Current through Register Vol. 47, No. 6, September 18, 2024
(1) Unless a
petitioner chooses to be represented by private counsel, the county attorney
shall represent the victim's interest in all proceedings under Iowa Code
chapter 915.
(2) If a person is
convicted of sexual assault or adjudicated delinquent for an act of sexual
assault, the county attorney, if requested by the petitioner, shall petition
the court for an order requiring the convicted offender to submit to an
HIV-related test, provided that all of the following conditions are met:
a. The sexual assault for which the offender
was convicted or adjudicated delinquent included sufficient contact between the
victim and the convicted offender to be deemed a significant exposure pursuant
to
641-11.31
(915).
b. The authorized
representative of the petitioner, the county attorney, or the court sought to
obtain written informed consent to the testing from the convicted
offender.
c. Written informed
consent was not provided by the convicted offender.
(3) If a person is an alleged offender, the
county attorney, if requested by the victim, shall make application to the
court for the issuance of a search warrant, in accordance with Iowa Code
chapter 808, for the purpose of requiring the alleged offender to submit to an
HIV-related test, if all of the following conditions are met:
a. The application states that the victim
believes that the sexual assault for which the alleged offender is charged
included sufficient contact between the victim and the alleged offender to be
deemed a significant exposure pursuant to
641-11.31 (915) and
states the factual basis for the belief that a significant exposure
exists.
b. The authorized
representative of the victim, the county attorney, or the court sought to
obtain written informed consent to the testing from the alleged
offender.
c. Written informed
consent was not provided by the alleged offender.
(4) Upon receipt of the petition or
application, the court shall:
a. Prior to the
scheduling of a hearing, refer the victim for counseling by a victim counselor
or a person requested by the victim who is authorized to provide the counseling
regarding the nature, reliability and significance of the HIV-related test and
of any test results of the convicted or alleged offender.
b. Schedule a hearing to be held as soon as
is practicable.
c. Cause written
notice to be served on the convicted or alleged offender who is the subject of
the proceeding, in accordance with the Iowa Rules of Civil Procedure relating
to the service of original notice, or if the convicted or alleged offender is
represented by legal counsel, provide written notice to the convicted or
alleged offender and the convicted or alleged offender's legal
counsel.
d. Provide for the
appointment of legal counsel for a convicted or alleged offender if the
convicted or alleged offender desires but is financially unable to employ
counsel.
e. Furnish legal counsel
with copies of the petition or application, written informed consent, if
obtained, and copies of all other documents related to the petition or
application, including, but not limited to, the charges and orders.
(5) A hearing under this rule
shall be conducted in an informal manner consistent with orderly procedure and
in accordance with the Iowa Rules of Evidence.
a. The hearing shall be limited in scope to
the review of questions of fact only as to the issue of whether the sexual
assault for which the offender was convicted or adjudicated delinquent or for
which the alleged offender was charged provided sufficient contact between the
victim and the convicted or alleged offender to be deemed a significant
exposure, and to questions of law.
b. In determining whether the contact should
be deemed a significant exposure for a convicted offender, the court shall base
the determination on the testimony presented during the proceedings on the
sexual assault charge, the minutes of the testimony or other evidence included
in the court record, or if a plea of guilty was entered, based upon the
complaint or upon testimony provided during the hearing. In determining whether
the contact should be deemed a significant exposure for an alleged offender,
the court shall base the determination on the application and the factual basis
provided in the application for the belief of the applicant that a significant
exposure exists.
c. The victim may
testify at the hearing, but shall not be compelled to testify. The court shall
not consider the refusal of a victim to testify at the hearing as material to
the court's decision regarding issuance of an order or search warrant requiring
testing.
d. The hearing shall be in
camera unless the convicted or alleged offender and the petitioner or victim
agree to a hearing in open court and the court approves. The report of the
hearing proceedings shall be sealed and no report of the proceeding shall be
released to the public, except with the permission of all parties and the
approval of the court.
e.
Stenographic notes or electronic or mechanical recording shall be taken of all
court hearings unless waived by the parties.
(6) Following the hearing, the court shall
require a convicted or alleged offender to undergo an HIV-related test only if
the petitioner or victim proves all of the following by a preponderance of
evidence.
a. The sexual assault constituted a
significant exposure.
b. An
authorized representative of the petitioner or victim, the county attorney, or
the court sought to obtain written informed consent from the convicted or
alleged offender.
c. Written
informed consent was not provided by the convicted or alleged
offender.
(7) A
convicted or alleged offender who is required to undergo an HIV-related test
may appeal to the court for review of questions of law only, but may appeal
questions of fact if the findings of fact are clearly erroneous.
