SB323,1,6 1An Act to amend 48.296 (2) (b), 48.296 (4) (intro.), 968.38 (2) (a), 968.38 (3) (c)
2and 968.38 (4) (intro.); and to create 48.296 (3) (c) and (d), 968.38 (3) (d) and
3971.13 (4) of the statutes; relating to: testing criminal defendants who are
4found not competent to proceed or not guilty by reason of mental disease or
5defect for the presence of the human immunodeficiency virus and sexually
6transmitted 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 1Section 1. 48.296 (2) (b) of the statutes is amended to read:
SB323,3,62 48.296 (2) (b) The district attorney or corporation counsel has probable cause
3to believe that the child has significantly exposed the victim or alleged victim. If the
4child is adjudicated delinquent or, is found to be in need of protection or services or
5is found not responsible by reason of mental disease or defect under s. 48.30 (5)
, this
6paragraph does not apply.
SB323, s. 2 7Section 2. 48.296 (3) (c) and (d) of the statutes are created to read:
SB323,3,98 48.296 (3) (c) At any time after the child is found not responsible by reason of
9mental disease or defect under s. 48.30 (5).
SB323,3,1210 (d) If the court has determined that the child is not competent to proceed under
11s. 48.30 (5) and has suspended proceedings on the petition, at any time after the
12determination that the child is not competent to proceed.
SB323, s. 3 13Section 3. 48.296 (4) (intro.) of the statutes is amended to read:
SB323,4,1014 48.296 (4) (intro.)  On receipt of an application for an order under sub. (2), the
15court shall set a time for a hearing on the application. If the child has been found
16not competent to proceed under s. 48.30 (5), the court may hold a hearing under this

1subsection only if the court first determines that the probable cause finding can be
2fairly made without the personal participation of the child.
If, after hearing, the
3court finds probable cause to believe that the child has significantly exposed the
4victim or alleged victim, the court shall order the child to submit to a test or a series
5of tests administered by a health care professional to detect the presence of HIV,
6antigen or nonantigenic products of HIV, an antibody to HIV or a sexually
7transmitted disease. The court shall require the health care professional who
8performs the test or series of tests to refrain, notwithstanding s. 252.15 (4) (c), from
9making the test results part of the child's permanent medical record and to disclose
10the results of the test to any of the following:
SB323, s. 4 11Section 4. 968.38 (2) (a) of the statutes is amended to read:
SB323,4,1512 968.38 (2) (a) The district attorney has probable cause to believe that the
13defendant has significantly exposed the alleged victim or victim. If the defendant is
14convicted or found not guilty by reason of mental disease or defect, this paragraph
15does not apply.
SB323, s. 5 16Section 5. 968.38 (3) (c) of the statutes is amended to read:
SB323,4,1817 968.38 (3) (c) At any time after the defendant is convicted or is found not guilty
18by reason of mental disease or defect
.
SB323, s. 6 19Section 6. 968.38 (3) (d) of the statutes is created to read:
SB323,4,2320 968.38 (3) (d) If the court has determined that the defendant is not competent
21to proceed under s. 971.14 (4) and suspended the criminal proceedings before par. (a),
22(b) or (c) apply, at any time after the determination that the defendant is not
23competent to proceed.
SB323, s. 7 24Section 7. 968.38 (4) (intro.) of the statutes is amended to read:
SB323,5,18
1968.38 (4) (intro.)  The court shall set a time for a hearing on the matter under
2sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the
3defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b)
4applies; or after conviction or a finding of not guilty by reason of mental disease or
5defect
, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that
6the defendant is not competent, if sub. (3) (d) applies
. The court shall give the district
7attorney and the defendant notice of the hearing at least 72 hours prior to the
8hearing. The defendant may have counsel at the hearing, and counsel may examine
9and cross-examine witnesses. If the court finds probable cause to believe that the
10defendant has significantly exposed the victim or alleged victim, the court shall order
11the defendant to submit to a test or a series of tests administered by a health care
12professional to detect the presence of HIV, antigen or nonantigenic products of HIV,
13an antibody to HIV or a sexually transmitted disease. The court shall require the
14health care professional who performs the test to disclose the test results to the
15defendant. The court shall require the health care professional who performs the
16test to refrain, notwithstanding s. 252.15 (4) (c), from making the test results part
17of the defendant's permanent medical record and to disclose the results of the test
18to any of the following:
SB323, s. 8 19Section 8. 971.13 (4) of the statutes is created to read:
SB323,5,2320 971.13 (4) The fact that a defendant is not competent to proceed does not
21preclude a hearing under s. 968.38 (4) unless the probable cause finding required
22under s. 968.38 (4) cannot be fairly made without the personal participation of the
23defendant.
SB323, s. 9 24Section 9. Initial applicability.
SB323,6,3
1(1)  This act first applies to a person who is alleged to have committed a
2violation of section 940.225, 948.02, 948.025, 948.05 or 948.06 of the statutes on the
3effective date of this subsection.
SB323,6,44 (End)
Loading...
Loading...