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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to transmission and screening of HIV 2
and sexually transmissible diseases; amending s. 3
775.0877, F.S.; deleting offenses relating to 4
prostitution from the offenses under which certain 5
offenders must undergo HIV testing; reducing criminal 6
penalties for the commission of criminal transmission 7
of HIV; amending s. 796.08, F.S.; deleting 8
requirements relating to the screening, treatment, and 9
counseling for sexually transmissible diseases of 10
certain offenders; deleting criminal penalties for 11
related violations; making technical changes; amending 12
s. 960.003, F.S.; conforming cross -references; 13
amending ss. 98.0751 and 381.004, F.S.; conforming 14
provisions to changes made by the act; providing an 15
effective date. 16
17
Be It Enacted by the Legislature of the State of Florida: 18
19
Section 1. Subsections (1), (3), and (6) of section 20
775.0877, Florida Statutes, are amended to read: 21
775.0877 Criminal transmission of HIV; procedures; 22
penalties.— 23
(1) In any case in which a person has been convicted of or 24
has pled nolo contendere or guilty to, regardless of whether 25
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adjudication is withheld, any of the following offenses, or the 26
attempt thereof, which offense or atte mpted offense involves the 27
transmission of body fluids from one person to another: 28
(a) Section 794.011, relating to sexual battery; 29
(b) Section 826.04, relating to incest; 30
(c) Section 800.04, relating to lewd or lascivious 31
offenses committed upon or in the presence of persons less than 32
16 years of age; 33
(d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d), 34
relating to assault; 35
(e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b), 36
relating to aggravated assault; 37
(f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c), 38
relating to battery; 39
(g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a), 40
relating to aggravated battery; 41
(h) Section 827.03(2)(c), relating to child abuse; 42
(i) Section 827.03(2)(a), relating to aggravated child 43
abuse; 44
(j) Section 825.102(1), relating to abuse of an elderly 45
person or disabled adult; 46
(k) Section 825.102(2), relating to aggravated abuse of an 47
elderly person or disabled adult; 48
(l) Section 827.071, relating to sexual performance by 49
person less than 18 years of age; 50
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(m) Sections 796.07 and 796.08, relating to prostitution; 51
(m)(n) Section 381.0041(11)(b), relating to donation of 52
blood, plasma, organs, skin, or other human tissue; or 53
(n)(o) Sections 787.06(3)(b), (d), (f), and (g), relating 54
to human trafficking, 55
56
the court shall order the offender to undergo HIV testing, to be 57
performed under the direction of the Department of Health in 58
accordance with s. 381.004, unless the offender has undergone 59
HIV testing voluntarily or pursuant to procedures establishe d in 60
s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or 61
rule providing for HIV testing of criminal offenders or inmates, 62
subsequent to her or his arrest for an offense enumerated in 63
paragraphs (a)-(m) (a)-(n) for which she or he was convicted or 64
to which she or he pled nolo contendere or guilty. The results 65
of an HIV test performed on an offender pursuant to this 66
subsection are not admissible in any criminal proceeding arising 67
out of the alleged offense. 68
(3) An offender who has undergone HIV testing pursuant to 69
subsection (1), and to whom positive test results have been 70
disclosed pursuant to subsection (2), who commits a second or 71
subsequent offense enumerated in paragraphs (1)(a)-(m) (1)(a)-72
(n), commits criminal transmission of HIV, a misdemeanor of the 73
first felony of the third degree, punishable as provided in s. 74
775.082 or, s. 775.083, or s. 775.084. A person may be convicted 75
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and sentenced separately for a violation of this subsection and 76
for the underlying crime enumerated in paragraphs (1)(a)-(m) 77
(1)(a)-(n). 78
(6) For an alleged violation of any offense enumerated in 79
paragraphs (1)(a)-(m) (1)(a)-(n) for which the consent of the 80
victim may be raised as a defense in a criminal prosecution, it 81
is an affirmative defense to a charge of violating this section 82
that the person exposed knew that the offender was infected with 83
HIV, knew that the action being t aken could result in 84
transmission of the HIV infection, and consented to the action 85
voluntarily with that knowledge. 86
Section 2. Section 796.08, Florida Statutes, is amended to 87
read: 88
796.08 Screening for HIV and sexually transmissible 89
diseases; providing penalties.— 90
(1)(a) As used in this section, the term For the purposes 91
of this section, "sexually transmissible disease" means a 92
bacterial, viral, fungal, or parasitic disease, determined by 93
rule of the Department of Health to be sexually transmissibl e, a 94
threat to the public health and welfare, and a disease for which 95
a legitimate public interest is served by providing for 96
