LRB-1828/2
JEO:jlg:km
1999 - 2000 LEGISLATURE
March 25, 1999 - Introduced by Representatives Musser, Ryba, Huebsch,
Gronemus, Ainsworth, Owens, Reynolds, Sykora, Spillner, Petrowski,
Olsen, Albers, Kreibich, Hoven, Vrakas, Seratti and Powers, cosponsored by
Senators Moen, Baumgart, Roessler, Drzewiecki, Schultz and Farrow.
Referred to Committee on Corrections and the Courts.
AB250,1,10
1An Act to renumber 946.43;
to amend 146.81 (4), 252.11 (5m), 252.11 (7), 252.15
2(2) (a) 6., 252.15 (5) (a) 17., 302.11 (1g) (a) 2., 901.05 (2) (intro.), 901.05 (3),
3938.296 (3) (intro.), 938.296 (6), 938.299 (4) (b), 938.373 (1), 939.62 (2m) (a) 2m.
4b., 939.635 (1), 939.635 (2) (b), 950.04 (1v) (d), 968.38 (3) (intro.), 971.13 (4) and
5973.0135 (1) (b) 2.; and
to create 938.296 (2m), 938.296 (5), 938.346 (1) (ec),
6946.43 (2m), 968.38 (2m) and 968.38 (5) of the statutes;
relating to: prisoners
7throwing or expelling certain bodily substances at or toward others, testing for
8the presence of communicable diseases in certain criminal defendants and
9juveniles alleged to be delinquent or in need of protection or services and
10providing a penalty.
Analysis by the Legislative Reference Bureau
Assault by prisoners
Current law prohibits prisoners of a state prison or other state, county or
municipal detention facility from assaulting another prisoner or an officer, employe
or visitor of the prison or facility. A prisoner commits an assault in violation of this
prohibition if he or she does any of the following: 1) places the officer, employe, visitor
or prisoner in apprehension of an immediate battery that is likely to cause death or
great bodily harm; or 2) confines or restrains the officer, employe, visitor or prisoner
without the person's consent. A prisoner convicted of violating this prohibition may
be fined not more than $10,000 or imprisoned for not more than ten years or both,
if the offense occurs before December 31, 1999, or may be fined not more than $10,000
or imprisoned for not more than 15 years or both, if the offense occurs on or after
December 31, 1999.
Current law also prohibits a prisoner confined to a state prison or other state,
county or municipal detention facility from intentionally causing bodily harm to
another prisoner or to an officer, employe or visitor of the prison or facility without
the consent of the person harmed. A prisoner convicted of violating this prohibition
may be fined not more than $10,000 or imprisoned for not more than five years or
both, if the offense occurs before December 31, 1999, or may be fined not more than
$10,000 or imprisoned for not more than ten years or both, if the offense occurs on
or after December 31, 1999.
This bill creates a new prohibition relating to assaults by a prisoner against
another prisoner or an officer, employe or visitor of the prison or facility. Under the
bill, a prisoner is prohibited from throwing or expelling blood, semen, urine or feces
at or toward an officer, employe, visitor or another prisoner without the person's
consent if 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 and
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.
A prisoner who violates the prohibition created in the bill may be fined not more
than $10,000 or imprisoned for not more than two years or both, if the offense occurs
before December 31, 1999, or may be fined not more than $10,000 or imprisoned for
not more than five years or both, if the offense occurs on or after December 31, 1999.
If a judge imposes a sentence of imprisonment on a prisoner convicted of violating
the prohibition created in the bill, the judge must provide that the sentence be served
consecutively 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.
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
1Section
1. 146.81 (4) of the statutes is amended to read:
AB250,4,82
146.81
(4) "Patient health care records" means all records related to the health
3of a patient prepared by or under the supervision of a health care provider, including
4the records required under s. 146.82 (2) (d) and (3) (c), but not those records subject
5to s. 51.30, reports collected under s. 69.186, records of tests administered under s.
