Florida Senate - 2021                                    SB 1618
       
       
        
       By Senator Pizzo
       
       
       
       
       
       38-01596A-21                                          20211618__
    1                        A bill to be entitled                      
    2         An act relating to the HIV Prevention Justice Act;
    3         providing a short title; amending s. 381.0041, F.S.;
    4         reducing the degree of criminal penalty for certain
    5         persons who are infected with human immunodeficiency
    6         virus (HIV) and who donate blood, plasma, organs,
    7         skin, or other human tissue for use in another person;
    8         providing an exception; amending s. 384.23, F.S.;
    9         defining the terms “sexual conduct” and “substantial
   10         risk of transmission”; amending s. 384.24, F.S.;
   11         revising prohibitions relating to the intentional
   12         transmission of certain diseases through sexual
   13         conduct; providing exceptions; defining the term
   14         “behavioral recommendations”; providing that a
   15         person’s failure to comply with behavioral
   16         recommendations does not de facto establish intent to
   17         transmit a disease; amending s. 384.34, F.S.; revising
   18         penalties to conform to changes made by the act;
   19         amending s. 775.0877, F.S.; revising requirements for
   20         HIV testing in cases involving criminal transmission
   21         of HIV; conforming provisions to changes made by the
   22         act; amending s. 921.0022, F.S.; conforming a
   23         provision to changes made by the act; amending s.
   24         960.003, F.S.; conforming cross-references; providing
   25         an effective date.
   26          
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. This act may be cited as the “HIV Prevention
   30  Justice Act.”
   31         Section 2. Paragraph (b) of subsection (11) of section
   32  381.0041, Florida Statutes, is amended to read:
   33         381.0041 Donation and transfer of human tissue; testing
   34  requirements.—
   35         (11)
   36         (b) Except when the donation is deemed medically
   37  appropriate by a licensed physician, any person who has human
   38  immunodeficiency virus infection, who knows he or she is
   39  infected with human immunodeficiency virus, and who has been
   40  informed that he or she may communicate this disease by donating
   41  blood, plasma, organs, skin, or other human tissue who donates
   42  blood, plasma, organs, skin, or other human tissue for use in
   43  another person commits a misdemeanor of the first degree is
   44  guilty of a felony of the third degree, punishable as provided
   45  in s. 775.082 or, s. 775.083, or s. 775.084.
   46         Section 3. Section 384.23, Florida Statutes, is amended to
   47  read:
   48         384.23 Definitions.—As used in this chapter, the term:
   49         (2)(1) “Department” means the Department of Health.
   50         (1)(2) “County health department” means agencies and
   51  entities as designated in chapter 154.
   52         (3) “Sexual conduct” means conduct between persons,
   53  regardless of gender, which is capable of transmitting a
   54  sexually transmissible disease, including, but not limited to,
   55  contact between a:
   56         (a)Penis and a vulva or an anus; or
   57         (b)Mouth and a penis, a vulva, or an anus.
   58         (4) “Sexually transmissible disease” means a bacterial,
   59  viral, fungal, or parasitic disease determined by rule of the
   60  department to be sexually transmissible, to be a threat to the
   61  public health and welfare, and to be a disease for which a
   62  legitimate public interest will be served by providing for
   63  prevention, elimination, control, and treatment. The department
   64  must, by rule, determine which diseases are to be designated as
   65  sexually transmissible diseases and shall consider the
   66  recommendations and classifications of the Centers for Disease
   67  Control and Prevention and other nationally recognized medical
   68  authorities in that determination. Not all diseases that are
   69  sexually transmissible need be designated for the purposes of
   70  this act.
   71         (5) “Substantial risk of transmission” means a reasonable
   72  probability of disease transmission as proven by competent
   73  medical evidence.
