AB250: Bill Text

Testing for the presence of communicable diseases

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 certain sex offenses; or 2) a child alleged to be delinquent or in need of protection or services because he or she is alleged to have committed certain sex offenses. The sex offenses covered by this requirement are 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.

Before a person may be required to undergo testing to detect the presence of HIV or a sexually transmitted disease, the prosecutor must apply for an order to have the person tested. A prosecutor must apply for an order if: 1) the victim or, if the victim is a minor, the victim's parent or guardian requests the prosecutor to apply to a court for an order requiring the testing; and 2) the prosecutor 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 court must then 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 following: 1) the person tested; 2) the parent, guardian or legal custodian of the person tested, if the person tested is a minor; 3) the victim or, if the victim is a minor, to the victim's parent or guardian; 4) the health care professional who provides care to the victim, if requested by the victim or the victim's parent or guardian; and 5) the health care provider of the person tested, if the person tested is a minor and disclosure is requested by the minor's parent or guardian.

This bill allows a court to order a person to undergo tests for the presence of communicable diseases if the person is a prisoner who has been charged with, convicted of or found not guilty by reason of mental disease or defect of assaulting another prisoner or an officer, employe or visitor of the prison or facility by throwing or expelling blood, semen, urine or feces at or toward the other prisoner or the officer, employe or visitor. Under the bill, a prosecutor must apply for an order requiring testing of a prisoner charged with this type of assault if: 1) the prosecutor is requested to do so by the victim or, if the victim is a minor, by the victim's parent or guardian; and 2) the prosecutor has probable cause to believe that the assault involved the prisoner's blood, semen, urine or feces and that the assault carried a potential for transmitting a communicable disease to the victim. The court must then hold a hearing to determine whether there is probable cause to believe that the assault involved the prisoner's blood, semen, urine or feces and that the assault carried a potential for transmitting a communicable disease to the victim. If the court finds probable cause, it must then order the prisoner to submit to a test or series of tests to detect the presence of any communicable disease that was potentially transmitted by the assault.

The results of any required tests for communicable diseases must be disclosed to the following: 1) the prisoner who is tested; 2) the parent, guardian or legal custodian of the prisoner, if the prisoner is a minor; 3) the victim or, if the victim is a minor, to the victim's parent or guardian; 4) the health care professional who provides care to the victim, if requested by the victim or the victim's parent or guardian; and 4) the health care provider of the prisoner who is tested, if the prisoner tested is a minor and disclosure is requested by the prisoner's parent or guardian. The communicable diseases for which tests may be ordered under the bill include HIV, sexually transmitted diseases, hepatitis B and hepatitis C.

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:

AB250, s. 1 Section 1. 146.81 (4) of the statutes is amended to read:

AB250,4,8 146.81 (4) "Patient health care records" means all records related to the health of a patient prepared by or under the supervision of a health care provider, including the records required under s. 146.82 (2) (d) and (3) (c), but not those records subject to s. 51.30, reports collected under s. 69.186, records of tests administered under s. 252.15 (2) (a) 7., 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), fetal monitor tracings, as defined under s. 146.817 (1), or a pupil's physical health records maintained by a school under s. 118.125.

AB250, s. 2 Section 2. 252.11 (5m) of the statutes is amended to read:

AB250,4,15 252.11 (5m) A health care professional, as defined in s. 968.38 (1) (a), acting under an order of a court under s. 938.296 (4) or (5) or 968.38 (4) or (5) may, without first obtaining informed consent to the testing, subject an individual to a test or a series of tests to ascertain whether that individual is infected with a sexually transmitted disease. No sample used for performance of a test under this subsection may disclose the name of the test subject.

AB250, s. 3 Section 3. 252.11 (7) of the statutes is amended to read:

AB250,5,3 252.11 (7) Reports, examinations and inspections and all records concerning sexually transmitted diseases are confidential and not open to public inspection, and shall not be divulged except as may be necessary for the preservation of the public health, in the course of commitment proceedings under sub. (5) or as provided under s. 938.296 (4) or (5) or 968.38 (4) or (5). If a physician has reported a case of sexually transmitted disease to the department under sub. (4), information regarding the presence of the disease and treatment is not privileged when the patient or physician is called upon to testify to the facts before any court of record.

AB250, s. 4 Section 4. 252.15 (2) (a) 6. of the statutes is amended to read:

AB250,5,11 252.15 (2) (a) 6. A health care professional acting under an order of the court under subd. 7. or s. 938.296 (4) or (5) or 968.38 (4) or (5) may, without first obtaining consent to the testing, subject an individual to a test or a series of tests to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. No sample used for laboratory test purposes under this subdivision may disclose the name of the test subject, and, notwithstanding sub. (4) (c), the test results may not be made part of the individual's permanent medical record.

AB250, s. 5 Section 5. 252.15 (5) (a) 17. of the statutes is amended to read:

AB250,5,17 252.15 (5) (a) 17. To an alleged victim or victim, to a health care professional, upon request as specified in s. 938.296 (4) (e) or (5) (e) or 968.38 (4) (c) or (5) (c), who provides care to the alleged victim or victim and, if the alleged victim or victim is a minor, to the parent or guardian of the alleged victim or victim, under s. 938.296 (4) or (5) or 968.38 (4) or (5).

