5.6Testing and Counseling for Sexually Transmitted Infections

There are two situations in which a court has the authority to order testing and counseling for sexually transmitted infection, hepatitis B or C infection, human immunodeficiency virus (HIV) infection, and acquired immunodeficiency syndrome (AIDS): (1) after a defendant has been arrested and charged with a sex offense listed in MCL 333.5129(1) or MCL 333.5129(2); and (2) after a defendant has been bound over to or indicted in circuit court for a sex offense listed in MCL 333.5129(3).

A.Defendants Arrested and Charged

1.Discretionary Examination and Testing

Under MCL 333.5129(1), the court may order a defendant who has been arrested and charged with a violation of any of the following prostitution offenses¹ to be examined or tested for sexually transmitted infection, hepatitis B infection, hepatitis C infection, HIV infection, or AIDS:²

•Soliciting prostitution, MCL 750.448.

•Receiving a person into a place of prostitution, MCL 750.449.

•Engaging services for the purpose of prostitution, MCL 750.449a.

•Aiding and abetting certain prostitution offenses, MCL 750.450.

•Keeping a house for the purpose of prostitution, MCL 750.452.

•Procuring a person for a house of prostitution, MCL 750.455.

•A local ordinance prohibiting prostitution or engaging or offering to engage the services of a prostitute.

If the examination or test results indicate the presence of sexually transmitted infection, hepatitis B infection, hepatitis C infection, HIV infection, or AIDS, the examination or test results must be reported to the defendant, the department of health and human services, and the appropriate local health department for partner notification, as required under MCL 333.5114 and MCL 333.5114a. MCL 333.5129(1).

2.Mandatory Distribution of Information About Sexually Transmitted Infection and HIV Infection and Recommendation of Counseling

If an individual is arrested and charged with a violation of any of the sex offenses in MCL 333.5129(2), the judge or magistrate responsible for setting the individual’s conditions of release pending trial must distribute to the individual the same information about sexually transmitted infection and HIV infection that county clerks are required to distribute to marriage license applicants under MCL 333.5119(1).³ The relevant offenses listed in MCL 333.5129(2) are:⁴

•Accosting, enticing, or soliciting a minor for immoral purposes or encouraging a minor to commit an immoral act, MCL 750.145a.

•Gross indecency between males, MCL 750.338.

•Gross indecency between females, MCL 750.338a.

•Gross indecency between males and females, MCL 750.338b.

•Soliciting prostitution, MCL 750.448.

•Receiving a person into a place of prostitution, MCL 750.449.

•Engaging services for the purpose of prostitution, MCL 750.449a.

•Aiding and abetting certain prostitution offenses, MCL 750.450.

•Keeping a house for the purpose of prostitution, MCL 750.452.

•Procuring a person for a house of prostitution, MCL 750.455.

•CSC-I, MCL 750.520b.

•CSC-II, MCL 750.520c.

•CSC-III, MCL 750.520d.

•CSC-IV, MCL 750.520e.

•Assault with intent to commit criminal sexual conduct, MCL 750.520g.

•A local ordinance prohibiting prostitution, solicitation, or gross indecency.⁵

The information required to be distributed by county clerks under MCL 333.5119(1), and thus by a judge or magistrate under MCL 333.5129(2), includes written educational materials prepared or approved by the department of health and human services on topics related to prenatal care, the transmission and prevention of sexually transmitted infection, and HIV infection. MCL 333.5119(1). This information must include a list of locations where HIV counseling and testing services funded by the department of health and human services are available. Id.

Also, the judge or magistrate “shall recommend that the [defendant] obtain additional information and counseling at a local health department testing and counseling center regarding sexually transmitted infection, hepatitis B infection, hepatitis C infection, HIV infection, and [AIDS].” MCL 333.5129(2) (emphasis added). A defendant’s participation in counseling under MCL 333.5129(2) is voluntary. Id.

B.Defendants Bound Over to Circuit Court

1.Mandatory Examination and Testing

Under MCL 333.5129(3), the district court must order a defendant who is bound over to circuit court for violating any of the offenses set out in MCL 333.5129(3) to be examined or tested for sexually transmitted infection, hepatitis B infection, hepatitis C infection, and for the presence of HIV or HIV antibodies, if there is reason to believe that the violation involved sexual penetration or exposure to a defendant’s body fluids.⁶ “The circuit court shall order the examination or testing if the defendant is brought before it by way of indictment for any of the violations described in [MCL 333.5129(3)].”Id. 

The offenses enumerated in MCL 333.5129(3) are:⁷ 

•Accosting, enticing, or soliciting a minor for immoral purposes or encouraging a minor to commit an immoral act, MCL 750.145a.

•Gross indecency between males, MCL 750.338.

•Gross indecency between females, MCL 750.338a.

•Gross indecency between males and females, MCL 750.338b.

•Aiding and abetting certain prostitution offenses, MCL 750.450.

•Keeping a house for the purpose of prostitution, MCL 750.452.

•Procuring a person for a house of prostitution, MCL 750.455.

•CSC-I, MCL 750.520b.

•CSC-II, MCL 750.520c.

•CSC-III, MCL 750.520d.

•CSC-IV, MCL 750.520e.

•Assault with intent to commit criminal sexual conduct, MCL 750.520g.