   74         Section 4. Section 384.24, Florida Statutes, is amended to
   75  read:
   76         384.24 Unlawful acts.—
   77         (1) It is unlawful for any person who has chancroid,
   78  gonorrhea, granuloma inguinale, lymphogranuloma venereum,
   79  genital herpes simplex, chlamydia, nongonococcal urethritis
   80  (NGU), pelvic inflammatory disease (PID)/acute salpingitis, or
   81  syphilis, or human immunodeficiency virus, when such person
   82  knows he or she is infected with one or more of these diseases
   83  and when such person has been informed that he or she may
   84  communicate this disease to another person through sexual
   85  conduct intercourse, to act with the intent to transmit the
   86  disease, to engage in have sexual conduct that poses a
   87  substantial risk of transmission to another person when the
   88  intercourse with any other person is unaware that the person is
   89  a carrier of the disease, and to transmit the disease to the,
   90  unless such other person has been informed of the presence of
   91  the sexually transmissible disease and has consented to the
   92  sexual intercourse.
   93         (2) A person does not act with the intent required under
   94  subsection (1) if he or she in good faith complies with a
   95  treatment regimen prescribed by his or her health care provider
   96  or with the behavioral recommendations of his or her health care
   97  provider or public health officials to limit the risk of
   98  transmission, or if he or she offers to comply with such
   99  behavioral recommendations but such offer is rejected by the
  100  other person with whom he or she is engaging in sexual conduct.
  101  For purposes of this subsection, the term “behavioral
  102  recommendations” includes, but is not limited to, the use of a
  103  prophylactic device to limit the risk of transmission of the
  104  disease. Evidence of the person’s failure to comply with such a
  105  treatment regimen or such behavioral recommendations is not, in
  106  and of itself, sufficient to establish that he or she acted with
  107  the intent required under subsection (1) It is unlawful for any
  108  person who has human immunodeficiency virus infection, when such
  109  person knows he or she is infected with this disease and when
  110  such person has been informed that he or she may communicate
  111  this disease to another person through sexual intercourse, to
  112  have sexual intercourse with any other person, unless such other
  113  person has been informed of the presence of the sexually
  114  transmissible disease and has consented to the sexual
  115  intercourse.
  116         Section 5. Subsections (1), (2), (4), (5), and (6) of
  117  section 384.34, Florida Statutes, are amended to read:
  118         384.34 Penalties.—
  119         (1) Any person who violates s. 384.24 the provisions of s.
  120  384.24(1) commits a misdemeanor of the first degree, punishable
  121  as provided in s. 775.082 or s. 775.083.
  122         (2) Any person who violates the provisions of s. 384.26 or
  123  s. 384.29 commits a misdemeanor of the first degree, punishable
  124  as provided in s. 775.082 or s. 775.083.
  125         (4) Any person who violates the provisions of the
  126  department’s rules pertaining to sexually transmissible diseases
  127  may be punished by a fine not to exceed $500 for each violation.
  128  Any penalties enforced under this subsection shall be in
  129  addition to other penalties provided by this chapter. The
  130  department may enforce this section and adopt rules necessary to
  131  administer this section.
  132         (5) Any person who violates s. 384.24(2) commits a felony
  133  of the third degree, punishable as provided in s. 775.082, s.
  134  775.083, or s. 775.084. Any person who commits multiple
  135  violations of s. 384.24(2) commits a felony of the first degree,
  136  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  137         (6) Any person who obtains information that identifies an
  138  individual who has a sexually transmissible disease, who knew or
  139  should have known the nature of the information, and
  140  maliciously, or for monetary gain, disseminates this information
  141  or otherwise makes this information known to any other person,
  142  except by providing it either to a physician or nurse employed
  143  by the Department of Health or to a law enforcement agency,
  144  commits a felony of the third degree, punishable as provided in
  145  s. 775.082, s. 775.083, or s. 775.084.
