication of a juvenile under state law for a criminal offense, other than those offenses provided for in Section 16-15-255, where the victim has been exposed to blood or vaginal, seminal, or other body fluids of the convicted offender, upon motion of the solicitor or upon the court's own motion, the court may order that the convicted offender be tested for Hepatitis B and all sexually transmitted diseases, including Human Immunodeficiency Virus (HIV), the virus that causes Acquired Immunodeficiency Syndrome (AIDS). (A) For purposes of this section :
(1) 'Body fluid' means blood, amniotic fluid, pericardial fluid, pleural fluid, synovial fluid, cerebrospinal fluid, semen or vaginal secretions, or any body fluid visibly contaminated with blood.
(2) 'HIV' means the human immunodeficiency virus.
(3) 'Offender' includes a person under seventeen years of age.
(B) Upon the request of a victim who has been exposed to body fluids during the commission of a criminal offense, or upon the request of the legal guardian of a victim who has been exposed to body fluids during the commission of a criminal offense, the solicitor must, at any time after the offender is charged, or at any time after a petition has been filed against an offender in family court, petition the court to have the offender tested for Hepatitis B and HIV. An offender must not be tested under this section for Hepatitis B and HIV without a court order. To obtain a court order, the solicitor must demonstrate the following:
(1) the victim or the victim's legal guardian requested the tests;
(2) there is probable cause that the offender committed the offense;
(3 ) there is probable cause that during the commission of the offense there was a risk that body fluids were transmitted from one person to another; and
(4) the offender has received notice of the petition and notice of his right to have counsel represent him at a hearing.
The results of the tests must be kept confidential and disclosed only to the solicitor who obtained the court order. The solicitor shall then notify only those persons designated in subsection (C).
(C) The tests must be administered by the local public health authority Department of Health and Environmental Control through the local county health department or the medical professional at the prison or juvenile detention center state or local detention facility where the convicted offender or adjudicated juvenile offender is imprisoned or detained. The If the tests are performed prior to conviction or adjudication, the results of the tests must be reported only to the South Carolina Department of Health and Environmental Control and to the solicitor who ordered the tests obtained the court order. The solicitor shall notify the following persons of the tests results:
(1) the victim or the parent or legal guardian of a victim who is a minor or is mentally retarded or mentally incapacitated;
(2) the victim's attorney;
(3) and the convicted sexual offender or adjudicated juvenile offender and the a juvenile offender's parent or guardian of the tests results ; and
(4) the offender's attorney.
The results of the tests shall be provided to the designated recipients with the following disclaimer: 'The tests were conducted in a medically approved manner, but tests cannot determine infection by Hepatitis B or HIV with absolute accuracy. Additionally, the testing does not determine exposure to or infection by other sexually transmitted diseases. Persons receiving the tests results should continue to monitor their own health, seek retesting in approximately six months, and should consult a physician as appropriate'.
The solicitor also shall provide to the Department of Corrections, or Department of Juvenile Justice state or local correctional facility where the offender is imprisoned or detained and the Department of Health and Environmental Control the test results for HIV and Hepatitis B, and other sexually transmitted diseases which indicate that the offender or adjudicated juvenile offender is infected with the disease and the results of a Human Immunodeficiency Virus test which indicate that the convicted offender or adjudicated juvenile offender is infected with the Human Immunodeficiency Virus. The Department of Corrections or Department of Juvenile Justice state or local correctional facility where the offender is imprisoned or detained shall use this information solely for the purpose of providing medical treatment to the convicted offender or adjudicated juvenile offender while the offender is imprisoned or detained incarcerated in a state penitentiary or correctional institution, county jail, or juvenile detention center. The State convicted offender or adjudicated juvenile offender shall pay for the tests. If the offender is subsequently convicted or adjudicated delinquent, the offender or the parents of an adjudicated offender must reimburse the State for the costs of the tests unless the offender or the parents of the adjudicated offender are determined to be indigent unless the offender is indigent, in which case the cost of the tests must be paid by the State.
If the tests given pursuant to this section indicate exposure to a sexually transmitted disease, infection by Hepatitis B, or if the Human Immunodeficiency Virus test indicates exposure to Acquired Immunodeficiency Syndrome (AIDS) or to the Human Immunodeficiency Virus HIV, the Department of Health and Environmental Control shall be provided with all tests results and must provide counseling to the victim and the convicted offender or adjudicated juvenile offender regarding the disease, syndrome, or virus. The Department of Health and Environmental Control must also provide testing and counseling for the victim at the victim's request, and referral for appropriate health care and support services.
(D) At the request of the victim or the victim's legal guardian, the court may order a follow-up HIV test and counseling for the offender if the initial HIV test was negative. The follow-up test and counseling shall be performed on dates that occur six weeks, three months, and six months following the initial test. An order for a follow-up test shall be terminated if the offender obtains an acquittal on, or dismissal of, all charges for which testing was ordered.
(E) If, for any reason, the testing requested under subsection (B) has not been undertaken, upon request of the victim or the victim's legal guardian, the court shall order the offender to undergo testing for Hepatitis B and HIV following conviction or delinquency adjudication. The testing shall be administered by the Department of Health and Environmental Control through the local county health department or the medical professional at the state or local detention facility where the offender is imprisoned or detained. The results shall be disclosed in accordance with the provisions of subsection (C).
(F) Upon a showing of probable cause that the offender committed a crime, the collection of additional samples, including blood, saliva, head or pubic hair, may be contemporaneously ordered by the court so that the State may conduct scientific testing, including DNA analysis. The results of the scientific testing, including DNA analysis, may be used for evidentiary purposes in any court proceeding.
(G) Any person or entity who administers tests ordered pursuant to this section and who does so in accordance with this section and accepted medical standards for the administration of these tests shall be immune from civil and criminal liability arising from his conduct.
(H) Any person who discloses information in accordance with the provisions of this section or who participates in any judicial proceeding resulting from the disclosure and who does so in good faith and without malice shall have immunity from civil or criminal liability that might otherwise by incurred or imposed in an action resulting from the disclosure.
(I) Results of tests performed pursuant to this section shall not be used as evidence in any criminal trial of the offender except as provided for in subsection (F)."
SECTION 2. If any provision of this act or the application thereof to any person is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application and to this end the provisions of this act are severable."
SECTION 3. Section 16-15-255 is repealed.
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