Aids Transmitting Crimes; Requiring Defendant to Submit to Hiv Test; Report of Results

  1. Law
  2. Georgia Code
  3. Criminal Procedure
  4. Sentence and Punishment
  5. Procedure for Sentencing and Imposition of Punishment
  6. Aids Transmitting Crimes; Requiring Defendant to Submit to Hiv Test; Report of Results

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  1. Any term used in this Code section and defined in Code Section 31-22-9.1 shall have the meaning provided for such term in Code Section 31-22-9.1.
  2. A victim or the parent or legal guardian of a minor or incompetent victim of a sexual offense as defined in Code Section 31-22-9.1 or other crime which involves significant exposure as defined by subsection (f) of this Code section may request that the agency responsible for prosecuting the alleged offense request that the person arrested for such offense submit to a test for the human immunodeficiency virus and consent to the release of the test results to the victim. If the person so arrested declines to submit to such a test, the judge of the superior court in which the criminal charge is pending, upon a showing of probable cause that the person arrested for the offense committed the alleged crime and that significant exposure occurred, may order the test to be performed in compliance with the rules adopted by the Department of Public Health. The cost of the test shall be borne by the victim or by the arrested person, in the discretion of the court.
  3. Upon a verdict or plea of guilty or a plea of nolo contendere to any AIDS transmitting crime, the court in which that verdict is returned or plea entered shall require the defendant in such case to submit to an HIV test within 45 days following the date of such verdict or plea.
  4. Any person required under this Code section to submit to the HIV test who fails or refuses to submit to the test shall be subject to such measures deemed necessary by the court in which the order was entered, verdict was returned, or plea was entered to require involuntary submission to the HIV test, and submission thereto may also be made a condition of suspending or probating any part of that person's sentence for the AIDS transmitting crime.
  5. If a person is required by this Code section to submit to an HIV test and is thereby determined to be infected with HIV, that determination and the name of the person shall be reported to:
    1. The Department of Public Health, which shall disclose the name of the person as necessary to provide counseling to each victim of that person's AIDS transmitting crime if that crime is other than one specified in subparagraph (a)(3)(J) of Code Section 31-22-9.1 or to any parent or guardian of any such victim who is a minor or incompetent person;
    2. The court which ordered the HIV test, which court shall make that report a part of that person's criminal record. That report shall be sealed by the court; and
    3. The officer in charge of any penal institution or other facility in which the person has been confined by order or sentence of the court for purposes of enabling that officer to confine the person separately from those not infected with HIV.
  6. For the purpose of subsection (b) of this Code section, "significant exposure" means contact of the victim's ruptured or broken skin or mucous membranes with the blood or body fluids of the person arrested for such offense, other than tears, saliva, or perspiration, of a magnitude that the Centers for Disease Control and Prevention have epidemiologically demonstrated can result in transmission of the human immunodeficiency virus.
  7. The state may not use the fact that a medical procedure or test was performed on a person under this Code section or use the results of the procedure or test in any criminal proceeding arising out of the alleged offense.

(Code 1981, §17-10-15, enacted by Ga. L. 1988, p. 1799, § 4; Ga. L. 1991, p. 974, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2012, p. 775, § 17/HB 942; Ga. L. 2020, p. 55, § 2/SB 372.)

The 2020 amendment, effective July 1, 2020, substituted "subsection (f)" for "subsection (g)" in the first sentence of subsection (b); deleted the former second sentence of subsection (c) which read: "The clerk of the court in such case shall mail, within three days following the date of that verdict or plea, a copy of that verdict or plea to the Department of Public Health."; deleted former subsection (d), which read: "The Department of Public Health, within 30 days following receipt of the court's order under subsection (b) of this Code section or within 30 days following receipt of the copy of the verdict or plea under subsection (c) of this Code section, shall arrange for the HIV test for the person required to submit thereto."; redesignated former subsections (e) through (h) as present subsections (d) through (g), respectively; and deleted "arranged pursuant to subsection (d) of this Code section" following "to the test" near the beginning of subsection (d).

Cross references.

- Child committing delinquent act constituting AIDS transmission crime including testing and reporting, § 15-11-603.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, a comma was deleted following "this Code section" in the first sentence of subsection (b).

Editor's notes.

- Ga. L. 1988, p. 1799, § 1, not codified by the General Assembly, provides: "The General Assembly finds that Acquired Immunodeficiency Syndrome (AIDS) and its causative agent, including Human Immunodeficiency Virus (HIV), pose a grave threat to the health, safety, and welfare of the people of this state. In the absence of any effective vaccination or treatment for this disease, it threatens almost certain death to all who contract it. The disease is largely transmitted through sexual contacts and intravenous drug use, not through casual contact, and, while deadly, is therefore preventable. The key component of the fight against AIDS is education. Through public education and counseling our citizens can learn how the disease is transmitted and, thus, how to protect themselves and prevent its spread. The Department of Human Resources is encouraged to continue its efforts to educate all Georgians about the disease, its causative agent, and its means of transmission. In addition, voluntary testing should be encouraged for anyone who feels at risk of infection. While education, counseling, and voluntary testing are vital to the elimination of this epidemic, other measures are needed to protect the health of our citizens, and it is the intention of the General Assembly to enact such measures in the exercise of its police powers in order to deal with AIDS and HIV infection."

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 49 (1992).

JUDICIAL DECISIONS

Subsection (b) constitutional.

- O.C.G.A. § 17-10-15(b) does not violate the Fourth Amendment because the government's interest outweighs the individual's and because the results are kept confidential and cannot be used against the individual in a criminal prosecution; nor does § 17-10-15(b) violate the right to privacy under the due process clause of the Fourteenth Amendment or the state or federal equal protection clauses. Adams v. State, 269 Ga. 405, 498 S.E.2d 268 (1998).

RESEARCH REFERENCES

ALR.

- Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.

Validity and propriety under circumstances of court-ordered HIV testing, 87 A.L.R.5th 631.


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