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Introduced Version Senate Bill 599 History

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SB599 intr
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.
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