§325-16.5 - Counseling and testing of sexual assault victims; testing of sex offenders upon request of victim.

§325-16.5 Counseling and testing of
sexual assault victims; testing of sex offenders upon request of victim. (a)
Any sexual assault victim, or the parent or guardian of a minor or
incapacitated victim, shall be informed as soon as practicable after the
assault, of the availability of human immunodeficiency virus testing for the
victim, the availability of counseling for the victim, and the right of the
victim to request that the person charged with an offense listed in section
325-16(c)(7), involving the victim, be tested for human immunodeficiency virus.
The victim, or the parent or guardian of a minor or incapacitated
victim, and the charged person shall be provided human immunodeficiency virus
counseling prior to being tested, and follow-up counseling at the time the
results are presented to the victim or the parent or guardian of a minor or
incapacitated victim and the charged person.

Any sexual assault victim, or the parent or
guardian of a minor or incapacitated victim, shall be informed as soon as
practicable after a conviction, of the availability of human immunodeficiency
virus testing for the victim, the availability of counseling for the
victim, and the right of the victim to demand that the person convicted
of an offense listed in section 325-16(c)(8), involving the victim, be
tested for human immunodeficiency virus. The victim, or the parent or guardian
of a minor or incapacitated victim, and the convicted person shall be provided human
immunodeficiency virus counseling prior to being tested, and follow-up
counseling at the time the results are presented to the victim or the parent or
guardian of a minor or incapacitated victim and the convicted person.

(b) The court shall order a charged person to
be tested for the etiological agent for the human immunodeficiency virus (HIV)
if the victim has requested that the person be tested for HIV. The following
procedures shall be used when ordering the test:

(1) The victim or the parent or guardian of a minor
or incapacitated victim shall be informed, as soon as practicable, of the right
to request that the charged person be tested for HIV, the availability of
department of health funded HIV testing for the victim, and the availability of
HIV counseling for the victim. If the victim or parent or guardian of a minor
or incapacitated victim requests the HIV status of a charged person, the
victim, parent, or guardian shall designate a physician or a certified HIV
counselor to receive the test result, provide counseling, and notify the
victim, parent, or guardian of the test result;

(2) If the victim or parent or guardian of a minor or
incapacitated victim requests, in writing, that the charged person be tested
for HIV, the court shall order the person to submit to an HIV test subject to a
showing of probable cause. Notwithstanding any law to the contrary, for
purposes of determining probable cause for this order, a court may consider all
relevant facts indicating whether HIV transmission is demonstrated by the
preponderance of the evidence. The proceedings to determine whether or not
such an order is issued shall be in camera.

Whenever practicable, blood samples taken for HIV
testing under this section shall be taken in conjunction with samples taken for
DNA testing under section 706-603; provided that the HIV test results shall not
be disclosed to any person other than the physician or HIV counselor designated
to receive the results by the victim or the parent or the guardian of a minor
or incapacitated victim.

The HIV test results shall remain otherwise
confidential and the court may fashion orders to effectuate the prohibition
against dissemination of the information. The adult probation division shall
not disclose the HIV test results obtained under this section through any
report. The court shall not take into account the HIV test results obtained
under this section for any purpose, including determination of pretrial release
of defendants, trial and sentencing. The Hawaii paroling authority shall not
take into account the HIV test results obtained under this section for any
purpose, including determination of minimum terms of incarceration and granting
or denying of parole.

(c) The court shall order a convicted person
to be tested for the etiological agent for HIV. The procedures used when ordering
the test shall be as follows:

(1) The victim or the parent or guardian of a minor
or incapacitated victim shall be informed, as soon as practicable, of the court
order mandating the convicted person be tested for HIV, the availability of
department of health funded HIV testing for the victim, and the
availability of HIV counseling for the victim. The victim, parent, or guardian
shall designate a physician or a certified HIV counselor to receive the test
results of the convicted person, provide counseling, and notify the victim,
parent, or guardian of the test results; and

(2) The proceedings to issue such an order shall be
in camera.

Whenever practicable, blood samples taken for
HIV testing under this section shall be taken in conjunction with samples taken
for DNA testing under section 706-603; provided that the HIV test results shall
not be disclosed to any person other than the physician or HIV counselor
designated to receive the results by the victim or the parent or the guardian
of a minor or incapacitated victim.

(d) The results of the charged or convicted
person's HIV test shall be forwarded by the laboratory to the designated
physician or HIV counselor, and shall be released by the physician, in
consultation with the department of health or the HIV counselor, to the charged
or convicted person and the victim or the parent or guardian of a minor or
incapacitated victim. Prior to such release, the victim or the parent or
guardian shall be required to sign a notice of HIV status disclosure advising
them of the confidentiality provisions regarding HIV test results and the penalties
for unlawful disclosure pursuant to section 325-101.

(e) No person authorized under this paragraph
to withdraw blood or assist in the performance of the HIV test, or any medical
facility where the blood is drawn or tested that has been ordered by the court
to withdraw or test blood, shall be liable in any civil or criminal action if
the test is performed in a reasonable manner according to generally accepted
medical practices.

(f) As used in this section, unless the
context requires otherwise:

"Charged person" means a person who
has been charged with an offense under section 707-730, 707-731, 707-732(1)(a),
707-733.6, or 707‑741, including a juvenile charged of such an offense.
A person is charged when a formal complaint, information, or indictment has
been accepted by the court.

"Convicted person" means a person who
has been convicted of an offense under section 707-730, 707-731, 707-732(1)(a),
707-733.6, or 707‑741, including a juvenile adjudicated of such an
offense. A person is convicted when a verdict or adjudication has been
rendered by a judge or jury, or a plea of guilty or nolo contendere has been
accepted by the court.

"HIV counseling" means HIV counseling
which conforms to the guidelines of the department of health or the Centers for
Disease Control and Prevention, and includes referral for appropriate health
care and support services.

"HIV counselor" means any person who
has been trained and certified in HIV counseling by the department of health or
the Centers for Disease Control and Prevention and who is not a victim
counselor employed by or a volunteer with any law enforcement agency. [L 1998,
c 238, §2; am L 2002, c 238, §3; am L 2006, c 60, §3; am L 2009, c 116, §3]

Law Journals and Reviews

Reconsidering Hawai‘i's HIV Statute: The Need to Protect an
Individual's Basic Liberties. 28 UH L. Rev. 169.