                                 CODE OF VIRGINIA

TESTING OF CERTAIN PERSONS FOR SEXUALLY TRANSMITTED INFECTIONS (§ 18.2-61.1)

A. As soon as practicable following arrest, the attorney for the Commonwealth
may request after consultation with a complaining witness, or shall request upon
the request of the complaining witness, that any person charged with (i) any
crime involving sexual assault pursuant to this article; (ii) any offense
against children as prohibited by &#xA7;&#xA7; 18.2-361, 18.2-366, 18.2-370, and
18.2-370.1; 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, be requested to submit to
diagnostic testing for sexually transmitted infections and any follow-up testing
as may be medically appropriate. The person so charged shall be counseled about
the meaning of the tests and about the transmission, treatment, and prevention
of sexually transmitted infections.
			If the person so charged 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 shall hold a hearing in a manner as provided by &#xA7; 19.2-183, as soon as
practicable, to determine whether there is probable cause that the individual
has committed the crime with which he is charged and that 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. If the court finds
probable cause, the court shall order the person so charged to undergo testing
for sexually transmitted infections. The court may enter such an order in the
absence of the person so charged if the person so charged is represented at the
hearing by counsel or a guardian ad litem. The court&#8217;s finding shall be
without prejudice to either the Commonwealth or the person charged and shall not
be evidence in any proceeding, civil or criminal. At any hearing before the
court, the person so charged or his counsel may appear.

B. At any point following indictment, arrest by warrant, or service of a
petition in the case of a juvenile of any crime involving sexual assault
pursuant to this article or any offenses against children as prohibited by
&#xA7;&#xA7; 18.2-361, 18.2-366, 18.2-370, and 18.2-370.1, the attorney for the
Commonwealth may request after consultation with a complaining witness, or shall
request upon the request of the complaining witness, and the court shall order
the defendant to submit to diagnostic testing for sexually transmitted
infections within 48 hours and any follow-up testing as may be medically
appropriate. Any test conducted following indictment, arrest by warrant, or
service of a petition shall be in addition to such tests as may have been
conducted following arrest pursuant to subsection A.
			If 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 shall
hold a hearing, in a manner as provided by &#xA7; 19.2-183, 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 shall 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&#8217;s
finding shall 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.

C. 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 shall be held in camera as soon as practicable. The record shall be
sealed. The order of the circuit court shall be final and nonappealable.

D. Confirmatory tests shall be conducted before any test result shall be
determined to be positive. The results of the tests shall be confidential as
provided in &#xA7; 32.1-127.1:03; however, the entity that performed the test
shall also disclose the results to any victim and offer appropriate counseling.
The Department of Health shall conduct surveillance and investigation in
accordance with &#xA7; 32.1-39.

E. The results of such tests shall not be admissible as evidence in any criminal
proceeding. No specimen obtained pursuant to this section shall be tested for
any purpose other than for the purpose provided for in this section, nor shall
the specimen or the results of any testing pursuant to this section be used for
any purpose in any criminal matter or investigation. Any violation of this
subsection shall constitute reversible error in any criminal case in which the
specimen or results were used.

F. The cost of such tests shall be paid by the Commonwealth and taxed as part of
the cost of such criminal proceedings.

G. As used in this section, &#8220;sexually transmitted infections&#8221;
includes chlamydia, gonorrhea, syphilis, human immunodeficiency virus, hepatitis
B and C viruses, and any other sexually transmittable disease required to be
reported by the Board of Health pursuant to &#xA7; 32.1-35.

HISTORY: 2023, cc. 680, 681.