SB323: Bill Text

SB323,1,6 An Act to amend 48.296 (2) (b), 48.296 (4) (intro.), 968.38 (2) (a), 968.38 (3) (c) and 968.38 (4) (intro.); and to create 48.296 (3) (c) and (d), 968.38 (3) (d) and 971.13 (4) of the statutes; relating to: testing criminal defendants who are found not competent to proceed or not guilty by reason of mental disease or defect for the presence of the human immunodeficiency virus and sexually transmitted diseases.

Analysis by the Legislative Reference Bureau

Under current law, a person may be required to undergo testing to detect the presence of human immunodeficiency virus (HIV) and sexually transmitted diseases if the person is: 1) an adult charged with or convicted of sexual assault of an adult, sexual assault of a child, repeated acts of sexual assault of the same child, sexual exploitation of a child or incest with a child; or 2) a child alleged to be delinquent or in need of protection or services because he or she is alleged to have committed sexual assault of an adult, sexual assault of a child, repeated acts of sexual assault of the same child, sexual exploitation of a child or incest with a child. A district attorney must apply for an order requiring the person to undergo testing if: 1) the victim or, if the victim is a minor, the victim's parent or guardian requests the district attorney to apply to a court for an order requiring the testing; and 2) the district attorney has probable cause to believe that the person has significantly exposed the victim to the transmission of HIV or a sexually transmitted disease, except that such probable cause is not required if the person has been convicted or adjudicated delinquent or found in need of protection or services. The district attorney must apply for the order while the criminal or juvenile proceeding is pending against the person or after the person is convicted or adjudicated delinquent or found in need of protection or services. The court must hold a hearing to determine whether there is probable cause to believe that the person has significantly exposed the victim to the transmission of HIV or a sexually transmitted disease. The results of any required tests must be disclosed to: the person tested; the victim or, if the victim is a minor, to the victim's parent or guardian; the health care professional who provides care to the victim, if requested by the victim or the victim's parent or guardian; and the health care provider of the person tested, if the person tested is a child and disclosure is requested by the child's parent or guardian.

Current law does not provide for the testing of a person after he or she has been found not guilty or not responsible by reason of mental disease or defect. In addition, current law does not provide for the testing of a person if the criminal or juvenile proceeding against the person has been suspended because he or she has been found not competent to proceed. A person is not competent to proceed if he or she lacks substantial mental capacity to understand the proceedings or assist in his or her own defense, and he or she may not be tried, convicted or sentenced, or found delinquent or in need of protection or services, so long as the incapacity endures. Thus, in a case under current law involving a person who is found not competent to proceed, if a district attorney did not apply for an order requiring testing before the person was found incompetent to proceed, the person could not be required to undergo testing unless the person regained competency and the criminal or juvenile proceeding resumed.

This bill allows a court to order a person to undergo tests for the presence of HIV and sexually transmitted diseases if the person has been found not guilty or not responsible by reason of mental disease or defect of sexual assault of an adult, sexual assault of a child, repeated acts of sexual assault of the same child, sexual exploitation of a child or incest with a child. Under the bill, the district attorney must apply for an order requiring testing of a person found not guilty or not responsible by reason of mental disease or defect if the district attorney is requested to do so by the victim or, if the victim is a minor, the victim's parent or guardian. The district attorney may apply for the order at any time after the person is found not guilty or not responsible by reason of mental disease or defect. As under current law for a person who has been convicted, if a person has been found not guilty or not responsible by reason of mental disease or defect, a district attorney does not need probable cause to believe that the person has significantly exposed the victim to the transmission of HIV or a sexually transmitted disease to apply for an order for testing. As under current law, a court must hold a hearing to determine whether there is probable cause to believe that the person found not guilty or not responsible by reason of mental disease or defect has significantly exposed the victim to the transmission of HIV or a sexually transmitted disease.

In addition, the bill allows a court to order a person to undergo tests for the presence of HIV and sexually transmitted disease if the person has been charged with, or alleged to be delinquent or in need of protection or services for committing, sexual assault of an adult, sexual assault of a child, repeated acts of sexual assault of the same child, sexual exploitation of a child or incest with a child, and has been found not competent to proceed. Under the bill, the district attorney must apply for an order requiring testing of a person found not competent to proceed if requested to do so by the victim or, if the victim is a minor, the victim's parent or guardian. The district attorney also must have probable cause to believe that the person has significantly exposed the victim to the transmission of HIV or a sexually transmitted disease. The district attorney may apply for the order at any time after the person is found not competent to proceed. The court must hold a hearing to determine whether there is probable cause to believe that the person has significantly exposed the victim to the transmission of HIV or a sexually transmitted disease, unless that probable cause determination cannot be made fairly without the personal participation of the person.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB323, s. 1 Section 1. 48.296 (2) (b) of the statutes is amended to read:

SB323,3,6 48.296 (2) (b) The district attorney or corporation counsel has probable cause to believe that the child has significantly exposed the victim or alleged victim. If the child is adjudicated delinquent or, is found to be in need of protection or services or is found not responsible by reason of mental disease or defect under s. 48.30 (5), this paragraph does not apply.

SB323, s. 2 Section 2. 48.296 (3) (c) and (d) of the statutes are created to read:

SB323,3,9 48.296 (3) (c) At any time after the child is found not responsible by reason of mental disease or defect under s. 48.30 (5).

SB323,3,12 (d) If the court has determined that the child is not competent to proceed under s. 48.30 (5) and has suspended proceedings on the petition, at any time after the determination that the child is not competent to proceed.

SB323, s. 3 Section 3. 48.296 (4) (intro.) of the statutes is amended to read:

SB323,4,10 48.296 (4) (intro.)  On receipt of an application for an order under sub. (2), the court shall set a time for a hearing on the application. If the child has been found not competent to proceed under s. 48.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the child. If, after hearing, the court finds probable cause to believe that the child has significantly exposed the victim or alleged victim, the court shall order the child to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test or series of tests to refrain, notwithstanding s. 252.15 (4) (c), from making the test results part of the child's permanent medical record and to disclose the results of the test to any of the following:

SB323, s. 4 Section 4. 968.38 (2) (a) of the statutes is amended to read:

SB323,4,15 968.38 (2) (a) The district attorney has probable cause to believe that the defendant has significantly exposed the alleged victim or victim. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply.

SB323, s. 5 Section 5. 968.38 (3) (c) of the statutes is amended to read:

SB323,4,18 968.38 (3) (c) At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect.

SB323, s. 6 Section 6. 968.38 (3) (d) of the statutes is created to read:

SB323,4,23 968.38 (3) (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) and suspended the criminal proceedings before par. (a), (b) or (c) apply, at any time after the determination that the defendant is not competent to proceed.

SB323, s. 7 Section 7. 968.38 (4) (intro.) of the statutes is amended to read:

SB323,5,18 968.38 (4) (intro.)  The court shall set a time for a hearing on the matter under sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; or after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the defendant has significantly exposed the victim or alleged victim, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain, notwithstanding s. 252.15 (4) (c), from making the test results part of the defendant's permanent medical record and to disclose the results of the test to any of the following:

SB323, s. 8 Section 8. 971.13 (4) of the statutes is created to read:

SB323,5,23 971.13 (4) The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4) unless the probable cause finding required under s. 968.38 (4) cannot be fairly made without the personal participation of the defendant.

SB323, s. 9 Section 9. Initial applicability.

SB323,6,3 (1)  This act first applies to a person who is alleged to have committed a violation of section 940.225, 948.02, 948.025, 948.05 or 948.06 of the statutes on the effective date of this subsection.

SB323,6,4 (End)