SB3673 97TH GENERAL ASSEMBLY

LRB097 17709 RLC 62923 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB3673

Introduced 2/10/2012, by Sen. Dale A. Righter

SYNOPSIS AS INTRODUCED:

410 ILCS 305/9	from Ch. 111 1/2, par. 7309
720 ILCS 5/12-5.01	was 720 ILCS 5/12-16.2

Amends the AIDS Confidentiality Act. Provides that the identity of any person upon whom an HIV test is performed, and the results of such a test in a manner which permits identification of the subject of the test may be disclosed to a court in accordance with the provisions of the statute concerning the offense of criminal transmission of HIV. Amends the Criminal Code of 1961 concerning criminal transmission of HIV. Requires the defendant to have the specific intent to commit the offense. Requires the defendant to know that he or she is infected with HIV. Changes an element of the offense from engaging in intimate contact with another to engaging in sexual activity with another without the use of a condom when the defendant knows that he or she is infected with HIV. Provides that a prosecuting entity may issue a subpoena duces tecum for the records of a person charged with the offense of criminal transmission of HIV or a subpoena for the attendance of a person with relevant knowledge thereof so long as the return of the records or attendance of the person pursuant to the subpoena is submitted initially to the court for an in camera inspection. Provides that only upon a finding by the court that the records or proffered testimony are relevant to the pending offense, the information sought by the subpoena shall be disclosed to the prosecuting entity and admissible if otherwise permitted by law. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning human immunodeficiency virus.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The AIDS Confidentiality Act is amended by changing Section 9 as follows:

(410 ILCS 305/9) (from Ch. 111 1/2, par. 7309)

Sec. 9. No person may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits identification of the subject of the test, except to the following persons:

(a) The subject of the test or the subject's legally authorized representative. A physician may notify the spouse of the test subject, if the test result is positive and has been confirmed pursuant to rules adopted by the Department, provided that the physician has first sought unsuccessfully to persuade the patient to notify the spouse or that, a reasonable time after the patient has agreed to make the notification, the physician has reason to believe that the patient has not provided the notification. This paragraph shall not create a duty or obligation under which a physician must notify the spouse of the test results, nor shall such duty or obligation be implied. No civil liability or criminal sanction under this Act shall be imposed for any disclosure or non-disclosure of a test result to a spouse by a physician acting in good faith under this paragraph. For the purpose of any proceedings, civil or criminal, the good faith of any physician acting under this paragraph shall be presumed.

(b) Any person designated in a legally effective release of the test results executed by the subject of the test or the subject's legally authorized representative.

(c) An authorized agent or employee of a health facility or health care provider if the health facility or health care provider itself is authorized to obtain the test results, the agent or employee provides patient care or handles or processes specimens of body fluids or tissues, and the agent or employee has a need to know such information.

(d) The Department and local health authorities serving a population of over 1,000,000 residents or other local health authorities as designated by the Department, in accordance with rules for reporting and controlling the spread of disease, as otherwise provided by State law. The Department, local health authorities, and authorized representatives shall not disclose information and records held by them relating to known or suspected cases of AIDS or HIV infection, publicly or in any action of any kind in any court or before any tribunal, board, or agency. AIDS and HIV infection data shall be protected from disclosure in accordance with the provisions of Sections 8-2101 through 8-2105 of the Code of Civil Procedure.

(e) A health facility or health care provider which procures, processes, distributes or uses: (i) a human body part from a deceased person with respect to medical information regarding that person; or (ii) semen provided prior to the effective date of this Act for the purpose of artificial insemination.

(f) Health facility staff committees for the purposes of conducting program monitoring, program evaluation or service reviews.

(f-5) A court in accordance with the provisions of Section 12-5.01 of the Criminal Code of 1961.

(g) (Blank).

(h) Any health care provider or employee of a health facility, and any firefighter or EMT-A, EMT-P, or EMT-I, involved in an accidental direct skin or mucous membrane contact with the blood or bodily fluids of an individual which is of a nature that may transmit HIV, as determined by a physician in his medical judgment.