regulation and treatment. 97
(b) In considering which diseases are designated as 98
sexually transmissible diseases, the Department of Health shall 99
consider such diseases as chancroid, gonorrhea, granuloma 100
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inguinale, lymphogranuloma venereum, genital herpes simplex, 101
chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory 102
disease (PID)/acute salpingitis, syphilis, and human 103
immunodeficiency virus infection for designation and shall 104
consider the recommendations and classifications of the Centers 105
for Disease Control and Prevention and other nationally 106
recognized authorities. Not all diseases that are sexually 107
transmissible need be des ignated for purposes of this section. 108
(2) A person arrested under s. 796.07 may request 109
screening for a sexually transmissible disease , including human 110
immunodeficiency virus, under direction of the Department of 111
Health and, if infected, shall submit to appropriate treatment 112
and counseling. A person who requests screening for a sexually 113
transmissible disease under this subsection must pay any costs 114
associated with such screening . 115
(3) A person convicted under s. 796.07 of prostitution or 116
procuring another to commit prostitution must undergo screening 117
for a sexually transmissible disease, including, but not limited 118
to, screening to detect exposure to the human immunodeficiency 119
virus, under direction of the Department of Health. If the 120
person is infected, h e or she must submit to treatment and 121
counseling prior to release from probation, community control, 122
or incarceration. Notwithstanding the provisions of s. 384.29, 123
the results of tests conducted pursuant to this subsection shall 124
be made available by the De partment of Health to the offender, 125
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medical personnel, appropriate state agencies, state attorneys, 126
and courts of appropriate jurisdiction in need of such 127
information in order to enforce the provisions of this chapter. 128
(4) A person who commits prostituti on or procures another 129
for prostitution and who, prior to the commission of such crime, 130
had tested positive for a sexually transmissible disease other 131
than human immunodeficiency virus infection and knew or had been 132
informed that he or she had tested posit ive for such sexually 133
transmissible disease and could possibly communicate such 134
disease to another person through sexual activity commits a 135
misdemeanor of the first degree, punishable as provided in s. 136
775.082 or s. 775.083. A person may be convicted and s entenced 137
separately for a violation of this subsection and for the 138
underlying crime of prostitution or procurement of prostitution. 139
(5) A person who: 140
(a) Commits or offers to commit prostitution; or 141
(b) Procures another for prostitution by engaging i n 142
sexual activity in a manner likely to transmit the human 143
immunodeficiency virus, 144
145
and who, prior to the commission of such crime, had tested 146
positive for human immunodeficiency virus and knew or had been 147
informed that he or she had tested positive for hu man 148
immunodeficiency virus and could possibly communicate such 149
disease to another person through sexual activity commits 150
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criminal transmission of HIV, a felony of the third degree, 151
punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 152
A person may be convicted and sentenced separately for a 153
violation of this subsection and for the underlying crime of 154
prostitution or procurement of prostitution. 155
Section 3. Paragraphs (a) and (b) of subsection (2) and 156
paragraph (a) of subsection (3) of section 960.003, Florida 157
Statutes, are amended to read: 158
960.003 Hepatitis and HIV testing for persons charged with 159
or alleged by petition for delinquency to have committed certain 160
offenses; disclosure of results to victims. — 161
(2) TESTING OF PERSON CHARGED WITH OR ALLEGED BY PETITION 162
FOR DELINQUENCY TO HAVE COMMITTED CERTAIN OFFENSES. — 163
(a) In any case in which a person has been charged by 164
information or indictment with or alleged by petition for 165
delinquency to have committed any offense enumerated in s. 166
775.0877(1)(a)-(m) s. 775.0877(1)(a)-(n), which involves the 167
transmission of body fluids from one person to another, upon 168
request of the victim or the victim's legal guardian, or of the 169
parent or legal guardian of the victim if the victim is a minor, 170
the court shall order such person to undergo hepatitis and HIV 171
testing within 48 hours after the information, indictment, or 172
petition for delinquency is filed. In the event the victim or, 173
if the victim is a minor, the victim's parent or legal guardian 174
requests hepatitis and HIV testing after 48 hours have elapsed 175
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from the filing of the indictment, information, or petition for 176
delinquency, the testing shall be done within 48 hours after the 177
request. 178
