Senate Bill No. 599
(By Senators Oliverio and Prezioso)
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[Introduced February 17, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §16-3C-10, relating
to the criminalization of reckless transfer of the human
immunodeficiency virus (HIV) or the acquired immunodeficiency
syndrome (AIDS); providing a felony criminal penalty; and
providing an affirmative defense to a charge of reckless
transfer and privacy protections for victims.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §16-3C-10, to read as
follows:
ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS
CONFIDENTIALITY ACT.
§16-3C-10. Reckless transfer of the acquired immunodeficiency
syndrome or the human immunodeficiency virus; felony criminal offense and penalty; evidence of
knowledge; affirmative defense; and charging
document.
(a) As used in this section, unless the context otherwise
requires:
(1) "Body fluid" means semen, irrespective of the presence of
spermatozoa, blood or vaginal secretion.
(2) "Transfer" means to:
(i) Engage in sexual activity by genital-genital contact,
oral-genital contact, anal-genital contact;
(ii) Permit the reuse of a hypodermic syringe, needle or
similar device without sterilization; or
(iii) Donate blood, blood products, other body fluids or any
body organ.
(b) A person who, knowing that person is or has been afflicted
with acquired immunodeficiency syndrome ("AIDS"), or infected with
the human immunodeficiency virus ("HIV"), recklessly transfers any
of that person's bodily fluid to another person is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not more than ten years. Evidence that
the person had knowledge of his or her infection status, without
additional evidence, is not sufficient to prove reckless intent.
(c) It is an affirmative defense to a prosecution under this
section that if the transfer was by sexual activity, the sexual activity took place between consenting adults after full disclosure
of the risk of such activity and with the use of an appropriate
prophylactic device.
(d) When alleging a violation of subdivision (b):
(1) The prosecuting attorney or grand jury shall substitute a
pseudonym for the true name of the victim involved. The actual
name and other identifying characteristics of the victim shall be
revealed to the court only in camera, and the court shall seal that
information from further revelation, except to defense counsel as
part of discovery.
(2) All court decisions, orders, petitions and other
documents, including motions and papers filed by the parties, shall
be worded so as to protect the name or other identifying
characteristics of the victim from public revelation.
(3) Unless the victim requests otherwise, a court in which a
violation of this section is filed shall, at the first opportunity,
issue an order that the parties, their counsel and other agents,
court staff, and all other persons subject to the jurisdiction of
the court shall make no public revelation of the name or any other
identifying characteristics of the victim.
NOTE: The purpose of this bill is to impose felony criminal
penalties upon persons who recklessly transfer the human
immunodeficiency virus ("HIV") or the acquired immunodeficiency
syndrome ("AIDS") to another uninfected person. Under this bill,
an HIV-positive or AIDS-positive individual is guilty of a felony,
punishable by imprisonment for up to ten years, if such individual recklessly transfers body fluids to another uninfected individual
with knowledge of his or her infection. It also provides that an
individual who recklessly transfers either virus is not guilty of
a felony if the transfer occurred through sexual activity between
consenting adults, the risk of the activity was fully disclosed by
the defendant, and the parties used an appropriate prophylactic
device.
§16-3C-10 is new; therefore, strike-throughs and underscoring
have been omitted.