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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
AMENDED
April 30, 2009
H. 3677
S. Printed 4/30/09--H.
Read the first time March 9, 2009.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ENACTING THE "VIOLENCE AGAINST WOMEN FEDERAL COMPLIANCE ACT" TO CONFORM STATE LAW TO FEDERAL REQUIREMENTS BY AMENDING SECTION 16-3-740 RELATING TO TESTING CERTAIN CRIMINALS FOR HEPATITIS B AND THE HUMAN IMMUNODEFICIENCY VIRUS AT THE REQUEST OF A VICTIM, SO AS TO REVISE THE DEFINITION OF "OFFENDER" TO INCLUDE ADULTS AND JUVENILES, TO CLARIFY PROCEDURES FOR DISCLOSING TEST RESULTS, TO PROVIDE THAT THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL SHALL ADVISE THE VICTIM OF AVAILABLE TREATMENT OPTIONS, AND UPON REQUEST OF THE VICTIM PROVIDE TESTING AND POST-TESTING COUNSELING; BY ADDING SECTION 16-3-750 SO AS TO PROHIBIT LAW ENFORCEMENT AND PROSECUTING OFFICERS FROM ASKING OR REQUIRING A VICTIM OF AN ALLEGED CRIMINAL SEXUAL CONDUCT OFFENSE TO SUBMIT TO A POLYGRAPH EXAMINATION AND TO PROVIDE THAT REFUSAL OF A VICTIM TO SUBMIT TO SUCH AN EXAMINATION DOES NOT PREVENT THE INVESTIGATION, CHARGING, OR PROSECUTION OF THE OFFENSE; TO AMEND SECTION 16-3-1350 RELATING TO MEDICOLEGAL EXAMINATIONS FOR VICTIMS OF CRIMINAL SEXUAL CONDUCT OR CHILD SEX ABUSE, SO AS TO DELETE THE PROVISION REQUIRING SUCH A VICTIM TO FILE AN INCIDENT REPORT WITH A LAW ENFORCEMENT AGENCY IN ORDER TO RECEIVE A MEDICOLEGAL EXAMINATION WITHOUT CHARGE; TO AMEND SECTION 16-3-177, AS AMENDED, RELATING TO THE FORM AND CONTENT OF A RESTRAINING ORDER, SO AS TO PROVIDE CIRCUMSTANCES UNDER WHICH A PERSON SUBJECT TO A RESTRAINING ORDER MAY NOT SHIP, TRANSPORT, OR POSSESS A FIREARM; BY ADDING SECTION 16-25-30 SO AS TO PROVIDE THAT A PERSON CONVICTED OF CRIMINAL DOMESTIC VIOLENCE OR CRIMINAL DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE MUST BE NOTIFIED IN WRITING THAT IT IS UNLAWFUL FOR SUCH A DEFENDANT TO SHIP, TRANSPORT, OR POSSESS A FIREARM; AND TO AMEND SECTION 20-4-60, AS AMENDED, RELATING TO THE FORM AND CONTENT OF AN ORDER OF PROTECTION FROM DOMESTIC VIOLENCE, SO AS TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON SUBJECT TO AN ORDER OF PROTECTION TO SHIP, TRANSPORT, OR POSSESS A FIREARM.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Violence Against Women Federal Compliance Act" and is intended to bring South Carolina into compliance with the federal Violence Against Women Act.
SECTION 2. Section 16-3-740(A), (B), and (C) and of the 1976 Code is amended to read:
"(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 adults and juveniles.
(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 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. If the tests are performed prior to conviction or adjudication, the results of the tests must be reported only to the solicitor who obtained the court order. The solicitor shall notify the following persons of the tests results:
(1) the victim or the legal guardian of a victim who is a minor or is mentally retarded or mentally incapacitated;
(2) the victim's attorney;
(3) the offender and a juvenile offender's parent or guardian; 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 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 which indicate that the offender is infected with the disease. The 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 offender while the offender is imprisoned or detained. The State 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.
If the tests given pursuant to this section indicate infection by Hepatitis B or HIV, the Department of Health and Environmental Control shall be provided with all tests results and must provide counseling to the 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 advise the victim of available medical treatment options, refer the victim to for appropriate health care and support services, and at the request of the victim, or the legal guardian of a victim, test the victim for Hepatitis B and HIV and provide post-testing counseling to the victim."
SECTION 3. Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-750. (A) No law enforcement officer, prosecuting officer, or other governmental official shall ask or require an adult, youth, or child victim of an alleged criminal sexual conduct offense, as defined under federal, tribal, state, territorial, or local law, to submit to a polygraph examination or other truth telling device.
(B) The refusal of a victim to submit to an examination described in subsection (A) of this section shall not prevent the investigation, charging, or prosecution of the offense."
SECTION 4. Section 16-3-1350(A) and (B) of the 1976 Code is amended to read:
"(A) The State must ensure that a victim of criminal sexual conduct in any degree, criminal sexual conduct with a minor in any degree, or child sexual abuse must not bear the cost of his or her routine medicolegal exam following the assault if the victim has filed an incident report with a law enforcement agency.
(B) These exams must be standardized relevant to medical treatment and to gathering evidence from the body of the victim and must be based on and meet minimum standards for rape exam protocol as developed by the South Carolina Law Enforcement Division, the South Carolina Hospital Association, and the Governor's Office Division of Victim Assistance with production costs to be paid from funds appropriated for the Victim's Compensation Fund. These exams must include treatment for venereal disease sexually transmitted diseases, and must include medication for pregnancy prevention if indicated and if desired. The South Carolina Law Enforcement Division must distribute these exam kits to any licensed health care facility providing sexual assault exams. When dealing with a victim of criminal sexual assault, the law enforcement agency immediately must transport the victim to the nearest licensed health care facility which performs sexual assault exams. A health care facility providing sexual assault exams must use the standardized protocol described above in this subsection."
SECTION 5. Chapter 25, Title 16 of the 1976 Code is amended by adding:
"Section 16-25-30. At the time a person is convicted of violating the provisions of Section 16-25-20 or 16-25-65, the court must deliver to the person a written form that conspicuously bears the following language: 'Pursuant to 18 USC Section 922, it is unlawful for a person convicted of a violation of Section 16-25-20 or 16-25-65 to ship, transport, possess, or receive a firearm or ammunition.'."
SECTION 6. This act takes effect upon approval by the Governor.
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