(b) However, when a victim of any sexual offense 179
enumerated in s. 775.0877(1)(a)-(m) s. 775.0877(1)(a)-(n) is 180
under the age of 18 at the time the offense was committed or 181
when a victim of any sexual offense enumerated in s. 182
775.0877(1)(a)-(m) s. 775.0877(1)(a)-(n) or s. 825.1025 is a 183
disabled adult or elderly person as defi ned in s. 825.1025 184
regardless of whether the offense involves the transmission of 185
bodily fluids from one person to another, then upon the request 186
of the victim or the victim's legal guardian, or of the parent 187
or legal guardian, the court shall order such p erson to undergo 188
hepatitis and HIV testing within 48 hours after the information, 189
indictment, or petition for delinquency is filed. In the event 190
the victim or, if the victim is a minor, the victim's parent or 191
legal guardian requests hepatitis and HIV testi ng after 48 hours 192
have elapsed from the filing of the indictment, information, or 193
petition for delinquency, the testing shall be done within 48 194
hours after the request. The testing shall be performed under 195
the direction of the Department of Health in accor dance with s. 196
381.004. The results of a hepatitis and HIV test performed on a 197
defendant or juvenile offender pursuant to this subsection shall 198
not be admissible in any criminal or juvenile proceeding arising 199
out of the alleged offense. 200
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(3) DISCLOSURE OF RESULTS.— 201
(a) The results of the test shall be disclosed no later 202
than 2 weeks after the court receives such results, under the 203
direction of the Department of Health, to the person charged 204
with or alleged by petition for delinquency to have committed or 205
to the person convicted of or adjudicated delinquent for any 206
offense enumerated in s. 775.0877(1)(a)-(m) s. 775.0877(1)(a)-207
(n), which involves the transmission of body fluids from one 208
person to another, and, upon request, to the victim or the 209
victim's legal guardian, or the parent or legal guardian of the 210
victim if the victim is a minor, and to public health agencies 211
pursuant to s. 775.0877. If the alleged offender is a juvenile, 212
the test results shall also be disclosed to the parent or 213
guardian. When the v ictim is a victim as described in paragraph 214
(2)(b), the test results must also be disclosed no later than 2 215
weeks after the court receives such results, to the person 216
charged with or alleged by petition for delinquency to have 217
committed or to the person co nvicted of or adjudicated 218
delinquent for any offense enumerated in s. 775.0877(1)(a)-(m) 219
s. 775.0877(1)(a)-(n), or s. 825.1025 regardless of whether the 220
offense involves the transmission of bodily fluids from one 221
person to another, and, upon request, to th e victim or the 222
victim's legal guardian, or the parent or legal guardian of the 223
victim, and to public health agencies pursuant to s. 775.0877. 224
Otherwise, hepatitis and HIV test results obtained pursuant to 225
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this section are confidential and exempt from the provisions of 226
s. 119.07(1) and s. 24(a), Art. I of the State Constitution and 227
shall not be disclosed to any other person except as expressly 228
authorized by law or court order. 229
Section 4. Paragraph (b) of subsection (2) of section 230
98.0751, Florida Statut es, is amended to read: 231
98.0751 Restoration of voting rights; termination of 232
ineligibility subsequent to a felony conviction. — 233
(2) For purposes of this section, the term: 234
(b) "Felony sexual offense" means any of the following: 235
1. Any felony offense that serves as a predicate to 236
registration as a sexual offender in accordance with s. 237
943.0435; 238
2. Section 491.0112; 239
3. Section 784.049(3)(b); 240
4. Section 794.08; 241
5. Section 796.08; 242
5.6. Section 800.101; 243
6.7. Section 826.04; 244
7.8. Section 847.012; 245
8.9. Section 872.06(2); 246
9.10. Section 944.35(3)(b)2.; 247
10.11. Section 951.221(1); or 248
11.12. Any similar offense committed in another 249
jurisdiction which would be an offense listed in this paragraph 250
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if it had been committed in violation of the la ws of this state. 251
Section 5. Paragraph (h) of subsection (2) of section 252
381.004, Florida Statutes, is amended to read: 253
381.004 HIV testing. — 254
(2) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED 255
CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY. — 256
(h) Paragraph (a) does not apply: 257
1. When testing for sexually transmissible diseases is 258
required by state or federal law, or by rule, including the 259
following situations: 260
a. HIV testing pursuant to s. 796.08 of persons convicted 261
of prostitution or of procuri ng another to commit prostitution . 262
b. HIV testing of inmates pursuant to s. 945.355 before 263
their release from prison by reason of parole, accumulation of 264
gain-time credits, or expiration of sentence. 265
c. Testing for HIV by a medical examiner in accordan ce 266
with s. 406.11. 267
d. HIV testing of pregnant women pursuant to s. 384.31. 268
