Chapter 12 Testing Certain Offenders for HIV Under a provision enacted by the 101st Congress, each State must enact and enforce statutes which provide for the testing of certain convicted sex offenders for the human immunodeficiency virus (HIV) if the State is to continue to receive their full Byrne Formula Grant Program award. Guidance concerning this requirement was first issued by BJA in April 1992 and the penalty provision took effect beginning in FY 1994. This chapter essentially repeats that guidance within the context of administrative issues and BJA policies relevant to the implementation of this requirement. In recent years, a number of State legislatures have enacted statutes which require that persons convicted of certain sexual acts undergo HIV testing in order that their victims can know that they have not been exposed to the deadly virus, or if exposed, they can seek medical treatment and take steps to protect others from the further spread of the epidemic. However, the provisions of these statutes varied in form and detail. For example in some cases, the testing process was mandatory for all persons convicted of sexual abuse. In others, it was triggered only at the request of a victim. In some States, only the person convicted and the victim were entitled to the test results, while in others, spouses of the victim and the convicted defendant also received the findings. This requirement, which in effect establishes a set of essential elements which such legislation should encompass, not only promotes attention to this area, but encourages some consistency in the approaches of States. 12.1 The HIV Requirement In Section 1804 of the Act of 1990 (hereafter referred to as Section 1804), Congress amended Section 506 of the Act by adding a subsection (f), as follows: (f)(1) For any fiscal year beginning more than 2 years after the effective date of this subsection (A) 90 percent of the funds allocated under subsection (a), taking into consideration subsection (e) but without regard to this subsection, to a State described in paragraph (2) shall be distributed by the Director to such State; and (B) 10 percent of such amount shall be allocated equally among States that are not affected by the operation of subparagraph (A). (2) Paragraph (1)(A) refers to a State that does not have in effect, and does not enforce, in such fiscal year, a law that requires the State at the request of the victim of a sexual act (A) to administer, to the defendant convicted under State law of such sexual act, a test to detect in such defendant the presence of the etiologic agent for acquired immune deficiency syndrome; (B) to disclose the results of such test to such defendant and to the victim of such sexual act; and (C) to provide to the victim of such sexual act counseling regarding HIV disease, HIV testing, in accordance with applicable law, and referral for appropriate health care and support services. (3) For purposes of this subsection (A) the term "convicted'' includes adjudicated under juvenile proceedings; and (B) the term "sexual act'' has the meaning given such term in subparagraph (A) or (B) of section 2245(1) of title 18, United States Code. (Definition of Sexual act is found on page 25.) Section 1804 was codified as 42 U.S.C.  3756(f). The effective date for enactment was FY 1994. 12.2 The Financial Effect of Section 1804 Section 1804 requires that 10 percent of a State's formula grant be withheld if that State fails to place in effect, as well as actually enforce, the elements of the HIV testing standards created by Section 1804. The funds withheld from States which are not in compliance will be distributed to States which do comply. Any Federal funds which must be withheld from the States because of noncompliance with the Section 1804 mandate must be allocated equally among States which have complied. Thus in addition to qualifying for continued full formula grant funding under the Act, States which enact and enforce their own statutes meeting the Section 1804 standards, become eligible to share equally with other complying States in the accumulated monies withheld from States which have failed to comply. 12.3 The Section 1804 Standards State statutes and other formal provisions now in place or to be adopted must meet the minimum standards required by Section 1804. Of course, the States may enact and enforce broader requirements or standards. However, States should regard each element of the Section 1804 standards as being required for inclusion in their State statute in order to maintain their full funding. These elements are: 12.3a Victim Request The State statute must require that the State make mandatory the testing process at the request of any victim of a sexual act (as defined below) for which the person to be tested was convicted in State court. If the State statute requires all persons so convicted to be tested without exception (regardless of the absence of a victim request), then this element may be regarded as being met, since it is broader, or more inclusive in nature than Section 1804 requires. However, the requirement would not be met if the State statute would allow the person otherwise to be tested to avoid the testing process, even though the victim requested it. 12.3b Administration of the Test The State statute must provide for an agency of the State to direct the test to be administered, although the actual physical testing