Bill Summary – FastDemocracy

Stricken language would be deleted from and underlined language would be added to present law.
                                           Act 653 of the Regular Session
 1   State of Arkansas               As Engrossed:      S3/1/21 S3/11/21
 2   93rd General Assembly                        A Bill
 3   Regular Session, 2021                                                             SENATE BILL 308
 4
 5   By: Senator K. Hammer
 6   By: Representative L. Fite
 7
 8                                     For An Act To Be Entitled
 9                   AN ACT REQUIRING THE STATE TO OFFER A VICTIM OF
10                   SEXUAL ASSAULT THE CHOICE TO REQUIRE THE PERSON
11                   ACCUSED OF COMMITTING A SEXUAL ASSAULT ON THE VICTIM
12                   TO TAKE AN HIV TEST WITHIN FORTY-EIGHT HOURS AFTER
13                   THE DATE ON WHICH THE INFORMATION OR INDICTMENT IS
14                   PRESENTED; AND FOR OTHER PURPOSES.
15
16
17                                                 Subtitle
18                           REQUIRING THE STATE TO OFFER A VICTIM OF
19                           SEXUAL ASSAULT THE CHOICE TO REQUIRE THE
20                           PERSON ACCUSED OF COMMITTING A SEXUAL
21                           ASSAULT ON THE VICTIM TO TAKE AN HIV
22                           TEST.
23
24
25   BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
26
27           SECTION 1.      Arkansas Code  16-82-101 is amended to read as follows:
28           16-82-101.      Testing for human immunodeficiency virus  Sexual offenses.
29           (a)   A person with acquired immunodeficiency syndrome (AIDS) or who
30   tests positive for the presence of human immunodeficiency virus (HIV) antigen
31   or antibodies is infectious to others through the exchange of body fluids
32   during sexual intercourse and through the parenteral transfer of blood or
33   blood products and under these circumstances is a is therefore a potential
34   danger to the public.
35           (b)(1)(A)       Any A person arrested and charged with violating   5-14-
36   103,  5-14-110,  5-14-124  5-14-127,  5-26-202, and or  5-70-102 may be
     *BPG114*                                                                    03-11-2021 09:47:10 BPG114
     As Engrossed:    S3/1/21 S3/11/21                                                   SB308
 1   required by the court having jurisdiction of the criminal prosecution, upon a
 2   finding of reasonable cause to believe that the person committed the offense
 3   and subject to constitutional limitations, to be tested for the presence of
 4   human immunodeficiency virus (HIV) or any an antibody to human
 5   immunodeficiency virus (HIV) unless the court determines that testing the
 6   defendant would be inappropriate and documents the reasons for that
 7   determination in the court record.
 8                          (B)(i)(a)       Subject to constitutional limitations, the
 9   victim of an offense listed under subdivision (b)(1)(A) of this section may
10   request that the person arrested and charged with the offense be tested for
11   the presence of human immunodeficiency virus (HIV) or an antibody to human
12   immunodeficiency virus (HIV), whether or not he or she is in custody, and the
13   results of the tests provided to the victim.
14                                          (b)   Upon the victim's request under
15   subdivision (b)(1)(B)(i)(a) of this section, the court shall require that the
16   person be tested within forty-eight (48) hours of the information's or
17   indictment's being presented to the person if the court finds that there is a
18   reasonable cause to believe that the person committed the offense and the
19   charge against the person has an element of forcible compulsion or the threat
20   of forcible compulsion.
21                                   (ii)   Subsequent tests for the presence of human
22   immunodeficiency virus (HIV) or an antibody to human immunodeficiency virus
23   (HIV) shall be required as medically appropriate with results of the
24   subsequent tests also provided to the victim as soon as practicable.
25                 (2)(A)     The test A test under this subsection shall be
26   confidentially administered by a licensed physician, the Division of Health
27   of the Department of Health and Human Services Department of Health, or a
28   local health department.
29                          (B)(i)     If the person arrested and charged with the offense
30   is in the custody of the Department of Corrections, the test shall be
31   administered by a medical professional working within the Department of
32   Corrections.
33                                   (ii)   If the test is requested by an entity for
34   forensic purposes and not by the Department of Corrections, the cost for the
35   test shall be the responsibility of the requesting entity.
36        (c)(1)     If the victim or person with whom the defendant engaged in
                                                  2               03-11-2021 09:47:10 BPG114
     As Engrossed:       S3/1/21 S3/11/21                                           SB308
 1   sexual penetration during the course of the crime consents, the court shall
 2   provide the person or agency administering the test with the name, address,
 3   and telephone number of the victim or person with whom the defendant engaged
 4   in sexual penetration during the course of the crime.
 5                 (2)    After the defendant is tested as to for the presence of
 6   human immunodeficiency virus (HIV) or an antibody to human immunodeficiency
 7   virus (HIV), the person or agency administering the test shall immediately
 8   provide the test results to the victim or person with whom the defendant
 9   engaged in sexual penetration during the course of the crime, and shall refer
10   the victim or other person for appropriate counseling.
11        (d)(1)     It shall be mandatory that upon Upon request of the victim, and
12   conviction of the defendant, a court of competent jurisdiction shall order
13   the convicted person to submit to testing to detect in the defendant the
14   presence of the etiologic agent for acquired immunodeficiency syndrome
15   (AIDS).
16                 (2)    For purposes of As used in this subsection:
17                         (A)   The term convicted "Convicted" includes adjudicated
18   an adjudication under juvenile proceedings; and
19                         (B)   The term sexual "Sexual offense shall mean those
20   offenses enumerated means an offense listed in subdivision (b)(1)(A) of this
21   section.
22                 (3)    The testing of a person convicted of a sexual offense as
23   enumerated in subdivision (b)(1) of this section shall be conducted by the
24   division Department of Health upon an order of a circuit court.
25                 (4)    The results of any tests performed pursuant to under this
26   subsection shall immediately be released to the victim and to the defendant;
27   otherwise, the results of any tests performed shall be confidential and not
28   subject to disclosure as public information under the Freedom of Information
29   Act of 1967,  25-19-101 et seq.
30                 (5)    Any A victim of a sexual offense as enumerated in
31   subdivision (b)(1) of this section shall, upon request of the victim,
32   receive:
33                         (A)   Appropriate counseling;
34                         (B)   Human immunodeficiency virus (HIV) testing; and
35                         (C)   Referral or delivery for appropriate health care and
36   support services.
                                             3               03-11-2021 09:47:10 BPG114
     As Engrossed:   S3/1/21 S3/11/21                                        SB308
 1
 2                                      /s/K. Hammer
 3
 4
 5                                  APPROVED: 4/12/21
 6
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
                                          4             03-11-2021 09:47:10 BPG114