2. To those exceptions provided for blood, plasma, organs, 269
skin, semen, or other human tissue pursuant to s. 381.0041. 270
3. For the performance of an HIV -related test by licensed 271
medical personnel in bona fide medical emergencies if the test 272
results are necessary for medical diagnostic purposes to provide 273
appropriate emergency care or treatment to the person being 274
tested and the patient is unable to consent, as supported by 275
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documentation in the medical record. Notification of test 276
results in accordance with paragraph (c) is required. 277
4. For the performance of an HIV -related test by licensed 278
medical personnel for medical di agnosis of acute illness where, 279
in the opinion of the attending physician, providing 280
notification would be detrimental to the patient, as supported 281
by documentation in the medical record, and the test results are 282
necessary for medical diagnostic purposes t o provide appropriate 283
care or treatment to the person being tested. Notification of 284
test results in accordance with paragraph (c) is required if it 285
would not be detrimental to the patient. This subparagraph does 286
not authorize the routine testing of patient s for HIV infection 287
without notification. 288
5. If HIV testing is performed as part of an autopsy for 289
which consent was obtained pursuant to s. 872.04. 290
6. For the performance of an HIV test upon a defendant 291
pursuant to the victim's request in a prosecutio n for any type 292
of sexual battery where a blood sample is taken from the 293
defendant voluntarily, pursuant to court order for any purpose, 294
or pursuant to s. 775.0877, s. 951.27, or s. 960.003; however, 295
the results of an HIV test performed shall be disclosed s olely 296
to the victim and the defendant, except as provided in ss. 297
775.0877, 951.27, and 960.003. 298
7. If an HIV test is mandated by court order. 299
8. For epidemiological research pursuant to s. 381.0031, 300
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for research consistent with institutional review boards created 301
by 45 C.F.R. part 46, or for the performance of an HIV -related 302
test for the purpose of research, if the testing is performed in 303
a manner by which the identity of the test subject is not known 304
and may not be retrieved by the researcher. 305
9. If human tissue is collected lawfully without the 306
consent of the donor for corneal removal as authorized by s. 307
765.5185 or enucleation of the eyes as authorized by s. 765.519. 308
10. For the performance of an HIV test upon an individual 309
who comes into conta ct with medical personnel in such a way that 310
a significant exposure has occurred during the course of 311
employment, within the scope of practice, or during the course 312
of providing emergency medical assistance to the individual. The 313
term "medical personnel" i ncludes a licensed or certified health 314
care professional; an employee of a health care professional or 315
health care facility; employees of a laboratory licensed under 316
chapter 483; personnel of a blood bank or plasma center; a 317
medical student or other studen t who is receiving training as a 318
health care professional at a health care facility; and a 319
paramedic or emergency medical technician certified by the 320
department to perform life -support procedures under s. 401.23. 321
a. The occurrence of a significant exposu re shall be 322
documented by medical personnel under the supervision of a 323
licensed physician and recorded only in the personnel record of 324
the medical personnel. 325
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b. Costs of an HIV test shall be borne by the medical 326
personnel or the employer of the medical p ersonnel. However, 327
costs of testing or treatment not directly related to the 328
initial HIV tests or costs of subsequent testing or treatment 329
may not be borne by the medical personnel or the employer of the 330
medical personnel. 331
c. In order to use the provisio ns of this subparagraph, 332
the medical personnel must be tested for HIV pursuant to this 333
section or provide the results of an HIV test taken within 6 334
months before the significant exposure if such test results are 335
negative. 336
d. A person who receives the res ults of an HIV test 337
pursuant to this subparagraph shall maintain the confidentiality 338
of the information received and of the persons tested. Such 339
confidential information is exempt from s. 119.07(1). 340
e. If the source of the exposure is not available and w ill 341
not voluntarily present himself or herself to a health facility 342
to be tested for HIV, the medical personnel or the employer of 343
such person acting on behalf of the employee may seek a court 344
order directing the source of the exposure to submit to HIV 345
testing. A sworn statement by a physician licensed under chapter 346
458 or chapter 459 that a significant exposure has occurred and 347
that, in the physician's medical judgment, testing is medically 348
necessary to determine the course of treatment constitutes 349
