§12391 — Title 34 Navy | U.S. Code

Summary

A victim can ask a federal court to order a person charged with a crime to be tested for HIV. The court can do this only after the defendant is given notice and a chance to be heard. To get the order, the victim must show the defendant has been charged in state or federal court (and that there was a probable cause finding if the arrest was without a warrant), that the victim asked for the test after getting counseling, and that the court finds the defendant’s alleged conduct created a risk of HIV transmission as defined by the Centers for Disease Control. Test results must be given to the victim and the defendant with counseling. If the first test is negative, the victim may request follow-up tests and counseling at six months and twelve months. The testing order ends if all related charges are dismissed or the defendant is acquitted. Results are private and may be shown only to the victim, the person tested, and, if the court allows, the victim’s parent or guardian. The victim may tell a medical professional, counselor, family member, or sexual partner(s) they have had since the attack, and those people must keep it confidential. The court will seal the records, bar using the test results in a criminal trial, and can hold anyone who improperly shares results in contempt. The United States Sentencing Commission had to study and report to the Senate and House Judiciary Committees no later than 6 months after September 13, 1994, about changing sentencing rules for cases where a person with HIV knowingly engages in sex intending to expose another person.

Title 34, §12391

Navy — Source: USLM XML via OLRC

(a)

(b)(1)The victim of an offense of the type referred to in subsection (a) 11 See Codification note below. may obtain an order in the district court of the United States for the district in which charges are brought against the defendant charged with the offense, after notice to the defendant and an opportunity to be heard, requiring that the defendant be tested for the presence of the etiologic agent for acquired immune deficiency syndrome, and that the results of the test be communicated to the victim and the defendant. Any test result of the defendant given to the victim or the defendant must be accompanied by appropriate counseling.

(2)To obtain an order under paragraph (1), the victim must demonstrate that—

(A)the defendant has been charged with the offense in a State or Federal court, and if the defendant has been arrested without a warrant, a probable cause determination has been made;

(B)the test for the etiologic agent for acquired immune deficiency syndrome is requested by the victim after appropriate counseling; and

(C)the test would provide information necessary for the health of the victim of the alleged offense and the court determines that the alleged conduct of the defendant created a risk of transmission, as determined by the Centers for Disease Control, of the etiologic agent for acquired immune deficiency syndrome to the victim.

(3)The court may order follow-up tests and counseling under paragraph (1) if the initial test was negative. Such follow-up tests and counseling shall be performed at the request of the victim on dates that occur six months and twelve months following the initial test.

(4)An order for follow-up testing under paragraph (3) shall be terminated if the person obtains an acquittal on, or dismissal of, all charges of the type referred to in subsection (a).1

(5)The results of any test ordered under this subsection shall be disclosed only to the victim or, where the court deems appropriate, to the parent or legal guardian of the victim, and to the person tested. The victim may disclose the test results only to any medical professional, counselor, family member or sexual partner(s) the victim may have had since the attack. Any such individual to whom the test results are disclosed by the victim shall maintain the confidentiality of such information.

(6)The court shall issue an order to prohibit the disclosure by the victim of the results of any test performed under this subsection to anyone other than those mentioned in paragraph (5). The contents of the court proceedings and test results pursuant to this section shall be sealed. The results of such test performed on the defendant under this section shall not be used as evidence in any criminal trial.

(7)Any person who discloses the results of a test in violation of this subsection may be held in contempt of court.

(c)Not later than 6 months after September 13, 1994, the United States Sentencing Commission shall conduct a study and prepare and submit to the committees 22 So in original. Probably should be capitalized. on the Judiciary of the Senate and the House of Representatives a report concerning recommendations for the revision of sentencing guidelines that relate to offenses in which an HIV infected individual engages in sexual activity if the individual knows that he or she is infected with HIV and intends, through such sexual activity, to expose another to HIV.

Notes & Related Subsidiaries

Editorial Notes

Codification Section was formerly classified to section 14011 of Title 42, The Public Health and Welfare, prior to editorial reclassification and renumbering as this section. Section is comprised of section 40503 of Pub. L. 103–322. Subsec. (a) of section 40503 of Pub. L. 103–322 amended section 20141 of this title. Subsec. (c) of section 40503 of Pub. L. 103–322 also enacted provisions listed in a table relating to sentencing guidelines set out under section 994 of Title 28, Judiciary and Judicial Procedure.

Amendments

1996—Subsec. (b)(3). Pub. L. 104–294 substituted “paragraph (1)” for “paragraph (b)(1)”.

Statutory Notes and Related Subsidiaries

Change of Name

Centers for Disease Control changed to Centers for Disease Control and Prevention by Pub. L. 102–531, title III, § 312, Oct. 27, 1992, 106 Stat. 3504.

Effective Date

of 1996 AmendmentAmendment by Pub. L. 104–294 effective Sept. 13, 1994, see section 604(d) of Pub. L. 104–294, set out as a note under section 13 of Title 18, Crimes and Criminal Procedure.

§12391 Payment of Cost of Testing for Sexually Transmitted Diseases