S 0074 General Bill, By M.T. Rose
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
 16-3-745 so as to require HIV testing of a person charged with the commission
 of crimes during which body fluids may have been transferred.

   09/10/90  Senate Prefiled
   09/10/90  Senate Referred to Committee on Judiciary
   01/08/91  Senate Introduced and read first time SJ-44
   01/08/91  Senate Referred to Committee on Judiciary SJ-44

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-3-745 SO AS TO REQUIRE HIV TESTING OF A PERSON CHARGED WITH THE COMMISSION OF CRIMES DURING WHICH BODY FLUIDS MAY HAVE BEEN TRANSFERRED.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The 1976 Code is amended by adding:

"Section 16-3-745. (A) When a defendant has been charged by complaint, information, or indictment with a crime, or a minor is the subject of a petition filed in juvenile court alleging commission of a crime, the court, at the request of the victim, may issue a search warrant for the purpose of testing the accused's blood with any HIV test found by the court to be safe and reliable. The search warrant may be issued only if the court finds, upon the conclusion of the hearing described below, that there is probable cause to believe that the accused committed the offense and that there is probable cause to believe that blood, semen, or other body fluid capable of transmitting the human immunodeficiency virus has been transferred from the accused to the victim.

Before the issuance of a search warrant pursuant to this subsection, the court shall conduct a hearing at which both the victim and the defendant have the right to be present. During the hearing only affidavits, counter affidavits, and medical reports regarding the facts which support or rebut the issuance of a search warrant under this subsection are admissible. This hearing may be combined with a preliminary hearing.

(B) In all cases in which a person has been charged with the commission of a crime or is the subject of a petition filed in a juvenile court alleging the commission of a crime, the prosecutor shall advise the victim of his right to make this request. To assist the victim of the crime to determine whether he should make this request, the prosecutor shall refer the victim to the local health officer for prerequest counseling to help the victim understand the extent to which the particular circumstances of the crime may have put the victim at risk of transmission of HIV from the accused, to ensure that the victim understands both the benefits and limitations of the current tests for HIV, to help the victim decide whether he wants to request that the accused be tested, and to help the victim decide whether he wants to be tested.

(C) If the victim decides to request HIV testing of the accused, the victim shall request the issuance of a search warrant, as described in subsection (A).

Neither the failure of a prosecutor to refer or advise the victim as provided in this subsection, nor the failure or refusal by the victim to seek or obtain counseling, may be considered by the court in ruling on the victim's request.

(D) Any blood tested pursuant to this section is subject to appropriate confirmatory tests to ensure accuracy of the first test results, and under no circumstances may test results be transmitted to the victim or the accused unless an initially reactive test result has been confirmed by appropriate confirmatory tests for positive reactors.

(E) The local health officer shall have the responsibility for disclosing test results to the victim who requested the test and to the accused who was tested. Positive test results must not be disclosed to the victim or to the

accused without also providing or offering professional counseling appropriate to the circumstances.

The local health officer and victim shall comply with all laws and policies relating to medical confidentiality subject to the disclosure authorized by this section.

(F) A victim who receives information from the health officer pursuant to subsection (E) may disclose the test result as the victim considers necessary to protect his health and safety or the health and safety of his family or sexual partner.

(G) A person transmitting test results or disclosing information pursuant to this section is immune from civil liability for any action taken in compliance with this section.

(H) The results of any blood tested pursuant to this section must not be used in any criminal proceeding. Nothing in this section authorizes mandatory testing or disclosure of test results for the purpose of a charging decision by a prosecutor, nor does this section authorize breach of any confidentiality statute or regulation."

SECTION 2. This act takes effect upon approval by the Governor.