  146         Section 6. Subsections (1), (3), and (6) of section
  147  775.0877, Florida Statutes, are amended to read:
  148         775.0877 Criminal transmission of HIV; procedures;
  149  penalties.—
  150         (1) In any case in which a person has been convicted of or
  151  has pled nolo contendere or guilty to, regardless of whether
  152  adjudication is withheld, any of the following offenses, or the
  153  attempt thereof, which offense or attempted offense involves the
  154  transmission of body fluids, with the exception of saliva, from
  155  one person to another:
  156         (a) Section 794.011, relating to sexual battery;
  157         (b) Section 826.04, relating to incest;
  158         (c) Section 800.04, relating to lewd or lascivious offenses
  159  committed upon or in the presence of persons less than 16 years
  160  of age;
  161         (d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d),
  162  relating to assault;
  163         (e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b),
  164  relating to aggravated assault;
  165         (f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c),
  166  relating to battery;
  167         (g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a),
  168  relating to aggravated battery;
  169         (h) Section 827.03(2)(c), relating to child abuse;
  170         (i) Section 827.03(2)(a), relating to aggravated child
  171  abuse;
  172         (j) Section 825.102(1), relating to abuse of an elderly
  173  person or disabled adult;
  174         (k) Section 825.102(2), relating to aggravated abuse of an
  175  elderly person or disabled adult;
  176         (l) Section 827.071, relating to sexual performance by
  177  person less than 18 years of age;
  178         (m) Sections 796.07 and 796.08, relating to prostitution;
  179         (n) Section 381.0041(11)(b), relating to donation of blood,
  180  plasma, organs, skin, or other human tissue; or
  181         (n)(o) Sections 787.06(3)(b), (d), (f), and (g), relating
  182  to human trafficking,
  183  
  184  the court shall order the offender to undergo HIV testing, to be
  185  performed under the direction of the Department of Health in
  186  accordance with s. 381.004, unless the offender has undergone
  187  HIV testing voluntarily or pursuant to procedures established in
  188  s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or
  189  rule providing for HIV testing of criminal offenders or inmates,
  190  subsequent to her or his arrest for an offense enumerated in
  191  paragraphs (a)-(m) (a)-(n) for which she or he was convicted or
  192  to which she or he pled nolo contendere or guilty. The results
  193  of an HIV test performed on an offender pursuant to this
  194  subsection are not admissible in any criminal proceeding arising
  195  out of the alleged offense.
  196         (3) An offender who has undergone HIV testing pursuant to
  197  subsection (1), and to whom positive test results have been
  198  disclosed pursuant to subsection (2), who commits a second or
  199  subsequent offense enumerated in paragraphs (1)(a)-(m) (1)(a)
  200  (n), commits criminal transmission of HIV, a misdemeanor of the
  201  first felony of the third degree, punishable as provided in s.
  202  775.082 or, s. 775.083, or s. 775.084. A person may be convicted
  203  and sentenced separately for a violation of this subsection and
  204  for the underlying crime enumerated in paragraphs (1)(a)-(m)
  205  (1)(a)-(n).
  206         (6) For an alleged violation of any offense enumerated in
  207  paragraphs (1)(a)-(m) (1)(a)-(n) for which the consent of the
  208  victim may be raised as a defense in a criminal prosecution, it
  209  is an affirmative defense to a charge of violating this section
  210  that the person exposed knew that the offender was infected with
  211  HIV, knew that the action being taken could result in
  212  transmission of the HIV infection, and consented to the action
  213  voluntarily with that knowledge.
  214         Section 7. Paragraph (e) of subsection (3) of section
  215  921.0022, Florida Statutes, is amended to read:
  216         921.0022 Criminal Punishment Code; offense severity ranking
  217  chart.—
  218         (3) OFFENSE SEVERITY RANKING CHART
  219         (e) LEVEL 5
  220  
  221  FloridaStatute             FelonyDegree        Description        
  222  316.027(2)(a)                  3rd     Accidents involving personal injuries other than serious bodily injury, failure to stop; leaving scene.
  223  316.1935(4)(a)                 2nd     Aggravated fleeing or eluding.
  224  316.80(2)                      2nd     Unlawful conveyance of fuel; obtaining fuel fraudulently.
  225  322.34(6)                      3rd     Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
  226  327.30(5)                      3rd     Vessel accidents involving personal injury; leaving scene.
  227  379.365(2)(c)1.                3rd     Violation of rules relating to: willful molestation of stone crab traps, lines, or buoys; illegal bartering, trading, or sale, conspiring or aiding in such barter, trade, or sale, or supplying, agreeing to supply, aiding in supplying, or giving away stone crab trap tags or certificates; making, altering, forging, counterfeiting, or reproducing stone crab trap tags; possession of forged, counterfeit, or imitation stone crab trap tags; and engaging in the commercial harvest of stone crabs while license is suspended or revoked.
  228  379.367(4)                     3rd     Willful molestation of a commercial harvester’s spiny lobster trap, line, or buoy.
  229  379.407(5)(b)3.                3rd     Possession of 100 or more undersized spiny lobsters.