AB250, s. 6 Section 6. 302.11 (1g) (a) 2. of the statutes is amended to read:

AB250,5,23 302.11 (1g) (a) 2. Any felony under s. 940.02, 940.03, 940.05, 940.09 (1), 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305 (2), 940.31 (1) or (2) (b), 943.02, 943.10 (2), 943.23 (1g) or (1m), 943.32 (2), 946.43 (1m), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

AB250, s. 7 Section 7. 901.05 (2) (intro.) of the statutes is amended to read:

AB250,6,9 901.05 (2) (intro.) Except as provided in sub. (3), the results of a test or tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV and the fact that a person has been ordered or required to submit to such a test or tests under s. 938.296 (4) or 968.38 (4) are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding, as evidence of a person's character or a trait of his or her character for the purpose of proving that he or she acted in conformity with that character on a particular occasion unless the evidence is admissible under s. 904.04 (1) or 904.05 (2) and unless the following procedures are used:

AB250, s. 8 Section 8. 901.05 (3) of the statutes is amended to read:

AB250,6,14 901.05 (3) The results of a test or tests under s. 938.296 (4) or (5) or 968.38 (4) or (5) and the fact that a person has been ordered to submit to such a test or tests under s. 938.296 (4) or (5) or 968.38 (4) or (5) are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding.

AB250, s. 9 Section 9. 938.296 (2m) of the statutes is created to read:

AB250,6,21 938.296 (2m) In a proceeding under s. 938.12 or 938.13 (12) in which the juvenile is alleged to have violated s. 946.43 (2m), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) to (e), if all of the following apply:

AB250,6,24 (a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for the order.

AB250,7,4 (b) The district attorney or corporation counsel has probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile's blood, semen, urine or feces.

AB250, s. 10 Section 10. 938.296 (3) (intro.) of the statutes is amended to read:

AB250,7,7 938.296 (3) (intro.) The district attorney or corporation counsel may apply for an order under sub. (2) or (2m) at any of the following times:

AB250, s. 11 Section 11. 938.296 (5) of the statutes is created to read:

AB250,7,23 938.296 (5) On receipt of an application for an order under sub. (2m), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (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 juvenile. If, after hearing, the court finds probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile's blood, semen, urine or feces, the court shall order the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the juvenile. The court shall require the health care professional who performs the test or series of tests to refrain, notwithstanding s. 252.15 (4) (c), if applicable, from making the test results part of the juvenile's permanent medical record and to disclose the results of the test to any of the following:

AB250,7,24 (a) The parent, guardian or legal custodian of the juvenile.

AB250,7,25 (b) The victim or alleged victim, if the victim or alleged victim is an adult.

AB250,8,2 (c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.

AB250,8,4 (d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.

AB250,8,8 (e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.

AB250, s. 12 Section 12. 938.296 (6) of the statutes is amended to read:

AB250,8,14 938.296 (6) The court may order the county to pay for the cost of a test or series of tests ordered under sub. (4) or (5). This subsection does not prevent recovery of reasonable contribution toward the cost of that test or series of tests from the parent or guardian of the juvenile as the court may order based on the ability of the parent or guardian to pay. This subsection is subject to s. 301.03 (18).

AB250, s. 13 Section 13. 938.299 (4) (b) of the statutes is amended to read:

AB250,9,4 938.299 (4) (b) Except as provided in s. 901.05, neither common law nor statutory rules of evidence are binding at a waiver hearing under s. 938.18, a hearing for a juvenile held in custody under s. 938.21, a hearing under s. 938.296 (4) for a juvenile who is alleged to have violated s. 940.225, 948.02, 948.025, 948.05 or 948.06, a hearing under s. 938.296 (5) for a juvenile who is alleged to have violated s. 946.43 (2m), a dispositional hearing, or any postdispositional hearing under this chapter. At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

AB250, s. 14 Section 14. 938.346 (1) (ec) of the statutes is created to read:

AB250,9,11 938.346 (1) (ec) The procedure under s. 938.296 under which the victim, if an adult, or the parent, guardian or legal custodian of the victim, if the victim is a child, may request an order requiring a juvenile who is alleged to have violated s. 946.43 (2m) to submit to a test or a series of tests to detect the presence of communicable diseases and to have the results of that test or series of tests disclosed as provided in s. 938.296 (5) (a) to (e).

AB250, s. 15 Section 15. 938.373 (1) of the statutes is amended to read:

AB250,9,18 938.373 (1) The court assigned to exercise jurisdiction under this chapter and ch. 48 may authorize medical services including surgical procedures when needed if the court assigned to exercise jurisdiction under this chapter and ch. 48 determines that reasonable cause exists for the services and that the juvenile is within the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 48 and, except as provided in s. 938.296 (4) and (5), consents.

