| Question |
Answer |
Which charges and/or criminal convictions trigger a sex offender being tested for HIV/AIDS? |
- Individuals charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation.
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Is testing required, and/or available upon victim request? |
- Testing is required upon court order.
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When does testing occur? |
- Upon being charged; and
- Upon conviction.
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What is the testing process? |
- Upon being charged, the court having jurisdiction of the criminal prosecution shall order testing.
- A convicted person shall be required to undergo HIV-related testing immediately upon conviction.
- Counseling must be provided.
- The court having jurisdiction of the criminal prosecution may not release the convicted person from custody and shall revoke any order admitting the defendant to bail until HIV-related testing and counseling have been performed and the result is known.
- If an HIV-related test required on persons convicted of sexual abuse, sexual assault, incest or sexual molestation results in a negative reaction, upon motion of the state, the court having jurisdiction over the criminal prosecution may require the subject of the test to submit to further HIV-related tests performed under the direction of the bureau in accordance with CDC guidelines.
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Who can see test results? |
- Test results are disclosed to (i) the victim (or the victim’s parent/legal guardian if the victim is a minor) at the request of the victim or victim’s parent/legal guardian and (ii) the offender.
- For charged individuals, the results are sent to the clerk of the court, with a copy to the prosecuting attorney and defendant’s counsel.
- Disclosure may also be made to persons who may have been exposed, such as spouses or sexual partners.
- The HIV-related test results obtained from the convicted person are to be transmitted to the court and, after the convicted person is sentenced, made part of the court record. If the convicted person is placed in the custody of the Division of Corrections, the court shall transmit a copy of the convicted person’s HIV-related test results to the Division of Corrections.
- The HIV-related test results shall be closed and confidential and disclosed only by the Division of Corrections in accordance with law.
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Are there related services for victims? |
- At the “earliest stage of the proceedings,” the prosecuting attorney must inform the victim (or the victim’s parent/guardian if the victim is a minor) of the availability of voluntary HIV testing and counseling.
- The victim who obtains an HIV-related test shall be provided with pre- and post-test counseling regarding the nature, reliability and significance of the HIV-related test and the confidential nature of the test.
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Anything else I should know? |
- The costs of mandated testing and counseling shall be paid by the individual to be tested or counseled or his or her medical insurance provider, if possible, and the defendant must then pay the victim restitution for such amounts.
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Statutory citation(s): |
- W. Va. Code §§ 16-3C-1 through 16-3C-3; WV ADC § 64-64-4; and
- See also the West Virginia Protocol for Responding to Victims of Sexual Assault: https://www.fris.org/SAKI/PDFs/Packets-Victim-Resources/Sexual%20Violence%20and%20Stalking%20Brochure-WVFRIS.pdf
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