  230  381.0041(11)(b)                3rd     Donate blood, plasma, or organs knowing HIV positive.
  231  440.10(1)(g)                   2nd     Failure to obtain workers’ compensation coverage.
  232  440.105(5)                     2nd     Unlawful solicitation for the purpose of making workers’ compensation claims.
  233  440.381(2)                     3rd     Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
  234  624.401(4)(b)2.                2nd     Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
  235  626.902(1)(c)                  2nd     Representing an unauthorized insurer; repeat offender.
  236  790.01(2)                      3rd     Carrying a concealed firearm.
  237  790.162                        2nd     Threat to throw or discharge destructive device.
  238  790.163(1)                     2nd     False report of bomb, explosive, weapon of mass destruction, or use of firearms in violent manner.
  239  790.221(1)                     2nd     Possession of short-barreled shotgun or machine gun.
  240  790.23                         2nd     Felons in possession of firearms, ammunition, or electronic weapons or devices.
  241  796.05(1)                      2nd     Live on earnings of a prostitute; 1st offense.
  242  800.04(6)(c)                   3rd     Lewd or lascivious conduct; offender less than 18 years of age.
  243  800.04(7)(b)                   2nd     Lewd or lascivious exhibition; offender 18 years of age or older.
  244  806.111(1)                     3rd     Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
  245  812.0145(2)(b)                 2nd     Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
  246  812.015(8)(a) & (c)-(e)        3rd     Retail theft; property stolen is valued at $750 or more and one or more specified acts.
  247  812.019(1)                     2nd     Stolen property; dealing in or trafficking in.
  248  812.131(2)(b)                  3rd     Robbery by sudden snatching.
  249  812.16(2)                      3rd     Owning, operating, or conducting a chop shop.
  250  817.034(4)(a)2.                2nd     Communications fraud, value $20,000 to $50,000.
  251  817.234(11)(b)                 2nd     Insurance fraud; property value $20,000 or more but less than $100,000.
  252  817.2341(1),(2)(a) & (3)(a)    3rd     Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity.
  253  817.568(2)(b)                  2nd     Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more persons.
  254  817.611(2)(a)                  2nd     Traffic in or possess 5 to 14 counterfeit credit cards or related documents.
  255  817.625(2)(b)                  2nd     Second or subsequent fraudulent use of scanning device, skimming device, or reencoder.
  256  825.1025(4)                    3rd     Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
  257  827.071(4)                     2nd     Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
  258  827.071(5)                     3rd     Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child.
  259  828.12(2)                      3rd     Tortures any animal with intent to inflict intense pain, serious physical injury, or death.
  260  839.13(2)(b)                   2nd     Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
  261  843.01                         3rd     Resist officer with violence to person; resist arrest with violence.
  262  847.0135(5)(b)                 2nd     Lewd or lascivious exhibition using computer; offender 18 years or older.
  263  847.0137(2) & (3)              3rd     Transmission of pornography by electronic device or equipment.
  264  847.0138(2) & (3)              3rd     Transmission of material harmful to minors to a minor by electronic device or equipment.
  265  874.05(1)(b)                   2nd     Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
  266  874.05(2)(a)                   2nd     Encouraging or recruiting person under 13 years of age to join a criminal gang.
  267  893.13(1)(a)1.                 2nd     Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)5. drugs).
  268  893.13(1)(c)2.                 2nd     Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
  269  893.13(1)(d)1.                 1st     Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)5. drugs) within 1,000 feet of university.
  270  893.13(1)(e)2.                 2nd     Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) within 1,000 feet of property used for religious services or a specified business site.
  271  893.13(1)(f)1.                 1st     Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)5. drugs) within 1,000 feet of public housing facility.
  272  893.13(4)(b)                   2nd     Use or hire of minor; deliver to minor other controlled substance.
  273  893.1351(1)                    3rd     Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
  274  
  275         Section 8. Paragraphs (a) and (b) of subsection (2) and
  276  paragraph (a) of subsection (3) of section 960.003, Florida
  277  Statutes, are amended to read:
  278         960.003 Hepatitis and HIV testing for persons charged with
  279  or alleged by petition for delinquency to have committed certain
  280  offenses; disclosure of results to victims.—
  281         (2) TESTING OF PERSON CHARGED WITH OR ALLEGED BY PETITION
  282  FOR DELINQUENCY TO HAVE COMMITTED CERTAIN OFFENSES.—
  283         (a) In any case in which a person has been charged by
  284  information or indictment with or alleged by petition for
  285  delinquency to have committed any offense enumerated in s.