6252.15 (2) (a) 7., 343.305, 938.296 (4)
or (5) or 968.38 (4)
or (5), fetal monitor tracings,
7as defined under s. 146.817 (1), or a pupil's physical health records maintained by
8a school under s. 118.125.
AB250, s. 2
9Section
2. 252.11 (5m) of the statutes is amended to read:
AB250,4,1510
252.11
(5m) A health care professional, as defined in s. 968.38 (1) (a), acting
11under an order of a court under s. 938.296 (4)
or (5) or 968.38 (4)
or (5) may, without
12first obtaining informed consent to the testing, subject an individual to a test or a
13series of tests to ascertain whether that individual is infected with a sexually
14transmitted disease. No sample used for performance of a test under this subsection
15may disclose the name of the test subject.
AB250, s. 3
16Section
3. 252.11 (7) of the statutes is amended to read:
AB250,5,317
252.11
(7) Reports, examinations and inspections and all records concerning
18sexually transmitted diseases are confidential and not open to public inspection, and
19shall not be divulged except as may be necessary for the preservation of the public
20health, in the course of commitment proceedings under sub. (5) or as provided under
21s. 938.296 (4)
or (5) or 968.38 (4)
or (5). If a physician has reported a case of sexually
1transmitted disease to the department under sub. (4), information regarding the
2presence of the disease and treatment is not privileged when the patient or physician
3is called upon to testify to the facts before any court of record.
AB250, s. 4
4Section
4. 252.15 (2) (a) 6. of the statutes is amended to read:
AB250,5,115
252.15
(2) (a) 6. A health care professional acting under an order of the court
6under subd. 7. or s. 938.296 (4)
or (5) or 968.38 (4)
or (5) may, without first obtaining
7consent to the testing, subject an individual to a test or a series of tests to detect the
8presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. No
9sample used for laboratory test purposes under this subdivision may disclose the
10name of the test subject, and, notwithstanding sub. (4) (c), the test results may not
11be made part of the individual's permanent medical record.
AB250, s. 5
12Section
5. 252.15 (5) (a) 17. of the statutes is amended to read:
AB250,5,1713
252.15
(5) (a) 17. To an alleged victim or victim, to a health care professional,
14upon request as specified in s. 938.296 (4) (e)
or (5) (e) or 968.38 (4) (c)
or (5) (c), who
15provides care to the alleged victim or victim and, if the alleged victim or victim is a
16minor, to the parent or guardian of the alleged victim or victim, under s. 938.296 (4)
17or (5) or 968.38 (4)
or (5).
AB250, s. 6
18Section
6. 302.11 (1g) (a) 2. of the statutes is amended to read:
AB250,5,2319
302.11
(1g) (a) 2. Any felony under s. 940.02, 940.03, 940.05, 940.09 (1), 940.19
20(5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305 (2), 940.31 (1) or (2) (b), 943.02,
21943.10 (2), 943.23 (1g) or (1m), 943.32 (2), 946.43
(1m), 948.02 (1) or (2), 948.025,
22948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) or (c) or
23948.36.
AB250, s. 7
24Section
7. 901.05 (2) (intro.) of the statutes is amended to read:
AB250,6,9
1901.05
(2) (intro.) Except as provided in sub. (3), the results of a test or tests
2for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to
3HIV
and the fact that a person has been ordered or required to submit to such a test
4or tests under s. 938.296 (4) or 968.38 (4) are not admissible during the course of a
5civil or criminal action or proceeding or an administrative proceeding, as evidence
6of a person's character or a trait of his or her character for the purpose of proving that
7he or she acted in conformity with that character on a particular occasion unless the
8evidence is admissible under s. 904.04 (1) or 904.05 (2) and unless the following
9procedures are used:
AB250, s. 8
10Section
8. 901.05 (3) of the statutes is amended to read:
AB250,6,1411
901.05
(3) The results of a test or tests under s. 938.296 (4)
or (5) or 968.38 (4)
12or (5) and the fact that a person has been ordered to submit to such a test or tests
13under s. 938.296 (4)
or (5) or 968.38 (4)
or (5) are not admissible during the course
14of a civil or criminal action or proceeding or an administrative proceeding.
