HIV/AIDS Testing of Offenders
Virginia

• Any person charged with (i) any crime involving sexual assault (including rape, sexual battery, aggravated sexual battery, forcible sodomy, etc.); (ii) any offense against children as prohibited by § 18.2-361 (crimes against nature), § 18.2-366 (incest), § 18.2-370 (indecent liberties with children), and § 18.2-370.1 (indecent liberties with child by person in custodial or supervisory relationship); or (iii) any assault and battery, and where the complaining witness was exposed to body fluids of the person so charged in a manner that may, according to the then-current guidelines of the Centers for Disease Control and Prevention, transmit a sexually transmitted infection.

• As soon as possible following arrest and at any point following indictment, arrest by warrant, or service of a petition in the case of a juvenile of any of the crimes described above, the attorney for the Commonwealth may request after consultation with a complaining witness, or will request upon the request of the complaining witness, and the court will order the defendant to submit to diagnostic testing for sexually transmitted infections.

• The court will order the defendant to submit to diagnostic testing for sexually transmitted infections within 48 hours of the request for testing and any follow-up testing as may be medically appropriate. Any test conducted following indictment, arrest by warrant, or service of a petition will be in addition to such tests as may have been conducted following the arrest.

• If after a court order, the defendant refuses to submit to testing or the competency of the person to consent to testing is at issue, the court with jurisdiction of the case will hold a hearing to determine whether there is probable cause that the complaining witness was exposed to body fluids of the defendant in a manner that may, according to the then-current guidelines of the Centers for Disease Control and Prevention, transmit a sexually transmitted infection. If the court finds probable cause, the court will order the accused to undergo testing for sexually transmitted infections. The court may enter such an order in the absence of the defendant if the defendant is represented at the hearing by counsel or a guardian ad litem. The court's finding will be without prejudice to either the Commonwealth or the defendant and shall not be evidence in any proceeding, civil or criminal. At any hearing before the court, the defendant or his counsel may appear.
• Any person who is subject to a testing order may appeal the order of the general district court to the circuit court of the same jurisdiction within 10 days of receiving notice of the order. Any hearing conducted pursuant to this subsection will be held in camera as soon as practicable. The record will be sealed. The order of the circuit court shall be final and nonappealable.
• Confirmatory tests will be conducted before any test result is determined to be positive.

• The results of the tests are confidential, but the entity that performed the test will disclose the results to any victim. Va. Code Ann. §§ 18.2-61.1; 32.1-127.1:03(D)(28). The Department of Health will conduct surveillance and investigation in accordance with § 32.1-39.

• The entity that performed the test will offer appropriate counseling to the victim.

• In July 2021, Virginia repealed its statutory provisions that required HIV-specific testing for individuals charged with certain sex offenses.
• Virginia replaced those provisions with a broader testing requirement (Va. Code 18.2-61.1), which requires and/or authorizes testing for a wider range of sexually transmitted infections (including HIV) after consultation with or upon request of a complaining witness in relation to specified criminal offenses. This statute became effective on July 1, 2023.
• The cost of such tests will be paid by the Commonwealth and taxed as part of the cost of such criminal proceedings

Va. Code Ann. §§ 18.2-61.1, 18.2-361, 18.2-366, 18.2-370, 18.2-370.1, 32.1-127.1:03, 32.1-39