AB250, s. 16 Section 16. 939.62 (2m) (a) 2m. b. of the statutes is amended to read:

AB250,9,24 939.62 (2m) (a) 2m. b. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09 (1), 940.16, 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43 (1m), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

AB250, s. 17 Section 17. 939.635 (1) of the statutes is amended to read:

AB250,10,10 939.635 (1) Except as provided in sub. (2), if a person who has been adjudicated delinquent is convicted of violating s. 940.20 (1) while placed in a secured correctional facility, as defined in s. 938.02 (15m), a secure detention facility, as defined in s. 938.02 (16), or a secured child caring institution, as defined in s. 938.02 (15g), or is convicted of violating s. 940.20 (2m), the court shall sentence the person to not less than 3 years of imprisonment. Except as provided in sub. (2), if a person is convicted of violating s. 946.43 (1m) while placed in a secured correctional facility, as defined in s. 938.02 (15m), a secure detention facility, as defined in s. 938.02 (16), or a secured child caring institution, as defined in s. 938.02 (15g), the court shall sentence the person to not less than 5 years of imprisonment.

AB250, s. 18 Section 18. 939.635 (2) (b) of the statutes is amended to read:

AB250,10,17 939.635 (2) (b) That imposing the applicable presumptive minimum sentence specified in sub. (1) is not necessary to deter the person or other persons from committing violations of s. 940.20 (1) or 946.43 (1m) or other similar offenses while placed in a secured correctional facility, as defined in s. 938.02 (15m), a secure detention facility, as defined in s. 938.02 (16), or a secured child caring institution, as defined in s. 938.02 (15g), or from committing violations of s. 940.20 (2m).

AB250, s. 19 Section 19. 946.43 of the statutes is renumbered 946.43 (1m).

AB250, s. 20 Section 20. 946.43 (2m) of the statutes is created to read:

AB250,10,24 946.43 (2m) (a) Any prisoner confined to a state prison or other state, county or municipal detention facility who throws or expels blood, semen, urine or feces at or toward an officer, employe or visitor of the prison or facility or another prisoner of the prison or facility under all of the following circumstances is guilty of a Class E felony:

AB250,11,2 1. The prisoner throws or expels the blood, semen, urine or feces with the intent that it come into contact with the officer, employe, visitor or other prisoner.

AB250,11,6 2. The prisoner throws or expels the blood, semen, urine or feces with the intent either to cause bodily harm to the officer, employe, visitor or other prisoner or to abuse, harass, offend, intimidate or frighten the officer, employe, visitor or other prisoner.

AB250,11,8 3. The officer, employe, visitor or other prisoner does not consent to the blood, semen, urine or feces being thrown or expelled at or toward him or her.

AB250,11,11 (b) A court shall impose a sentence for a violation of par. (a) consecutive to any sentence previously imposed or which may be imposed for any crime or offense for which the person was in custody when he or she committed the violation of par. (a).

AB250, s. 21 Section 21. 950.04 (1v) (d) of the statutes is amended to read:

AB250,11,17 950.04 (1v) (d) To request an order for, and to be given the results of, testing to determine the presence of a sexually transmitted disease or of any strain of human immunodeficiency virus, of antigen or nonantigen products of any strain of human immunodeficiency virus, or of an antibody of any strain of human immunodeficiency virus communicable disease, as provided under ss. 938.296 or 968.38.

AB250, s. 22 Section 22. 968.38 (2m) of the statutes is created to read:

AB250,11,23 968.38 (2m) In a criminal action under s. 946.43 (2m), the district attorney shall apply to the circuit court for his or her county for an order requiring the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) to (c), if all of the following apply:

AB250,12,2 (a) The district attorney has probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant's blood, semen, urine or feces.

AB250,12,5 (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to apply for an order.

AB250, s. 23 Section 23. 968.38 (3) (intro.) of the statutes is amended to read:

AB250,12,9 968.38 (3) (intro.) The district attorney may apply under sub. (2) or (2m) for an order at any of the following times, and, within those times, shall do so as soon as possible so as to enable the court to provide timely notice:

AB250, s. 24 Section 24. 968.38 (5) of the statutes is created to read:

AB250,13,5 968.38 (5) The court shall set a time for a hearing on the matter under sub. (2m) 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; 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 act or alleged act of the defendant that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant's blood, semen, urine or feces, 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 any communicable disease that was potentially transmitted by the act or alleged act of the defendant. 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), if applicable, 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:

AB250,13,6 (a) The alleged victim or victim, if the alleged victim or victim is not a minor.

AB250,13,8 (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.

AB250,13,11 (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.

AB250, s. 25 Section 25. 971.13 (4) of the statutes is amended to read:

AB250,13,16 971.13 (4) The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4) or (5) unless the probable cause finding required under s. 968.38 (4) to be made at the hearing cannot be fairly made without the personal participation of the defendant.

AB250, s. 26 Section 26. 973.0135 (1) (b) 2. of the statutes is amended to read:

AB250,13,22 973.0135 (1) (b) 2. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09 (1), 940.16, 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43 (1m), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

AB250, s. 27 Section 27. Initial applicability.

AB250,14,2 (1) This act first applies to offenses committed on the effective date of this subsection.