may be delegated to another, such as a physician, laboratory, etc. Typically, the State statute would provide for the sentencing judge to order the testing either before sentencing (perhaps as part of the order for a pre-sentence investigation) or as part of the sentencing order itself. The State statute must direct that the procedure itself specifically test for the presence of the etiologic agent for AIDS, or HIV. 12.3c The Person to be Tested Congress required in Section 1804 that the State statute must provide that any person "convicted under State law'' of a sexual act is obliged to be tested for AIDS or its HIV precursor at the victim's request. This includes persons entering pleas of guilty to a criminal sexual act (as hereafter defined), as well as those being found guilty following a jury trial or a trial to the court. It also includes juveniles thus adjudicated. 12.3d Disclosure of the Test Results The State statute must provide for the disclosure, at the request of the victim, of the test results to both the victim and the person convicted. Some States have chosen to provide the test results to others as well, such as the spouses of the victim and the defendant. 12.3e Victim Services Congress required in Section 1804 that the State statutes include a provision for making certain services available to the victims of these sexual acts at their request. These services are: Counseling regarding HIV disease. HIV testing in accordance with applicable law. Referral for appropriate health care and support services. If the language of a State statute does not incorporate the specific language of Section 1804, it must at least be so broad as to make it clear that these victims are entitled as a matter of right to request and receive the counseling, testing, and referral services specified by Congress. Section 1804 implies that these services are to be provided at the expense of State or local governments, rather than at the victim's expense. State Administrative Agencies (SAA's) responsible for administering the Byrne Formula Grant Program should be prepared to inform BJA as to the sources of the funds to pay for these services and the authority therefore. 12.3f Definition of the Term "Convicted'' as Including Juveniles In paragraph (3)(A) of Section 1804, Congress provided that "the term convicted' includes adjudicated under juvenile proceedings''. Thus, in order to be in compliance with Section 1804, State HIV testing statutes must provide that not only adult defendants convicted of defined sexual acts are required to be tested by the State at the request of the victim, but that juveniles similarly adjudicated are also required to be tested. 12.3g Definition of the Term "Sexual Act'' In paragraph (3)(B) of Section 1804, Congress defined the term "sexual act'' as the meaning given such term in 18 U.S.C.  2245(1)(A) or (B). Clearly Congress intended to define "sexual act'' as that meaning given the term in 18 U.S.C.  2245(2)(A) or (B), which provides: the term "sexual act'' means (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, [sic] slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; . . . . The language of the State HIV testing statute should, where possible, incorporate these definitions. However, since Section 1804 requires that the person tested must be "convicted under State law,'' if State statutory criminal law defines the term "sexual act'' in a less inclusive manner, this fact would not automatically mean that a State is in non-compliance, because it does not appear from the language of Section 1804 or its statutory history, that Congress intended to require States to change their definitions of substantive criminal acts in order to receive their full formula grant. 12.4 Procedures for BJA Clearance of HIV Laws 12.4a State Determination of Compliance with Section 1804 It is the responsibility of each SAA to conduct a review and comparison and to make a determination that State statutory law either is now in compliance or is not yet in compliance with the Section 1804 standards. For those States whose legislatures have not yet enacted a mandatory HIV testing statute for sex offenders, SAA legal advisors should review any bills which may be pending, making the same comparisons. Should it appear that a proposed bill does not include all elements of the Section 1804 standards, the SAA should make that fact known to the appropriate State legislative committees or individual legislators. Finally, for those States without any existing or proposed legislation complying with Section 1804, the SAA should make the appropriate legislative committees and/or legislators aware of the Section 1804 requirements. To assist the States in assessing the degree of their Section 1804 compliance, a worksheet is available from BJA. The worksheet provides a useful tool to assist the SAA in arriving at a determination as to Section 1804 compliance. A State should not request BJA review until after conducting its own study based on the information contained in these materials. Nor should a State request BJA review if it is apparent from a completed worksheet that it does not yet comply with all of the elements of the Section 1804 standards. 12.4b State Certification of Section 1804 Compliance States that are in compliance must complete, as part of their application for formula grant funds, the HIV Testing Requirement Certification found in Appendix B.