probable cause for the issuance of an order by the court. The 350
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results of the test shall be released to the source of the 351
exposure and to the person who experienced the exposure. 352
11. For the performance of an HIV test upon an individual 353
who comes into contact wi th nonmedical personnel in such a way 354
that a significant exposure has occurred while the nonmedical 355
personnel provides emergency medical assistance during a medical 356
emergency. For the purposes of this subparagraph, a medical 357
emergency means an emergency me dical condition outside of a 358
hospital or health care facility that provides physician care. 359
The test may be performed only during the course of treatment 360
for the medical emergency. 361
a. The occurrence of a significant exposure shall be 362
documented by medica l personnel under the supervision of a 363
licensed physician and recorded in the medical record of the 364
nonmedical personnel. 365
b. Costs of any HIV test shall be borne by the nonmedical 366
personnel or the employer of the nonmedical personnel. However, 367
costs of testing or treatment not directly related to the 368
initial HIV tests or costs of subsequent testing or treatment 369
may not be borne by the nonmedical personnel or the employer of 370
the nonmedical personnel. 371
c. In order to use the provisions of this subparagraph , 372
the nonmedical personnel shall be tested for HIV pursuant to 373
this section or shall provide the results of an HIV test taken 374
within 6 months before the significant exposure if such test 375
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results are negative. 376
d. A person who receives the results of an HI V test 377
pursuant to this subparagraph shall maintain the confidentiality 378
of the information received and of the persons tested. Such 379
confidential information is exempt from s. 119.07(1). 380
e. If the source of the exposure is not available and will 381
not voluntarily present himself or herself to a health facility 382
to be tested for HIV, the nonmedical personnel or the employer 383
of the nonmedical personnel acting on behalf of the employee may 384
seek a court order directing the source of the exposure to 385
submit to HIV testing. A sworn statement by a physician licensed 386
under chapter 458 or chapter 459 that a significant exposure has 387
occurred and that, in the physician's medical judgment, testing 388
is medically necessary to determine the course of treatment 389
constitutes probable cause for the issuance of an order by the 390
court. The results of the test shall be released to the source 391
of the exposure and to the person who experienced the exposure. 392
12. For the performance of an HIV test by the medical 393
examiner or attending phys ician upon an individual who expired 394
or could not be resuscitated while receiving emergency medical 395
assistance or care and who was the source of a significant 396
exposure to medical or nonmedical personnel providing such 397
assistance or care. 398
a. HIV testing may be conducted only after appropriate 399
medical personnel under the supervision of a licensed physician 400
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documents in the medical record of the medical personnel or 401
nonmedical personnel that there has been a significant exposure 402
and that, in accordance with the written protocols based on the 403
National Centers for Disease Control and Prevention guidelines 404
on HIV postexposure prophylaxis and in the physician's medical 405
judgment, the information is medically necessary to determine 406
the course of treatment for the m edical personnel or nonmedical 407
personnel. 408
b. Costs of an HIV test performed under this subparagraph 409
may not be charged to the deceased or to the family of the 410
deceased person. 411
c. For this subparagraph to be applicable, the medical 412
personnel or nonmedic al personnel must be tested for HIV under 413
this section or must provide the results of an HIV test taken 414
within 6 months before the significant exposure if such test 415
results are negative. 416
d. A person who receives the results of an HIV test 417
pursuant to this subparagraph shall comply with paragraph (e). 418
13. For the performance of an HIV -related test medically 419
indicated by licensed medical personnel for medical diagnosis of 420
a hospitalized infant as necessary to provide appropriate care 421
and treatment of the infant if, after a reasonable attempt, a 422
parent cannot be contacted to provide consent. The medical 423
records of the infant must reflect the reason consent of the 424
parent was not initially obtained. Test results shall be 425
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provided to the parent when the parent is located. 426
14. For the performance of HIV testing conducted to 427
monitor the clinical progress of a patient previously diagnosed 428
to be HIV positive. 429
15. For the performance of repeated HIV testing conducted 430
to monitor possible conversion from a signifi cant exposure. 431
Section 6. This act shall take effect July 1, 2022. 432