  286  775.0877(1)(a)-(m) s. 775.0877(1)(a)-(n), which involves the
  287  transmission of body fluids from one person to another, upon
  288  request of the victim or the victim’s legal guardian, or of the
  289  parent or legal guardian of the victim if the victim is a minor,
  290  the court shall order such person to undergo hepatitis and HIV
  291  testing within 48 hours after the information, indictment, or
  292  petition for delinquency is filed. In the event the victim or,
  293  if the victim is a minor, the victim’s parent or legal guardian
  294  requests hepatitis and HIV testing after 48 hours have elapsed
  295  from the filing of the indictment, information, or petition for
  296  delinquency, the testing shall be done within 48 hours after the
  297  request.
  298         (b) However, when a victim of any sexual offense enumerated
  299  in s. 775.0877(1)(a)-(m) s. 775.0877(1)(a)-(n) is under the age
  300  of 18 at the time the offense was committed or when a victim of
  301  any sexual offense enumerated in s. 775.0877(1)(a)-(m) s.
  302  775.0877(1)(a)-(n) or s. 825.1025 is a disabled adult or elderly
  303  person as defined in s. 825.1025 regardless of whether the
  304  offense involves the transmission of bodily fluids from one
  305  person to another, then upon the request of the victim or the
  306  victim’s legal guardian, or of the parent or legal guardian, the
  307  court shall order such person to undergo hepatitis and HIV
  308  testing within 48 hours after the information, indictment, or
  309  petition for delinquency is filed. In the event the victim or,
  310  if the victim is a minor, the victim’s parent or legal guardian
  311  requests hepatitis and HIV testing after 48 hours have elapsed
  312  from the filing of the indictment, information, or petition for
  313  delinquency, the testing shall be done within 48 hours after the
  314  request. The testing shall be performed under the direction of
  315  the Department of Health in accordance with s. 381.004. The
  316  results of a hepatitis and HIV test performed on a defendant or
  317  juvenile offender pursuant to this subsection shall not be
  318  admissible in any criminal or juvenile proceeding arising out of
  319  the alleged offense.
  320         (3) DISCLOSURE OF RESULTS.—
  321         (a) The results of the test shall be disclosed no later
  322  than 2 weeks after the court receives such results, under the
  323  direction of the Department of Health, to the person charged
  324  with or alleged by petition for delinquency to have committed or
  325  to the person convicted of or adjudicated delinquent for any
  326  offense enumerated in s. 775.0877(1)(a)-(m) s. 775.0877(1)(a)
  327  (n), which involves the transmission of body fluids from one
  328  person to another, and, upon request, to the victim or the
  329  victim’s legal guardian, or the parent or legal guardian of the
  330  victim if the victim is a minor, and to public health agencies
  331  pursuant to s. 775.0877. If the alleged offender is a juvenile,
  332  the test results shall also be disclosed to the parent or
  333  guardian. When the victim is a victim as described in paragraph
  334  (2)(b), the test results must also be disclosed no later than 2
  335  weeks after the court receives such results, to the person
  336  charged with or alleged by petition for delinquency to have
  337  committed or to the person convicted of or adjudicated
  338  delinquent for any offense enumerated in s. 775.0877(1)(a)-(m)
  339  s. 775.0877(1)(a)-(n), or s. 825.1025 regardless of whether the
  340  offense involves the transmission of bodily fluids from one
  341  person to another, and, upon request, to the victim or the
  342  victim’s legal guardian, or the parent or legal guardian of the
  343  victim, and to public health agencies pursuant to s. 775.0877.
  344  Otherwise, hepatitis and HIV test results obtained pursuant to
  345  this section are confidential and exempt from the provisions of
  346  s. 119.07(1) and s. 24(a), Art. I of the State Constitution and
  347  shall not be disclosed to any other person except as expressly
  348  authorized by law or court order.
  349         Section 9. This act shall take effect July 1, 2021.