Florida Senate - 2022 SB 1074
By Senator Pizzo
38-00172-22 20221074__
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.
248 812.081(3) 2nd Trafficking in trade secrets.
249 812.131(2)(b) 3rd Robbery by sudden snatching.
250 812.16(2) 3rd Owning, operating, or conducting a chop shop.
251 817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
252 817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
253 817.2341(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.
254 817.568(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.
255 817.611(2)(a) 2nd Traffic in or possess 5 to 14 counterfeit credit cards or related documents.
256 817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device, skimming device, or reencoder.
257 825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
258 827.071(4) 2nd Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
259 827.071(5) 3rd Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child.
260 828.12(2) 3rd Tortures any animal with intent to inflict intense pain, serious physical injury, or death.
261 839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
262 843.01 3rd Resist officer with violence to person; resist arrest with violence.
263 847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older.
264 847.0137 (2) & (3) 3rd Transmission of pornography by electronic device or equipment.
265 847.0138 (2) & (3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
266 874.05(1)(b) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
267 874.05(2)(a) 2nd Encouraging or recruiting person under 13 years of age to join a criminal gang.
268 893.13(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).
269 893.13(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.
270 893.13(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.
271 893.13(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.
272 893.13(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.
273 893.13(4)(b) 2nd Use or hire of minor; deliver to minor other controlled substance.
274 893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
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, 2022.