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.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB3673LRB097 17709 RLC 62923 b

1    AN ACT concerning human immunodeficiency virus.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The AIDS Confidentiality Act is amended by
5changing Section 9 as follows:
 
6    (410 ILCS 305/9)  (from Ch. 111 1/2, par. 7309)
7    Sec. 9. No person may disclose or be compelled to disclose
8the identity of any person upon whom a test is performed, or
9the results of such a test in a manner which permits
10identification of the subject of the test, except to the
11following persons:
12    (a) The subject of the test or the subject's legally
13authorized representative. A physician may notify the spouse of
14the test subject, if the test result is positive and has been
15confirmed pursuant to rules adopted by the Department, provided
16that the physician has first sought unsuccessfully to persuade
17the patient to notify the spouse or that, a reasonable time
18after the patient has agreed to make the notification, the
19physician has reason to believe that the patient has not
20provided the notification. This paragraph shall not create a
21duty or obligation under which a physician must notify the
22spouse of the test results, nor shall such duty or obligation
23be implied. No civil liability or criminal sanction under this

 

 

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1Act shall be imposed for any disclosure or non-disclosure of a
2test result to a spouse by a physician acting in good faith
3under this paragraph. For the purpose of any proceedings, civil
4or criminal, the good faith of any physician acting under this
5paragraph shall be presumed.
6    (b) Any person designated in a legally effective release of
7the test results executed by the subject of the test or the
8subject's legally authorized representative.
9    (c) An authorized agent or employee of a health facility or
10health care provider if the health facility or health care
11provider itself is authorized to obtain the test results, the
12agent or employee provides patient care or handles or processes
13specimens of body fluids or tissues, and the agent or employee
14has a need to know such information.
15    (d) The Department and local health authorities serving a
16population of over 1,000,000 residents or other local health
17authorities as designated by the Department, in accordance with
18rules for reporting and controlling the spread of disease, as
19otherwise provided by State law. The Department, local health
20authorities, and authorized representatives shall not disclose
21information and records held by them relating to known or
22suspected cases of AIDS or HIV infection, publicly or in any
23action of any kind in any court or before any tribunal, board,
24or agency. AIDS and HIV infection data shall be protected from
25disclosure in accordance with the provisions of Sections 8-2101
26through 8-2105 of the Code of Civil Procedure.

 

 

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1    (e) A health facility or health care provider which
2procures, processes, distributes or uses: (i) a human body part
3from a deceased person with respect to medical information
4regarding that person; or (ii) semen provided prior to the
5effective date of this Act for the purpose of artificial
6insemination.
7    (f) Health facility staff committees for the purposes of
8conducting program monitoring, program evaluation or service
9reviews.
10    (f-5) A court in accordance with the provisions of Section
1112-5.01 of the Criminal Code of 1961.
12    (g) (Blank).
13    (h) Any health care provider or employee of a health
14facility, and any firefighter or EMT-A, EMT-P, or EMT-I,
15involved in an accidental direct skin or mucous membrane
16contact with the blood or bodily fluids of an individual which
17is of a nature that may transmit HIV, as determined by a
18physician in his medical judgment.
19    (i) Any law enforcement officer, as defined in subsection
20(c) of Section 7, involved in the line of duty in a direct skin
21or mucous membrane contact with the blood or bodily fluids of
22an individual which is of a nature that may transmit HIV, as
23determined by a physician in his medical judgment.
24    (j) A temporary caretaker of a child taken into temporary
25protective custody by the Department of Children and Family
26Services pursuant to Section 5 of the Abused and Neglected

 

 

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1Child Reporting Act, as now or hereafter amended.
2    (k) In the case of a minor under 18 years of age whose test
3result is positive and has been confirmed pursuant to rules
4adopted by the Department, the health care provider who ordered
5the test shall make a reasonable effort to notify the minor's
6parent or legal guardian if, in the professional judgment of
7the health care provider, notification would be in the best
8interest of the child and the health care provider has first
9sought unsuccessfully to persuade the minor to notify the
10parent or legal guardian or a reasonable time after the minor
11has agreed to notify the parent or legal guardian, the health
12care provider has reason to believe that the minor has not made
13the notification. This subsection shall not create a duty or
14obligation under which a health care provider must notify the
15minor's parent or legal guardian of the test results, nor shall
16a duty or obligation be implied. No civil liability or criminal
17sanction under this Act shall be imposed for any notification
18or non-notification of a minor's test result by a health care
19provider acting in good faith under this subsection. For the
20purpose of any proceeding, civil or criminal, the good faith of
21any health care provider acting under this subsection shall be
22presumed.
23(Source: P.A. 96-328, eff. 8-11-09.)
 
24    Section 10. The Criminal Code of 1961 is amended by
25changing Section 12-5.01 as follows:
 

 

 

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1    (720 ILCS 5/12-5.01)  (was 720 ILCS 5/12-16.2)
2    Sec. 12-5.01. Criminal transmission of HIV.
3    (a) A person commits criminal transmission of HIV when he
4or she, with the specific intent to commit the offense knowing
5that he or she is infected with HIV:
6        (1) engages in sexual activity with another without the
7    use of a condom knowing that he or she is infected with HIV
8    intimate contact with another;
9        (2) transfers, donates, or provides his or her blood,
10    tissue, semen, organs, or other potentially infectious
11    body fluids for transfusion, transplantation,
12    insemination, or other administration to another knowing
13    that he or she is infected with HIV; or
14        (3) dispenses, delivers, exchanges, sells, or in any
15    other way transfers to another any nonsterile intravenous
16    or intramuscular drug paraphernalia knowing that he or she
17    is infected with HIV.
18    (b) For purposes of this Section:
19    "HIV" means the human immunodeficiency virus or any other
20identified causative agent of acquired immunodeficiency
21syndrome.
22    "Sexual activity" means the insertive vaginal or anal
23intercourse on the part of an infected male, receptive
24consensual vaginal intercourse on the part of an infected woman
25with a male partner, or receptive consensual anal intercourse

 

 

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1on the part of an infected man or woman with a male partner.
2    "Intimate contact with another" means the exposure of the
3body of one person to a bodily fluid of another person in a
4manner that could result in the transmission of HIV.
5    "Intravenous or intramuscular drug paraphernalia" means
6any equipment, product, or material of any kind which is
7peculiar to and marketed for use in injecting a substance into
8the human body.
9    (c) Nothing in this Section shall be construed to require
10that an infection with HIV has occurred in order for a person
11to have committed criminal transmission of HIV.
12    (d) It shall be an affirmative defense that the person
13exposed knew that the infected person was infected with HIV,
14knew that the action could result in infection with HIV, and
15consented to the action with that knowledge.
16    (d-5) A court, upon a finding of reasonable suspicion that
17an individual has committed the crime of criminal transmission
18of HIV, shall order the production of records of a person
19accused of the offense of criminal transmission of HIV or the
20attendance of a person with relevant knowledge thereof so long
21as the return of the records or attendance of the person
22pursuant to the subpoena is submitted initially to the court
23for an in camera inspection. Only upon a finding by the court
24that the records or proffered testimony are relevant to the
25pending offense, the information produced pursuant to the
26court's order shall be disclosed to the prosecuting entity and

 

 

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1admissible if otherwise permitted by law.
2    (e) A person who commits criminal transmission of HIV
3commits a Class 2 felony.
4(Source: P.A. 96-1551, eff. 7-1-11.)
 
5    Section 99. Effective date. This Act takes effect upon
6becoming law.