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Judges' Fact Sheet - Court Ordered HIV Testing of Defendants

As of November 1, 2007, New York State Criminal Procedure Law Section 210.16 will require testing of criminal defendants, indicted for certain sex offenses, for human immunodeficiency virus (HIV), upon the request of the victim/survivor.

This law also amends New York State Public Health Law (subdivision 1 of section 2805-i) by adding a new paragraph that specifies that health care facilities providing treatment to victims/survivors of a sexual offense must:

  1. offer and make available "appropriate HIV post-exposure treatment therapies in cases where it has been determined, in accordance with guidelines issued by the commissioner, that a significant exposure to HIV has occurred," and
  2. inform the victim/survivor that "payment assistance for such therapies may be available from the New York State Crime Victims Board pursuant to the provisions of article twenty-two of the executive law."

The New York State Department of Health has been requested to provide guidance for the following scenarios.

  1. The court must order HIV-related testing of the defendant when the result would provide medical or psychological benefit to the victim/survivor.
    • Medical and Psychological Benefit Guidance for Defendant Testing, NYS DOH AIDS Institute, (10/07) can be found at www.hivguidelines.org.
    • This guidance also addresses what type of test should be ordered and whether follow-up testing would be medically appropriate.
  2. The court should designate a county public health officer to conduct the test.
    • For test site locations:
    • The county public health officials will be responsible for the following:
      • Responsibilities to the Victim/Survivor: Before requesting the court order, discuss the pros and cons of obtaining the defendant's HIV status. Notify victim/survivor of defendant test results. Tell victim/survivor to call healthcare provider, share results of testing, and determine how to proceed with post-exposure prophylaxis.
      • Responsibilities to the Court: Notify court in writing that the test was performed and that the results were shared with the victim/survivor. The note to the court shall not disclose the results of HIV testing.
  3. The court's order shall direct compliance with and conform to Public Health Law Article 27-F for disclosure and re-disclosure of defendant's HIV test results.

Criminal Procedure Law § 210.16(7)(a)(ii) states the test results shall be disclosed to the person making the application and further disclosure shall be permitted only to the victim/survivor, the victim/survivor's immediate family, guardian, physicians, attorneys, medical or mental health providers, and to his or her past and future contacts for whom there was or is a reasonable risk of HIV transmission and shall not be permitted to any other person or the court.

Consistent with the provisions of Public Health Law Article 27-F, the court order should specifically prohibit redisclosure by such persons to any other persons.

Please contact Lyn Stevens, NP, MS, ACRN, Deputy Director, Office of the Medical Director, NYS DOH AIDS Institute at (518) 473-8815 or lcs02@health.state.ny.us for any questions regarding medical guidance.

<* Please also see PHL § 2785-a regarding testing upon conviction.