STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2014 SESSION
Assemblyman JACK M. CIATTARELLI
District 16 (Hunterdon, Mercer, Middlesex and Somerset)
Assemblyman JON M. BRAMNICK
District 21 (Morris, Somerset and Union)
Assemblywoman HOLLY SCHEPISI
District 39 (Bergen and Passaic)
Assemblyman JAY WEBBER
District 26 (Essex, Morris and Passaic)
Assemblyman JOSEPH CRYAN
District 20 (Union)
Assemblyman TROY SINGLETON
District 7 (Burlington)
Assemblywomen N.Munoz, Simon and Angelini
Provides for disclosure of person’s medical records related to AIDS or HIV infection for investigations or prosecutions of crime of diseased person committing act of sexual penetration; makes crime ineligible for expungment.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning investigations and prosecutions of certain diseased persons committing acts of sexual penetration, and amending P.L.1989, c.303 and N.J.S.2C:52-2.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 5 of P.L.1989, c.303 (C.26:5C-9) is amended to read as follows:
5. a. The record of a person who has or is suspected of having AIDS or HIV infection may be disclosed by an order of a court of competent jurisdiction which is granted pursuant to an application showing good cause therefor. At a good cause hearing the court shall weigh the public interest and need for disclosure against the injury to the person who is the subject of the record, to the physician-patient relationship, and to the services offered by the program. Upon the granting of the order, the court, in determining the extent to which a disclosure of all or any part of a record is necessary, shall impose appropriate safeguards to prevent an unauthorized disclosure.
b. A court may authorize disclosure of a person's record for the purpose of conducting an investigation of or a prosecution for a crime of which the person is suspected, only if the crime is a first degree crime or the crime of a diseased person committing an act of sexual penetration set forth under subsection b. of N.J.S.2C:34-5, and there is a reasonable likelihood that the record in question will disclose material information or evidence of substantial value in connection with the investigation or prosecution.
c. Except as provided in subsections a. and b. of this section, a record shall not be used to initiate or substantiate any criminal or civil charges against the person who is the subject of the record or to conduct any investigation of that person.
d. The court shall deny an application for disclosure of a person's record unless the court makes a specific finding that the program was afforded the opportunity to be represented at the hearing. A program operated by a federal, State or local government agency or department shall be represented at the hearing.
e. Nothing in this section shall be construed to authorize disclosure of any confidential communication which is otherwise protected by statute, court rule or common law.
(cf: P.L.1989, c.303, s.5)
2. N.J.S.2C:52-2 is amended to read as follows:
2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in N.J.S.2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:
(1) less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
(2) at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.
In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.2C:11-5; N.J.S.2C:13-1 (Kidnapping); section 1 of P.L.1993, c.291 (C.2C:13-6) (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); [N.J.S.2C:14-3a] subsection a. of N.J.S.2C:14-3 (Aggravated Criminal Sexual Contact); if the victim is a minor, [N.J.S.2C:14-3b] subsection b. of N.J.S.2C:14-3 (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, N.J.S.2C:13-2 (Criminal Restraint) or N.J.S.2C:13-3 (False Imprisonment); N.J.S.2C:15-1 (Robbery); N.J.S.2C:17-1 (Arson and Related Offenses); [N.J.S.2C:24-4a.] subsection a. of N.J.S.2C:24-4 (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); [N.J.S.2C:24-4b(4)] paragraph (4) of subsection b. of N.J.S.2C:24-4 (Endangering the welfare of a child); [N.J.S.2C:24-4b. (3)] paragraph (3) of subsection b. of N.J.S.2C:24-4 (Causing or permitting a child to engage in a prohibited sexual act); [N.J.S.2C:24-4b.(5)(a)] subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual exploitation or abuse of a child); [N.J.S.2C:24-4b.(5)(b)] subparagraph (b) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Possessing items depicting the sexual exploitation or abuse of a child); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); [N.J.S.2C:34-1b.(4)] paragraph (4) of subsection b. of N.J.S.2C:34-1 (Knowingly promoting the prostitution of the actor's child); subsection b. of N.J.S.2C:34-5 (Diseased person committing an act of sexual penetration); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.
Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or
(3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.
d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
(cf: P.L.2013, c.136, s.3)
3. This act shall take effect immediately, except that section 1 of this act shall only be applicable to criminal prosecutions occurring on or after the effective date.
This bill concerns criminal investigations and prosecutions under subsection b. of N.J.S.2C:34-5 against a person who, while knowingly infected with HIV or any other related virus identified as a probable causal agent of AIDS, commits an act of sexual penetration without the informed consent of the other person.
Specifically, the bill would provide for the disclosure, via court order, of a person’s medical records related to HIV or AIDS infection for the purpose of conducting an investigation of, or a prosecution for, the above described criminal sexual penetration. Such act is a crime of the third degree, punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both.
Disclosure would be accomplished under the bill by amending the existing law permitting a court-ordered disclosure of such records; the law is currently limited to providing disclosure only for the investigation or prosecution of a crime of the first degree. See P.L.1989, c.303, s.5 (C.26:5C-9). Thus, any investigation or prosecution involving a first degree crime or the third degree crime of criminal sexual penetration would warrant disclosure when authorized by a court.
The bill would additionally provide that a conviction for the above described criminal sexual penetration is not eligible for expungement. Thus a person with such conviction would not be able to expunge the conviction, or the records and information relating thereto maintained with the conviction.