S 112 Session 110 (1993-1994)
S 0112 General Bill, By M.T. Rose and Courtney
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
16-3-745 so as to provide that a victim of a crime may request a warrant
requiring the accused to be tested for human immunodeficiency virus (HIV) when
body fluids may have been transferred to the victim during commission of the
crime.
01/12/93 Senate Introduced and read first time SJ-57
01/12/93 Senate Referred to Committee on Judiciary SJ-57
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY
ADDING SECTION 16-3-745 SO AS TO PROVIDE THAT A VICTIM OF
A CRIME MAY REQUEST A WARRANT REQUIRING THE ACCUSED
TO BE TESTED FOR HUMAN IMMUNODEFICIENCY VIRUS (HIV)
WHEN BODY FLUIDS MAY HAVE BEEN TRANSFERRED TO THE
VICTIM DURING COMMISSION OF THE CRIME.
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 human immunodeficiency
virus (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 provided for in subsection (B) 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.
(B) Before issuing a search warrant 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 issuing of a search warrant are
admissible. This hearing may be combined with a preliminary hearing.
(C) 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 the right to request a search warrant for the purpose of testing the
accused's blood as provided for in subsection (A). Before the victim makes
a request the prosecutor shall refer the victim to the local health
department for counseling concerning the extent to which the particular
circumstances of the crime may have put the victim at risk of transmission
of HIV from the accused and the benefits and limitations of the current
tests for HIV, and to assist the victim in deciding whether to request that
the accused be tested and whether the victim is to be tested. In ruling on
the victim's request the court may not consider the failure of a prosecutor
to refer or advise the victim as provided in this subsection or the failure or
refusal by the victim to seek or obtain counseling.
(D) 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 disclosed 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 department is responsible for disclosing test
results to the victim requesting the test and to the accused who was tested.
Positive test results must not be disclosed to the victim or to the accused
without providing or offering professional counseling appropriate to the
circumstances. The local health department and the victim shall comply
with all laws and policies relating to medical confidentiality applicable to
the testing and test results authorized by this section.
(F) A victim who receives information from the health department
pursuant to this section may disclose the test result as the victim considers
necessary to protect the victim's health and safety or the health and safety
of the victim's family or sexual partner.
(G) A person disclosing test results or information pursuant to this
section is immune from civil liability for any action taken in compliance
with this section.
(H) Blood test results obtained 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 use by a prosecutor in
making a charging decision nor does this section authorize breach of any
confidentiality statute or regulation."
SECTION 2. This act takes effect upon approval by the Governor.
-----XX----- |