Requirement of HIV related testing in certain cases

§ 210.16 Requirement of HIV related testing in certain cases.

* 1. (a) In a case where an indictment or a superior court information
has been filed with a superior court which charges the defendant with a
felony offense enumerated in any section of article one hundred thirty
of the penal law where an act of "sexual intercourse", "oral sexual
conduct" or "anal sexual conduct," as those terms are defined in section
130.00 of the penal law, is required as an essential element for the
commission thereof, the court shall, upon a request of the victim within
six months of the date of the crimes charged, order that the defendant
submit to human immunodeficiency virus (HIV) related testing. Testing of
a defendant shall be ordered when the result would provide medical
benefit to the victim or a psychological benefit to the victim. Medical
benefit shall be found when the following elements are satisfied: (i) a
decision is pending about beginning, continuing, or discontinuing a
medical intervention for the victim; and (ii) the result of an HIV test
of the accused could affect that decision, and could provide relevant
information beyond that which would be provided by an HIV test of the
victim. If testing the defendant would provide medical benefit to the
victim or a psychological benefit to the victim, then the testing is to
be conducted by a state, county, or local public health officer
designated by the order. Test results, which shall not be disclosed to
the court, shall be communicated to the defendant and the victim named
in the order in accordance with the provisions of section twenty-seven
hundred eighty-five-a of the public health law.

(b) For the purposes of this section, the terms "victim" and
"applicant" mean the person with whom the defendant is charged to have
engaged in an act of "sexual intercourse", "oral sexual conduct" or
"anal sexual conduct", as those terms are defined in section 130.00 of
the penal law, where such conduct with such victim was the basis for
charging the defendant with an offense specified in paragraph (a) of
this subdivision.

* NB Effective until September 1, 2024

* 1. (a) In a case where an indictment or a superior court information
has been filed with a superior court which charges the defendant with a
felony offense enumerated in any section of article one hundred thirty
of the penal law where an act of "vaginal sexual contact", "oral sexual
contact" or "anal sexual contact," as those terms are defined in section
130.00 of the penal law, is required as an essential element for the
commission thereof, the court shall, upon a request of the victim within
six months of the date of the crimes charged, order that the defendant
submit to human immunodeficiency virus (HIV) related testing. Testing of
a defendant shall be ordered when the result would provide medical
benefit to the victim or a psychological benefit to the victim. Medical
benefit shall be found when the following elements are satisfied: (i) a
decision is pending about beginning, continuing, or discontinuing a
medical intervention for the victim; and (ii) the result of an HIV test
of the accused could affect that decision, and could provide relevant
information beyond that which would be provided by an HIV test of the
victim. If testing the defendant would provide medical benefit to the
victim or a psychological benefit to the victim, then the testing is to
be conducted by a state, county, or local public health officer
designated by the order. Test results, which shall not be disclosed to
the court, shall be communicated to the defendant and the victim named
in the order in accordance with the provisions of section twenty-seven
hundred eighty-five-a of the public health law.

(b) For the purposes of this section, the terms "victim" and
"applicant" mean the person with whom the defendant is charged to have
engaged in an act of "vaginal sexual contact", "oral sexual contact" or
"anal sexual contact", as those terms are defined in section 130.00 of
the penal law, where such conduct with such victim was the basis for
charging the defendant with an offense specified in paragraph (a) of
this subdivision.

* NB Effective September 1, 2024

2. Any request made by the victim pursuant to this section must be in
writing, filed with the court within six months of the date of the
crimes charged, and provided by the court to the defendant or his or her
counsel. The request must be filed with the court prior to or within
forty-eight hours after the indictment or superior court information has
been filed with the superior court; provided however that, for good
cause shown, the court may permit such request to be filed at a later
stage of the action within six months of the date of the crimes charged.

3. At any stage in the action within six months of the date of the
crimes charged, prior to the final disposition of the indictment or
superior court information and while the defendant is charged with an
offense specified in paragraph (a) of subdivision one of this section,
the victim may request that the defendant submit to a follow-up HIV
related test. Such request must be in writing, filed with the court and
provided by the court to the defendant or his or her counsel. Upon a
finding that the follow-up HIV related test is medically appropriate the
court must order that the defendant submit to such test. The court shall
not make such finding of medical appropriateness unless the follow-up
HIV related test is to be administered a sufficient time after the
charged offense to be consistent with guidelines that may be issued by
the commissioner of health. There shall be no more than one follow-up
HIV related test absent a showing of extraordinary circumstances.

4. Any requests, related papers and orders made or filed pursuant to
this section, together with any papers or proceedings related thereto,
shall be sealed by the court and not made available for any purpose,
except as may be necessary for the conduct of judicial proceedings
directly related to the provisions of this section. All proceedings on
such requests shall be held in camera.

5. The application for an order to compel a defendant to undergo an
HIV related test may be made by the victim but, if the victim is an
infant or incompetent person, the application may also be made by a
representative as defined in section twelve hundred one of the civil
practice law and rules. The application must state that: (a) the
applicant was the victim of the offense enumerated in paragraph (a) of
subdivision one of this section of which the defendant is charged; and
(b) the applicant has been offered pre-HIV test counseling and post-HIV
test counseling by a public health officer in accordance with article
twenty-seven-F of the public health law and has been advised, in
accordance with any guidelines that may be issued by the commissioner of
health, of (i) the limitations on the information to be obtained through
an HIV test on the proposed subject; (ii) current scientific assessments
of the risk of transmission of HIV from the exposure he or she may have
experienced; and (iii) the need for the applicant to undergo HIV related
testing to definitively determine his or her HIV status.

6. The court shall conduct a hearing only if necessary to determine if
the applicant is the victim of the offense of which the defendant is
charged or to determine whether a follow-up test is medically
appropriate. The court ordered test must be performed within forty-eight
hours of the date on which the court ordered the test, provided,
however, that whenever the defendant is not tested within the period
prescribed by the court, the court must again order that the defendant
undergo an HIV related test. The defendant shall be advised of
information as to HIV testing and medical treatment in accordance with
any guidelines that may be issued by the commissioner of health.

7. (a) Test results shall be disclosed subject to the following
limitations, which shall be specified in any order issued pursuant to
this section:

(i) disclosure of confidential HIV related information shall be
limited to that information which is necessary to fulfill the purpose
for which the order is granted; and

(ii) disclosure of confidential HIV related information shall be made
to the defendant upon his or her request, and disclosure to a person
other than the defendant shall be limited to the person making the
application; redisclosure shall be permitted only to the victim, the
victim's immediate family, guardian, physicians, attorneys, medical or
mental health providers and to his or her past and future contacts to
whom there was or is a reasonable risk of HIV transmission and shall not
be permitted to any other person or the court.

(b) Unless inconsistent with this section, the court's order shall
direct compliance with and conform to the provisions of article
twenty-seven-F of the public health law. Such order shall include
measures to protect against disclosure to others of the identity and HIV
status of the applicant and of the person tested and may include such
other measures as the court deems necessary to protect confidential
information.

8. Any failure to comply with the provisions of this section or
section twenty-seven hundred eighty-five-a of the public health law
shall not impair or affect the validity of any proceeding upon the
indictment or superior court information.

9. No information obtained as a result of a consent, hearing or court
order for testing issued pursuant to this section nor any information
derived therefrom may be used as evidence in any criminal or civil
proceeding against the defendant which relates to events that were the
basis for charging the defendant with an offense enumerated in paragraph
(a) of subdivision one of this section, provided however that nothing in
this section shall prevent prosecution of a witness testifying in any
court hearing held pursuant to this section for perjury pursuant to
article two hundred ten of the penal law.