AB250, s. 9
15Section
9. 938.296 (2m) of the statutes is created to read:
AB250,6,2116
938.296
(2m) In a proceeding under s. 938.12 or 938.13 (12) in which the
17juvenile is alleged to have violated s. 946.43 (2m), the district attorney or corporation
18counsel shall apply to the court for an order requiring the juvenile to submit to a test
19or a series of tests administered by a health care professional to detect the presence
20of communicable diseases and to disclose the results of the test or tests as specified
21in sub. (5) (a) to (e), if all of the following apply:
AB250,6,2422
(a) The victim or alleged victim, if an adult, or the parent, guardian or legal
23custodian of the victim or alleged victim, if the victim or alleged victim is a child,
24requests the district attorney or corporation counsel to apply for the order.
AB250,7,4
1(b) The district attorney or corporation counsel has probable cause to believe
2that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m)
3carried a potential for transmitting a communicable disease to the victim or alleged
4victim and involved the juvenile's blood, semen, urine or feces.
AB250, s. 10
5Section
10. 938.296 (3) (intro.) of the statutes is amended to read:
AB250,7,76
938.296
(3) (intro.) The district attorney or corporation counsel may apply for
7an order under sub. (2)
or (2m) at any of the following times:
AB250, s. 11
8Section
11. 938.296 (5) of the statutes is created to read:
AB250,7,239
938.296
(5) On receipt of an application for an order under sub. (2m), the court
10shall set a time for a hearing on the application. If the juvenile has been found not
11competent to proceed under s. 938.30 (5), the court may hold a hearing under this
12subsection only if the court first determines that the probable cause finding can be
13fairly made without the personal participation of the juvenile. If, after hearing, the
14court finds probable cause to believe that the act or alleged act of the juvenile that
15constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a
16communicable disease to the victim or alleged victim and involved the juvenile's
17blood, semen, urine or feces, the court shall order the juvenile to submit to a test or
18a series of tests administered by a health care professional to detect the presence of
19any communicable disease that was potentially transmitted by the act or alleged act
20of the juvenile. The court shall require the health care professional who performs
21the test or series of tests to refrain, notwithstanding s. 252.15 (4) (c), if applicable,
22from making the test results part of the juvenile's permanent medical record and to
23disclose the results of the test to any of the following:
AB250,7,2424
(a) The parent, guardian or legal custodian of the juvenile.
AB250,7,2525
(b) The victim or alleged victim, if the victim or alleged victim is an adult.
AB250,8,2
1(c) The parent, guardian or legal custodian of the victim or alleged victim, if the
2victim or alleged victim is a child.
AB250,8,43
(d) The health care professional that provides care for the juvenile, upon
4request by the parent, guardian or legal custodian of the juvenile.
AB250,8,85
(e) The health care professional that provides care for the victim or alleged
6victim, upon request by the victim or alleged victim or, if the victim or alleged victim
7is a child, upon request by the parent, guardian or legal custodian of the victim or
8alleged victim.
AB250, s. 12
9Section
12. 938.296 (6) of the statutes is amended to read:
AB250,8,1410
938.296
(6) The court may order the county to pay for the cost of a test or series
11of tests ordered under sub. (4)
or (5). This subsection does not prevent recovery of
12reasonable contribution toward the cost of that test or series of tests from the parent
13or guardian of the juvenile as the court may order based on the ability of the parent
14or guardian to pay. This subsection is subject to s. 301.03 (18).
