N.Y. Family Court Act § 347.1: Required testing of the respondent in certain proceedings

§ 347.1. Required testing of the respondent in certain proceedings.

1. (a) In any proceeding where the respondent is found pursuant to

section 345.1 or 346.1 of this article, to have committed a felony

offense enumerated in any section of article one hundred thirty of the

penal law, or any subdivision of section 130.20 of such law, for which

an act of "vaginal sexual contact", "oral sexual contact" or "anal

sexual contact", as those terms are defined in section 130.00 of the

penal law, is required as an essential element for the commission

thereof, the court must, upon a request of the victim, order that the

respondent submit to human immunodeficiency (HIV) related testing. The

testing is to be conducted by a state, county, or local public health

officer designated by the order. Test results, which shall not be

disclosed to the court, shall be communicated to the respondent and the

victim named in the order in accordance with the provisions of section

twenty-seven hundred eighty-five-a of the public health law.

(b) For the purposes of this section, the term "victim" means the

person with whom the respondent engaged in an act of "vaginal sexual

contact", "oral sexual contact" or "anal sexual contact", as those terms

are defined in section 130.00 of the penal law, where such conduct with

such victim was the basis for the court's finding that the respondent

committed acts constituting one or more of the offenses specified in

paragraph (a) of this subdivision.

2. Any request made by the victim pursuant to this section must be in

writing, filed with the court and provided by the court to the defendant

and his or her counsel. The request must be filed with the court prior

to or within ten days after the filing of an order in accordance with

section 345.1 or 346.1 of this article, provided that, for good cause

shown, the court may permit such request to be filed at any time prior

to the entry of an order of disposition.

3. Any requests, related papers and orders made or filed pursuant to

this section, together with any papers or proceedings related thereto,

shall be sealed by the court and not made available for any purpose,

except as may be necessary for the conduct of judicial proceedings

directly related to the provisions of this section. All proceedings on

such requests shall be held in camera.

4. The application for an order to compel a respondent to undergo an

HIV related test may be made by the victim but, if the victim is an

infant or incompetent person, the application may also be made by a

representative as defined in section twelve hundred one of the civil

practice law and rules. The application must state that (a) the

applicant was the victim of the offense, enumerated in paragraph (a) of

subdivision one of this section, which the court found the defendant to

have committed; and (b) the applicant has been offered counseling by a

public health officer and been advised of (i) the limitations on the

information to be obtained through an HIV test on the proposed subject;

(ii) current scientific assessments of the risk of transmission of HIV

from the exposure he or she may have experienced; and (iii) the need for

the applicant to undergo HIV related testing to definitively determine

his or her HIV status.

5. The court shall conduct a hearing only if necessary to determine if

the applicant is the victim of the offense the respondent was found to

have committed. The court ordered test must be performed within fifteen

days of the date on which the court ordered the test, provided however

that whenever the respondent is not tested within the period prescribed

by the court, the court must again order that the respondent undergo an

HIV related test.

6. (a) Test results shall be disclosed subject to the following

limitations, which shall be specified in any order issued pursuant to

this section:

(i) disclosure of confidential HIV related information shall be

limited to that information which is necessary to fulfill the purpose

for which the order is granted;

(ii) disclosure of confidential HIV related information shall be

limited to the person making the application; redisclosure shall be

permitted only to the victim, the victim's immediate family, guardian,

physicians, attorneys, medical or mental health providers and to his or

her past and future contacts to whom there was or is a reasonable risk

of HIV transmission and shall not be permitted to any other person or

the court.

(b) Unless inconsistent with this section, the court's order shall

direct compliance with and conform to the provisions of article

twenty-seven-F of the public health law. Such order shall include

measures to protect against disclosure to others of the identity and HIV

status of the applicant and of the person tested and may include such

other measures as the court deems necessary to protect confidential

information.

7. Any failure to comply with the provisions of this section or

section twenty-seven hundred eighty-five-a of the public health law

shall not impair the validity of any order of disposition entered by the

court.

8. No information obtained as a result of a consent, hearing or court

order for testing issued pursuant to this section nor any information

derived therefrom may be used as evidence in any criminal or civil

proceeding against the respondent which relates to events that were the

basis for the respondent's conviction, provided however that nothing

herein shall prevent prosecution of a witness testifying in any court

hearing held pursuant to this section for perjury pursuant to article

two hundred ten of the penal law.