HOUSE BILL No. 6243 July 3, 2002, Introduced by Rep. Meyer and referred to the Committee on Civil Law and the Judiciary. A bill to amend 1978 PA 368, entitled "Public health code," by amending section 5129 (MCL 333.5129), as amended by 1995 PA 253. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 5129. (1) An individual arrested and charged with vio- 2 lating section 448, 449, 449a, 450, 452, or 455 of the Michigan 3 penal code,Act No. 328 of the Public Acts of 1931, being sec-4tions 750.448, 750.449, 750.449a, 750.450, 750.452, and 750.4555of the Michigan Compiled Laws1931 PA 328, MCL 750.448, 750.449, 6 750.449A, 750.450, 750.452, AND 750.455, or a local ordinance 7 prohibiting prostitution or engaging or offering to engage the 8 services of a prostitute may, upon order of the court, be 9 examined or tested to determine whether the individual has 10 venereal disease, hepatitis B infection, HIV infection, or 07084'02 TVD 2 1 acquired immunodeficiency syndrome. Examination or test results 2 that indicate the presence of venereal disease, hepatitis B 3 infection, HIV infection, or acquired immunodeficiency syndrome 4 shall be reported to the defendant and, pursuant to sections 5114 5 and 5114a, to the department and the appropriate local health 6 department for partner notification. 7 (2) Except as otherwise provided in this section, if an 8 individual is arrested and charged with violating section 145a, 9 338, 338a, 338b, 448, 449, 449a, 450, 452, 455, 520b, 520c, 520d, 10 520e, or 520g of the Michigan penal code,Act No. 328 of the11Public Acts of 1931, being sections 750.145a, 750.338, 750.338a,12750.338b, 750.448, 750.449, 750.449a, 750.450, 750.452, 750.455,13750.520b, 750.520c, 750.520d, 750.520e, and 750.520g of the14Michigan Compiled Laws1931 PA 328, MCL 750.145A, 750.338, 15 750.338A, 750.338B, 750.448, 750.449, 750.449A, 750.450, 750.452, 16 750.455, 750.520B, 750.520C, 750.520D, 750.520E, AND 750.520G, or 17 section 7404 by intravenously using a controlled substance, or a 18 local ordinance prohibiting prostitution, solicitation, gross 19 indecency, or the intravenous use of a controlled substance, the 20 judge or magistrate responsible for setting the individual's con- 21 ditions of release pending trial shall distribute to the individ- 22 ual the information on venereal disease and HIV transmission 23 required to be distributed by county clerks under section 5119(1) 24 and shall recommend that the individual obtain additional infor- 25 mation and counseling at a local health department testing and 26 counseling center regarding venereal disease, hepatitis B 27 infection, HIV infection, and acquired immunodeficiency 07084'02 3 1 syndrome. Counseling under this subsection shall be voluntary on 2 the part of the individual. 3 (3) If a defendant is bound over to circuit court or 4 recorder's court for a violation of section 145a, 338, 338a, 5 338b, 450, 452, 455, 520b, 520c, 520d, 520e, or 520g ofAct6No. 328 of the Public Acts of 1931THE MICHIGAN PENAL CODE, 1931 7 PA 328, MCL 750.145A, 750.338, 750.338A, 750.338B, 750.450, 8 750.452, 750.455, 750.520B, 750.520C, 750.520D, 750.520E, AND 9 750.520G, and the district court determines there is reason to 10 believe the violation involved sexual penetration or exposure to 11 a body fluid of the defendant, the district court shall order the 12 defendant to be examined or tested for venereal disease and 13 hepatitis B infection and for the presence of HIV or an antibody 14 to HIV. Except as provided in subsection (5), (6), or (7), or as 15 otherwise provided by law, the examinations and tests shall be 16 confidentially administered by a licensed physician, the depart- 17 ment of public health, or a local health department. The court 18 also shall order the defendant to receive counseling regarding 19 venereal disease, hepatitis B infection, HIV infection, and 20 acquired immunodeficiency syndrome including, at a minimum, 21 information regarding treatment, transmission, and protective 22 measures. 