Section 210.16. Requirement of HIV related testing in certain cases

1.  (a)  In a case where an indictment or a superior court information
  has been filed with a superior court which charges the defendant with  a
  felony  offense  enumerated in any section of article one hundred thirty
  of the penal law where an act  of  "sexual  intercourse",  "oral  sexual
  conduct" or "anal sexual conduct," as those terms are defined in section
  130.00  of  the  penal  law, is required as an essential element for the
  commission thereof, the court shall, upon a request of the victim within
  six months of the date of the crimes charged, order that  the  defendant
  submit to human immunodeficiency virus (HIV) related testing. Testing of
  a  defendant  shall  be  ordered  when  the result would provide medical
  benefit to the victim or a psychological benefit to the victim.  Medical
  benefit  shall be found when the following elements are satisfied: (i) a
  decision is pending about  beginning,  continuing,  or  discontinuing  a
  medical  intervention for the victim; and (ii) the result of an HIV test
  of the accused could affect that decision, and  could  provide  relevant
  information  beyond  that  which would be provided by an HIV test of the
  victim. If testing the defendant would provide medical  benefit  to  the
  victim  or a psychological benefit to the victim, then the testing is to
  be conducted  by  a  state,  county,  or  local  public  health  officer
  designated  by  the order. Test results, which shall not be disclosed to
  the court, shall be communicated to the defendant and the  victim  named
  in  the  order in accordance with the provisions of section twenty-seven
  hundred eighty-five-a of the public health law.
    (b)  For  the  purposes  of  this  section,  the  terms  "victim"  and
  "applicant"  mean  the person with whom the defendant is charged to have
  engaged in an act of "sexual  intercourse",  "oral  sexual  conduct"  or
  "anal  sexual  conduct", as those terms are defined in section 130.00 of
  the penal law, where such conduct with such victim  was  the  basis  for
  charging  the  defendant  with  an offense specified in paragraph (a) of
  this subdivision.
    2. Any request made by the victim pursuant to this section must be  in
  writing,  filed  with  the  court  within  six months of the date of the
  crimes charged, and provided by the court to the defendant or his or her
  counsel. The request must be filed with the court  prior  to  or  within
  forty-eight hours after the indictment or superior court information has
  been  filed  with  the  superior  court; provided however that, for good
  cause shown, the court may permit such request to be filed  at  a  later
  stage of the action within six months of the date of the crimes charged.
    3.  At  any  stage  in the action within six months of the date of the
  crimes charged, prior to the final  disposition  of  the  indictment  or
  superior  court  information  and while the defendant is charged with an
  offense specified in paragraph (a) of subdivision one of  this  section,
  the  victim  may  request  that  the defendant submit to a follow-up HIV
  related test. Such request must be in writing, filed with the court  and
  provided  by  the  court  to the defendant or his or her counsel. Upon a
  finding that the follow-up HIV related test is medically appropriate the
  court must order that the defendant submit to such test. The court shall
  not make such finding of medical appropriateness  unless  the  follow-up
  HIV  related  test  is  to  be  administered a sufficient time after the
  charged offense to be consistent with guidelines that may be  issued  by
  the  commissioner  of  health. There shall be no more than one follow-up
  HIV related test absent a showing of extraordinary circumstances.
    4. Any requests, related papers and orders made or filed  pursuant  to
  this  section,  together with any papers or proceedings related thereto,
  shall be sealed by the court and not made  available  for  any  purpose,
  except  as  may  be  necessary  for  the conduct of judicial proceedings

  directly related to the provisions of this section. All  proceedings  on
  such requests shall be held in camera.
    5.  The  application  for an order to compel a defendant to undergo an
  HIV related test may be made by the victim but,  if  the  victim  is  an
  infant  or  incompetent  person,  the  application may also be made by a
  representative as defined in section twelve hundred  one  of  the  civil
  practice  law  and  rules.  The  application  must  state  that: (a) the
  applicant was the victim of the offense enumerated in paragraph  (a)  of
  subdivision  one  of this section of which the defendant is charged; and
  (b) the applicant has been offered pre-HIV test counseling and  post-HIV
  test  counseling  by  a public health officer in accordance with article
  twenty-seven-F of the  public  health  law  and  has  been  advised,  in
  accordance with any guidelines that may be issued by the commissioner of
  health, of (i) the limitations on the information to be obtained through
  an HIV test on the proposed subject; (ii) current scientific assessments
  of  the risk of transmission of HIV from the exposure he or she may have
  experienced; and (iii) the need for the applicant to undergo HIV related
  testing to definitively determine his or her HIV status.
    6. The court shall conduct a hearing only if necessary to determine if
  the applicant is the victim of the offense of  which  the  defendant  is
  charged   or   to  determine  whether  a  follow-up  test  is  medically
  appropriate. The court ordered test must be performed within forty-eight
  hours of the date  on  which  the  court  ordered  the  test,  provided,
  however,  that  whenever  the  defendant is not tested within the period
  prescribed by the court, the court must again order that  the  defendant
  undergo  an  HIV  related  test.  The  defendant  shall  be  advised  of
  information as to HIV testing and medical treatment in  accordance  with
  any guidelines that may be issued by the commissioner of health.
    7.  (a)  Test  results  shall  be  disclosed  subject to the following
  limitations, which shall be specified in any order  issued  pursuant  to
  this section:
    (i)  disclosure  of  confidential  HIV  related  information  shall be
  limited to that information which is necessary to  fulfill  the  purpose
  for which the order is granted; and
    (ii)  disclosure of confidential HIV related information shall be made
  to the defendant upon his or her request, and  disclosure  to  a  person
  other  than  the  defendant  shall  be  limited to the person making the
  application; redisclosure shall be permitted only  to  the  victim,  the
  victim's  immediate  family, guardian, physicians, attorneys, medical or
  mental health providers and to his or her past and  future  contacts  to
  whom there was or is a reasonable risk of HIV transmission and shall not
  be permitted to any other person or the court.
    (b)  Unless  inconsistent  with  this section, the court's order shall
  direct  compliance  with  and  conform  to  the  provisions  of  article
  twenty-seven-F  of  the  public  health  law.  Such  order shall include
  measures to protect against disclosure to others of the identity and HIV
  status of the applicant and of the person tested and  may  include  such
  other  measures  as  the  court  deems necessary to protect confidential
  information.
    8. Any failure to comply  with  the  provisions  of  this  section  or
  section  twenty-seven  hundred  eighty-five-a  of  the public health law
  shall not impair or affect the  validity  of  any  proceeding  upon  the
  indictment or superior court information.
    9.  No information obtained as a result of a consent, hearing or court
  order for testing issued pursuant to this section  nor  any  information
  derived  therefrom  may  be  used  as  evidence in any criminal or civil
  proceeding against the defendant which relates to events that  were  the
  basis for charging the defendant with an offense enumerated in paragraph

  (a) of subdivision one of this section, provided however that nothing in
  this  section  shall  prevent prosecution of a witness testifying in any
  court hearing held pursuant to this  section  for  perjury  pursuant  to
  article two hundred ten of the penal law.