(i) Any law enforcement officer, as defined in subsection (c) of Section 7, involved in the line of duty in a direct skin or mucous membrane contact with the blood or bodily fluids of an individual which is of a nature that may transmit HIV, as determined by a physician in his medical judgment.

(j) A temporary caretaker of a child taken into temporary protective custody by the Department of Children and Family Services pursuant to Section 5 of the Abused and Neglected Child Reporting Act, as now or hereafter amended.

(k) In the case of a minor under 18 years of age whose test result is positive and has been confirmed pursuant to rules adopted by the Department, the health care provider who ordered the test shall make a reasonable effort to notify the minor's parent or legal guardian if, in the professional judgment of the health care provider, notification would be in the best interest of the child and the health care provider has first sought unsuccessfully to persuade the minor to notify the parent or legal guardian or a reasonable time after the minor has agreed to notify the parent or legal guardian, the health care provider has reason to believe that the minor has not made the notification. This subsection shall not create a duty or obligation under which a health care provider must notify the minor's parent or legal guardian of the test results, nor shall a duty or obligation be implied. No civil liability or criminal sanction under this Act shall be imposed for any notification or non-notification of a minor's test result by a health care provider acting in good faith under this subsection. For the purpose of any proceeding, civil or criminal, the good faith of any health care provider acting under this subsection shall be presumed.

(Source: P.A. 96-328, eff. 8-11-09.)

Section 10. The Criminal Code of 1961 is amended by changing Section 12-5.01 as follows:

(720 ILCS 5/12-5.01) (was 720 ILCS 5/12-16.2)

Sec. 12-5.01. Criminal transmission of HIV.

(a) A person commits criminal transmission of HIV when he or she, with the specific intent to commit the offense knowing that he or she is infected with HIV:

(1) engages in sexual activity with another without the use of a condom knowing that he or she is infected with HIV intimate contact with another;

(2) transfers, donates, or provides his or her blood, tissue, semen, organs, or other potentially infectious body fluids for transfusion, transplantation, insemination, or other administration to another knowing that he or she is infected with HIV; or

(3) dispenses, delivers, exchanges, sells, or in any other way transfers to another any nonsterile intravenous or intramuscular drug paraphernalia knowing that he or she is infected with HIV.

(b) For purposes of this Section:

"HIV" means the human immunodeficiency virus or any other identified causative agent of acquired immunodeficiency syndrome.

"Sexual activity" means the insertive vaginal or anal intercourse on the part of an infected male, receptive consensual vaginal intercourse on the part of an infected woman with a male partner, or receptive consensual anal intercourse on the part of an infected man or woman with a male partner.

"Intimate contact with another" means the exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of HIV.

"Intravenous or intramuscular drug paraphernalia" means any equipment, product, or material of any kind which is peculiar to and marketed for use in injecting a substance into the human body.

(c) Nothing in this Section shall be construed to require that an infection with HIV has occurred in order for a person to have committed criminal transmission of HIV.

(d) It shall be an affirmative defense that the person exposed knew that the infected person was infected with HIV, knew that the action could result in infection with HIV, and consented to the action with that knowledge.

(d-5) A court, upon a finding of reasonable suspicion that an individual has committed the crime of criminal transmission of HIV, shall order the production of records of a person accused of the offense of criminal transmission of HIV or the attendance of a person with relevant knowledge thereof so long as the return of the records or attendance of the person pursuant to the subpoena is submitted initially to the court for an in camera inspection. Only upon a finding by the court that the records or proffered testimony are relevant to the pending offense, the information produced pursuant to the court's order shall be disclosed to the prosecuting entity and admissible if otherwise permitted by law.

(e) A person who commits criminal transmission of HIV commits a Class 2 felony.

(Source: P.A. 96-1551, eff. 7-1-11.)

Section 99. Effective date. This Act takes effect upon becoming law.