23 (4) Except as otherwise provided in this section, upon con- 24 viction of a defendant or the issuance by the probate court of an 25 order adjudicating a child to be within the provisions of 26 section 2(a)(1) of chapter XIIA ofAct No. 288 of the Public27Acts of 1939, being section 712A.2 of the Michigan Compiled Laws07084'02 4 1 THE PROBATE CODE OF 1939, 1939 PA 288, MCL 712A.2, for violating 2 section 145a, 338, 338a, 338b, 448, 449, 449a, 450, 452, 455, 3 520b, 520c, 520d, 520e, or 520g ofAct No. 328 of the Public4Acts of 1931, being sections 750.145a, 750.338, 750.338a,5750.338b, 750.448, 750.449, 750.449a, 750.450, 750.452, 750.455,6750.520b, 750.520c, 750.520d, 750.520e, and 750.520g of the7Michigan Compiled LawsTHE MICHIGAN PENAL CODE, 1931 PA 328, 8 MCL 750.145A, 750.338, 750.338A, 750.338B, 750.448, 750.449, 9 750.449A, 750.450, 750.452, 750.455, 750.520B, 750.520C, 10 750.520D, 750.520E, AND 750.520G, or section 7404 by intrave- 11 nously using a controlled substance, or a local ordinance prohib- 12 iting prostitution, solicitation, gross indecency, or the intra- 13 venous use of a controlled substance, the court having jurisdic- 14 tion of the criminal prosecution or juvenile hearing shall order 15 the defendant or child to be examined or tested for venereal dis- 16 ease and hepatitis B infection and for the presence of HIV or an 17 antibody to HIV. Except as provided in subsection (5), (6), or 18 (7), or as otherwise provided by law, the examinations and tests 19 shall be confidentially administered by a licensed physician, the 20 department of public health, or a local health department. The 21 court also shall order the defendant or child to receive counsel- 22 ing regarding venereal disease, hepatitis B infection, HIV infec- 23 tion, and acquired immunodeficiency syndrome including, at a min- 24 imum, information regarding treatment, transmission, and protec- 25 tive measures. 26 (5) If the victim or person with whom the defendant or child 27 found to be within the provisions of section 2(a)(1) of chapter 07084'02 5 1 XIIA ofAct No. 288 of the Public Acts of 1939THE PROBATE CODE 2 OF 1939, 1939 PA 288, MCL 712A.2, engaged in sexual penetration 3 or sexual contact or who was exposed to a body fluid during the 4 course of the crime consents, the court or probate court shall 5 provide the person or agency conducting the examinations or 6 administering the tests under subsection (3) or (4) with the 7 name, address, and telephone number of the victim or person with 8 whom the defendant or child engaged in sexual penetration or 9 sexual contact or who was exposed to a body fluid of the 10 defendant during the course of the crime. If the victim or 11 person with whom the defendant or child engaged in sexual pene- 12 tration during the course of the crime is a minor or otherwise 13 incapacitated, the victim's or person's parent, guardian, or 14 person in loco parentis may give consent for purposes of this 15 subsection. After the defendant or child is examined or tested 16 as to the presence of venereal disease, of hepatitis B infection, 17 or of HIV or an antibody to HIV, the person or agency conducting 18 the examinations or administering the tests shall immediately 19 provide the examination or test results to the victim or person 20 with whom the defendant or child found to be within the provi- 21 sions of section 2(a)(1) of chapter XIIA ofAct No. 288 of the22Public Acts of 1939THE PROBATE CODE OF 1939, 1939 PA 288, 23 MCL 712A.2, engaged in sexual penetration or sexual contact or 24 who was exposed to a body fluid during the course of the crime, 25 and shall refer the victim or other person for appropriate 26 counseling. 07084'02 6 1 (6) The examination or test results and any other medical 2 information obtained from the defendant or child found to be 3 within the provisions of section 2(a)(1) of chapter XIIA ofAct4No. 288 of the Public Acts of 1939THE PROBATE CODE OF 1939, 5 1939 PA 288, MCL 712A.2, by the person or agency conducting the 6 examinations or administering the tests under subsection (3) or 7 (4) shall be transmitted to the court or probate court and, after 8 the defendant or child is sentenced or an order of disposition is 9 entered, made part of the court record, but are confidential and 10 shall be disclosed only to 1 or more of the following: 11 (a) The defendant or child. 12 (b) The local health department. 13 (c) The department. 14 (d) The victim or other person required to be informed of 15 the results under this subsection or subsection (5) or, if the 16 victim or other person is a minor or otherwise incapacitated, to 17 the victim's or other person's parent, guardian, or person in 18 loco parentis. 