§325-16.5  Counseling and testing ofsexual assault victims; testing of sex offenders upon request of victim.  (a) Any sexual assault victim, or the parent or guardian of a minor orincapacitated victim, shall be informed as soon as practicable after theassault, of the availability of human immunodeficiency virus testing for thevictim, the availability of counseling for the victim, and the right of thevictim to request that the person charged with an offense listed in section325-16(c)(7), involving the victim, be tested for human immunodeficiency virus. The victim, or the parent or guardian of a minor or incapacitatedvictim, and the charged person shall be provided human immunodeficiency viruscounseling prior to being tested, and follow-up counseling at the time theresults are presented to the victim or the parent or guardian of a minor orincapacitated victim and the charged person.

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

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

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

(2)  If the victim or parent or guardian of a minor orincapacitated victim requests, in writing, that the charged person be testedfor HIV, the court shall order the person to submit to an HIV test subject to ashowing of probable cause.  Notwithstanding any law to the contrary, forpurposes of determining probable cause for this order, a court may consider allrelevant facts indicating whether HIV transmission is demonstrated by thepreponderance of the evidence.  The proceedings to determine whether or notsuch an order is issued shall be in camera.

Whenever practicable, blood samples taken for HIVtesting under this section shall be taken in conjunction with samples taken forDNA testing under section 706-603; provided that the HIV test results shall notbe disclosed to any person other than the physician or HIV counselor designatedto receive the results by the victim or the parent or the guardian of a minoror incapacitated victim.

The HIV test results shall remain otherwiseconfidential and the court may fashion orders to effectuate the prohibitionagainst dissemination of the information.  The adult probation division shallnot disclose the HIV test results obtained under this section through anyreport.  The court shall not take into account the HIV test results obtainedunder this section for any purpose, including determination of pretrial releaseof defendants, trial and sentencing.  The Hawaii paroling authority shall nottake into account the HIV test results obtained under this section for anypurpose, including determination of minimum terms of incarceration and grantingor denying of parole.

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

(1)  The victim or the parent or guardian of a minoror incapacitated victim shall be informed, as soon as practicable, of the courtorder mandating the convicted person be tested for HIV, the availability ofdepartment of health funded HIV testing for the victim, and theavailability of HIV counseling for the victim.  The victim, parent, or guardianshall designate a physician or a certified HIV counselor to receive the testresults 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 bein camera.

Whenever practicable, blood samples taken forHIV testing under this section shall be taken in conjunction with samples takenfor DNA testing under section 706-603; provided that the HIV test results shallnot be disclosed to any person other than the physician or HIV counselordesignated to receive the results by the victim or the parent or the guardianof a minor or incapacitated victim.

The HIV test results shall remain otherwiseconfidential and the court may fashion orders to effectuate the prohibitionagainst dissemination of the information.  The adult probation division shallnot disclose the HIV test results obtained under this section through anyreport.  The court shall not take into account the HIV test results obtainedunder this section for any purpose, including determination of pretrial releaseof defendants, trial and sentencing.  The Hawaii paroling authority shall nottake into account the HIV test results obtained under this section for anypurpose, including determination of minimum terms of incarceration and grantingor denying of parole.

(d)  The results of the charged or convictedperson's HIV test shall be forwarded by the laboratory to the designatedphysician or HIV counselor, and shall be released by the physician, inconsultation with the department of health or the HIV counselor, to the chargedor convicted person and the victim or the parent or guardian of a minor orincapacitated victim. Prior to such release, the victim or the parent orguardian shall be required to sign a notice of HIV status disclosure advisingthem of the confidentiality provisions regarding HIV test results and the penaltiesfor unlawful disclosure pursuant to section 325-101.

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

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

"Charged person" means a person whohas 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 hasbeen accepted by the court.

"Convicted person" means a person whohas 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 anoffense.  A person is convicted when a verdict or adjudication has beenrendered by a judge or jury, or a plea of guilty or nolo contendere has beenaccepted by the court.

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

"HIV counselor" means any person whohas been trained and certified in HIV counseling by the department of health orthe Centers for Disease Control and Prevention and who is not a victimcounselor 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 anIndividual's Basic Liberties.  28 UH L. Rev. 169.