AB250, s. 13
15Section
13. 938.299 (4) (b) of the statutes is amended to read:
AB250,9,416
938.299
(4) (b) Except as provided in s. 901.05, neither common law nor
17statutory rules of evidence are binding at a waiver hearing under s. 938.18, a hearing
18for a juvenile held in custody under s. 938.21, a hearing under s. 938.296 (4) for a
19juvenile who is alleged to have violated s. 940.225, 948.02, 948.025, 948.05 or 948.06,
20a hearing under s. 938.296 (5) for a juvenile who is alleged to have violated s. 946.43
21(2m), a dispositional hearing, or any postdispositional hearing under this chapter.
22At those hearings, the court shall admit all testimony having reasonable probative
23value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or
24evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted
25if it has demonstrable circumstantial guarantees of trustworthiness. The court shall
1give effect to the rules of privilege recognized by law. The court shall apply the basic
2principles of relevancy, materiality and probative value to proof of all questions of
3fact. Objections to evidentiary offers and offers of proof of evidence not admitted may
4be made and shall be noted in the record.
AB250, s. 14
5Section
14. 938.346 (1) (ec) of the statutes is created to read:
AB250,9,116
938.346
(1) (ec) The procedure under s. 938.296 under which the victim, if an
7adult, or the parent, guardian or legal custodian of the victim, if the victim is a child,
8may request an order requiring a juvenile who is alleged to have violated s. 946.43
9(2m) to submit to a test or a series of tests to detect the presence of communicable
10diseases and to have the results of that test or series of tests disclosed as provided
11in s. 938.296 (5) (a) to (e).
AB250, s. 15
12Section
15. 938.373 (1) of the statutes is amended to read:
AB250,9,1813
938.373
(1) The court assigned to exercise jurisdiction under this chapter and
14ch. 48 may authorize medical services including surgical procedures when needed if
15the court assigned to exercise jurisdiction under this chapter and ch. 48 determines
16that reasonable cause exists for the services and that the juvenile is within the
17jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch.
1848 and, except as provided in s. 938.296 (4)
and (5), consents.
AB250, s. 16
19Section
16. 939.62 (2m) (a) 2m. b. of the statutes is amended to read:
AB250,9,2420
939.62
(2m) (a) 2m. b. Any felony under s. 940.01, 940.02, 940.03, 940.05,
21940.09 (1), 940.16, 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31,
22941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43
(1m),
23948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30
24(2), 948.35 (1) (b) or (c) or 948.36.
AB250, s. 17
25Section
17. 939.635 (1) of the statutes is amended to read:
AB250,10,10
1939.635
(1) Except as provided in sub. (2), if a person who has been adjudicated
2delinquent is convicted of violating s. 940.20 (1) while placed in a secured correctional
3facility, as defined in s. 938.02 (15m), a secure detention facility, as defined in s.
4938.02 (16), or a secured child caring institution, as defined in s. 938.02 (15g), or is
5convicted of violating s. 940.20 (2m), the court shall sentence the person to not less
6than 3 years of imprisonment. Except as provided in sub. (2), if a person is convicted
7of violating s. 946.43
(1m) while placed in a secured correctional facility, as defined
8in s. 938.02 (15m), a secure detention facility, as defined in s. 938.02 (16), or a secured
9child caring institution, as defined in s. 938.02 (15g), the court shall sentence the
10person to not less than 5 years of imprisonment.
AB250, s. 18
11Section
18. 939.635 (2) (b) of the statutes is amended to read:
AB250,10,1712
939.635
(2) (b) That imposing the applicable presumptive minimum sentence
13specified in sub. (1) is not necessary to deter the person or other persons from
14committing violations of s. 940.20 (1) or 946.43
(1m) or other similar offenses while
15placed in a secured correctional facility, as defined in s. 938.02 (15m), a secure
16detention facility, as defined in s. 938.02 (16), or a secured child caring institution,
17as defined in s. 938.02 (15g), or from committing violations of s. 940.20 (2m).