19 (e) Upon written authorization of the defendant or child 20 found to be within the provisions of section 2(a)(1) of chapter 21 XIIA ofAct No. 288 of the Public Acts of 1939THE PROBATE CODE 22 OF 1939, 1939 PA 288, MCL 712A.2, or the child's parent, guardi- 23 an, or person in loco parentis. 24 (f) As otherwise provided by law. 25 (7) If the defendant is placed in the custody of the depart- 26 ment of corrections, the court shall transmit a copy of the 27 defendant's examination and test results and other medical 07084'02 7 1 information to the department of corrections. If the child found 2 to be within the provisions of section 2(a)(1) of chapter XIIA of 3Act No. 288 of the Public Acts of 1939THE PROBATE CODE OF 4 1939, 1939 PA 288, MCL 712A.2, is placed by the probate court in 5 the custody of a person related to the child or a public or pri- 6 vate agency, institution, or facility, the probate court shall 7 transmit a copy of the child's examination or test results to the 8 person related to the child or the director of the agency, insti- 9 tution, or facility. A person or agency that discloses informa- 10 tion in compliance with this subsection or subsection (6) is not 11 civilly or criminally liable for making the disclosure. A person 12 or agency that receives test results or other medical information 13 pertaining to HIV infection or acquired immunodeficiency syndrome 14 under this subsection or subsection (6) is subject to 15 section 5131 and shall not disclose the test results or other 16 medical information except as specifically permitted under that 17 section. 18 (8) If an individual receives counseling or is examined or 19 tested under this section and is found to be infected with a 20 venereal disease or hepatitis B or to be HIV infected, the indi- 21 vidual shall be referred by the agency providing the counseling 22 or testing for appropriate medical care. The department, the 23 local health department, or any other agency providing counseling 24 or testing under this section is not financially responsible for 25 medical care received by an individual as a result of a referral 26 made under this subsection. 07084'02 8 1 (9) The requirements for the distribution of information 2 concerning venereal disease, counseling concerning venereal 3 disease, and examining or testing for venereal disease under 4 subsections (2), (3), and (4) do not apply to an individual 5 charged with or convicted of violating section 7404 by intrave- 6 nously using a controlled substance or violating a local ordi- 7 nance prohibiting the intravenous use of a controlled substance. 8 (10) THE COURT MAY, UPON CONVICTION, ORDER AN INDIVIDUAL WHO 9 IS EXAMINED OR TESTED UNDER THIS SECTION TO PAY THE ACTUAL AND 10 REASONABLE COSTS OF THAT EXAMINATION OR TEST. 11 (11) AN INDIVIDUAL WHO IS ORDERED TO PAY THE COSTS OF AN 12 EXAMINATION OR TEST UNDER SUBSECTION (10) SHALL PAY THOSE COSTS 13 WITHIN 30 DAYS AFTER THE ORDER ISSUED OR AS OTHERWISE PROVIDED BY 14 THE COURT. AN INDIVIDUAL WHO FAILS TO PAY THE COSTS WITHIN THE 15 30-DAY PERIOD OR AS OTHERWISE ORDERED BY THE COURT IS GUILTY OF A 16 MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 90 DAYS 17 OR A FINE OF NOT MORE THAN $100.00, OR BOTH. 18 (12)(10)As used in this section: 19 (a) "Sexual contact" includes the intentional touching of 20 the victim's or actor's intimate parts or the intentional touch- 21 ing of the clothing covering the immediate area of the victim's 22 or actor's intimate parts, if that intentional touching can rea- 23 sonably be construed as being for the purpose of sexual arousal 24 or gratification. 25 (b) "Sexual penetration" means sexual intercourse, cunnilin- 26 gus, fellatio, anal intercourse, or any other intrusion, however 27 slight, of any part of a person's body or of any object into the 07084'02 9 1 genital or anal openings of another person's body, but emission 2 of semen is not required. 3 (c) "Victim" includes, but is not limited to, a person sub- 4 jected to criminal sexual conduct in violation of section 520b, 5 520c, 520d, 520e, or 520g of the Michigan penal code,Act6No. 328 of the Public Acts of 1931, being sections 750.520b,7750.520c, 750.520d, 750.520e, and 750.520g of the Michigan8Compiled Laws1931 PA 328, MCL 750.520B, 750.520C, 750.520D, 9 750.520E, AND 750.520G. 07084'02 Final page. 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