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 709B.
(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
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 641-71(709B).
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 test, if all of the following conditions are met:
a. The applicant 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
641-11.71 (709B) 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 coimseling by a victim counselor
or a person requested by the victim who is authorized to provide the counseling
required pursuant to Iowa Code section 141.22, regarding the nature,
reliability and significance of the HIV test and of any test results of the
convicted offender The coimselor shall have a certificate of attendance from
the department of public health-sponsored workshop on HIV serologic test
counseling.
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
coimsel for a convicted or alleged offender if the convicted or alleged
offender desires but is financially unable to employ counsel.
e. Furnish legal coimsel 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 these rules 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 imless 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 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, 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 offender who is
required to undergo an HIV 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.
