CHAPTER 231

FORMERLY

SENATE BILL NO. 69

AN ACT TO AMEND CHAPTER 39, TITLE 11, AND CHAPTER 9, TITLE 10, DELAWARE CODE, TO PROVIDE FOR MANDATORY HUMAN IMMUNODEFICIENCY VIRUS TESTING OF CERTAIN SEX CRIME OFFENDERS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 39, Title 11, Delaware Code, by designating said chapter as Subchapter I and adding thereto a new Subchapter II to read as follows:

"Subchapter II. Voluntary and mandatory testing of offenders convicted of certain sex crimes.

§3910. Definitions.

For purposes of this Subchapter, the following words, terms, and phrases shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) 'Human immunodeficiency virus test' means a test or tests of an individual for presence of human immunodeficiency virus, or for antibodies or antigens that result from human immunodeficiency virus infection, or for any other substance specifically indicating human immunodeficiency virus infection, and includes preliminary screening tests.

§3911. Human immunodeficiency virus testing made available.

A defendant charged with an offense pursuant to Chapter 5 of this Title which has sexual intercourse or deviate sexual intercourse as an element, or has sexual contact as an element when the circumstances of the case demonstrate a possibility of transmission of human immunodeficiency virus, shall upon initial court appearance on the charge, be informed by the judge of the availability of human immunodeficiency virus testing. The judge shall also notify the victim of the offense, or parent or guardian of the victim, that the defendant has been so notified.

§3912. Order to undergo human immunodeficiency testing.

When a defendant has been arrested and charged with any offense in §3911 of this subchapter, other provisions of law to the contrary notwithstanding, the court, at arraignment, regardless of any prior human immunodeficiency virus test on the defendant, shall order the defendant to undergo human immunodeficiency virus testing at the request of the victim, under the direction of the Division of Public Health.

§3913. Test result not a public record.

The result of any human immunodeficiency virus test conducted pursuant to this subchapter shall not be a public record for purposes of Chapter 100, Title 29, Delaware Code.

§3914. Test results; notification to Department of Corrections; counseling; cost; notice of appeal not to automatically stay order for HIV testing.

(a) The result of any human immunodeficiency virus testing conducted pursuant to this subchapter shall only be made available by the Division of Public Health to the victim, or the parent or guardian of the victim who is a minor or is mentally retarded or mentally incapacitated, the defendant, the court issuing the order for testing, and any other person or agency pursuant to the provisions of Chapter 12 and 12A, Title 16, Delaware Code.

(b) In addition, the Division of Public Health shall provide to the Department of Corrections the result of any human immunodeficiency virus test conducted pursuant to this subchapter which indicates that the defendant is infected with the human immunodeficiency virus. The Department of Corrections shall use this information solely for the purpose of providing medical treatment to the defendant while incarcerated in any correctional institution.

(c) If the human immunodeficiency virus test indicates the presence of human immunodeficiency virus infection, the Division of Public Health shall provide counseling to the victim and the defendant regarding human immunodeficiency virus disease, and referral for appropriate health care and support services.

(d) The cost of testing under this subchapter shall be paid by the defendant tested, unless the court has determined that the defendant is an indigent person.

(e) Filing of a notice of appeal shall not automatically stay an order that the defendant submit to a human immunodeficiency virus test."

Section 2. Amend Chapter 9, Title 10, Delaware Code, by adding thereto a new Subchapter IV to read as follows:

"Subchapter IV. Voluntary and mandatory human immunodeficiency virus testing of certain sex offenders.

§937A. Definitions.

For purposes of this subchapter, the following words, terms, and phrases shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

'Human immunodeficiency virus test' means a test or tests of an individual for presence of human immunodeficiency virus, or for antibodies or antigens that result from human immunodeficiency virus infection, or for any other substance specifically indicating human immunodeficiency virus infection, and includes preliminary screening.

§938A. HIV testing made available.

(a) A person charged with an offense pursuant to Chapter 5, Title 11, Delaware Code, which has sexual intercourse or deviate sexual intercourse as an element, or has sexual contact as an element when the circumstances of the case demonstrate a possibility of transmission of human immunodeficiency virus, shall upon initial court appearance on the charge, he informed by the judge of the availability of human immunodeficiency virus testing under the provisions of Chapter 12, Title 16, Delaware Code. The judge shall also notify the victim of the offense, or parent or guardian of the victim, that the defendant has been so notified.

§939A. Order to submit to human immunodeficiency virus testing; test results; notification to Department of Services to Children, Youth and Their Families; counseling; costs; notice of appeal not to stay order for HIV testing.

(a) When a defendant has been arrested and charged with an offense in §937A of this subchapter, other provisions of law to the contrary notwithstanding, the court, at arraignment, regardless of any prior human immunodeficiency virus test on the defendant, shall order, at the request of the victim, the defendant to undergo human immunodeficiency virus testing, under the direction of the Division of Public Health.

(a) The result of any human immunodeficiency virus test conducted pursuant to this subchapter shall not be a public record for purposes of Chapter 100, Title 29, Delaware Code.

(b) The result of any human immunodeficiency virus testing conducted pursuant to this subchapter shall only be made available by the Division of Public Health to the victim, or the parent or guardian of the victim who is a minor or is mentally retarded or mentally incapacitated, the defendant, the court issuing the order for testing and any other person or agency pursuant to provisions of Chapter 12 and 12A, Title 16, Delaware Code.

(c) In addition, the Division of Public Health shall provide to the Department of Services to Children, Youth and Their Families the result of any human immunodeficiency virus test conducted pursuant to this subchapter which indicates that the defendant is infected with the human immunodeficiency virus. The Department of Services to Children, Youth and Their Families shall use this information solely for the purpose of providing medical treatment to the defendant while incarcerated in any institution under the Department's jurisdiction.

(d) If the human immunodeficiency virus test indicates the presence of human immunodeficiency virus infection, the Division of Public Health shall provide counseling to the victim and the defendant regarding human immunodeficiency virus disease, and referral for appropriate health care and support services.

(e) The costs of testing under this subchapter shall be paid by the defendant tested, unless the court has determined that the defendant is an indigent person.

(f) Filing of a notice of appeal shall not stay an order that the defendant submit to a human immunodeficiency virus test."

(g)

Approved May 27, 1994.