Additionally, at the victim’s request, the circuit court must order a defendant who is bound over to or brought before it for CSC-I, CSC-II, CSC-III, CSC-IV, or assault with intent to commit CSC to be examined or tested “not later than 48 hours after the date that the information or indictment is presented and the defendant is in custody or has been served with the information or indictment.” MCL 333.5129(3). “The court shall include in its order for expedited examination or testing at the victim’s request under [MCL 333.5129(3)] a provision that requires follow-up examination or testing that is considered medically appropriate based on the results of the initial examination or testing.” Id. 

“Except as otherwise provided in [MCL 333.5129(5)-(7)], or as otherwise provided by law, the examinations and tests must be confidentially administered by a licensed physician, the department, or a local health department.” MCL 333.5129(3).

For information on mandatory testing and examination after a defendant is convicted of an offense specified in MCL 333.5129(4), which includes many of the offenses specified for defendants who are arrested and charged, or bound over or indicted, see Section 8.3.

2.Mandatory Counseling

In addition to ordering testing and examination under MCL 333.5129(3), the court must order a defendant who has been bound over or indicted for an offense listed in MCL 333.5129(3) to undergo counseling. MCL 333.5129(3). At a minimum, this counseling must include information regarding the treatment, transmission, and protective measures relevant to sexually transmitted infection, hepatitis B infection, hepatitis C infection, HIV infection, and AIDS. Id.

C.Disclosure of Examination or Testing Results

The confidentiality referred to in MCL 333.5129(3) and MCL 333.5129(4) is limited to the administration of examinations or tests. The confidentiality of results gotten by the examinations or tests authorized by MCL 333.5129(3)-(4) is set forth in MCL 333.5129(6).

1.Disclosure to the Victim or Exposed Individual

When the defendant engaged in sexual penetration or contact with the victim or another individual, or the victim or individual was exposed to a body fluid of the defendant, and when the victim or individual has consented to the provision of his or her name, address, and telephone number to the person or agency conducting the examination or testing, the examination or test results must immediately be provided to the victim or individual by the person or agency conducting the examination or tests. MCL 333.5129(5). The court must provide the victim’s or individual’s contact information to the person or agency conducting the examinations or administering the tests. Id.

If the victim or individual is a minor or otherwise incapacitated, his or her parent, guardian, or person in loco parentis may give consent for purposes of MCL 333.5129(5).

2.Disclosure to the Court

The examination or test results obtained from examinations or testing conducted under MCL 333.5129(3) or MCL 333.5129(4) and any other medical information obtained from the defendant must be transmitted to the court, and after the defendant is sentenced, the examination or test results must be made part of the court record. MCL 333.5129(6). The examination or test results described in MCL 333.5129(6) is confidential and may be disclosed to the following individuals/entities or under the following circumstances:

•the defendant, MCL 333.5129(6)(a).

•the local health department, MCL 333.5129(6)(b).

•the department, MCL 333.5129(6)(c).

•the victim or other individual required to be informed of the results, MCL 333.5129(6)(d).

•when the defendant provides written authorization for disclosure of the information, MCL 333.5129(6)(e).

•as otherwise provided by law, MCL 333.5129(6)(f).

“A person or agency that discloses information in compliance with [MCL 333.5129(6)] is not civilly or criminally liable for making the disclosure.” MCL 333.5129(7).

3.Disclosure to the Department of Corrections

When a defendant is placed in the custody of the department of corrections (DOC), the court must transmit a copy of the examination and test results and other medical information to the DOC. MCL 333.5129(7).

“A person or agency that discloses information in compliance with [MCL 333.5129(7)] is not civilly or criminally liable for making the disclosure.” Id.

D.Confidentiality of Disclosed Information

When a person or agency receives test results or other medical information regarding HIV infection or AIDS under MCL 333.5129(6) or MCL 333.5129(7), the person or agency must comply with MCL 333.5131 and must not disclose the test results or medical information except as specifically permitted by MCL 333.5131. MCL 333.5129(7).

“All reports, records, and data pertaining to testing, care, treatment, reporting, and research, and information pertaining to partner notification under [MCL 333.5114a], that are associated with HIV infection and [AIDS] are confidential.” MCL 333.5131(1). MCL 333.5131 governs the release of reports, records, data, and information described in MCL 333.5131(1). Id.

MCL 333.5131(3)(a)-(b) state the circumstances and restrictions that apply to the disclosure of information related to HIV infection or AIDS. Information regarding HIV infection and AIDS may be disclosed only in response to a court order and subpoena. MCL 333.5131(3).

“A court that is petitioned for an order to disclose the information [regarding HIV infection or AIDS] shall determine both of the following:

(i) That other ways of obtaining the information are not available or would not be effective.

(ii) That the public interest and need for the disclosure outweigh the potential for injury to the patient.” MCL 333.5131(3)(a).

A court order requiring disclosure of the information must do all of the following:

“(i) Limit disclosure to those parts of the patient’s record that are determined by the court to be essential to fulfill the objective of the order.

“(ii) Limit disclosure to those persons whose need for the information is the basis for the order.

“(iii) Include any other measures as considered necessary by the court to limit disclosure for the protection of the patient.” MCL 333.5131(3)(b).

The confidentiality of the reports, records, and data associated with HIV infection and AIDS does not apply in all cases. MCL 333.5131(5)(a)-(g). However, when information is disclosed under MCL 333.5131(5), the person who discloses the information “shall not include in the disclosure information that identifies the individual to whom the information pertains, unless the identifying information is determined by the person making the disclosure to be reasonably necessary” to the situations described in MCL 333.5131(7). MCL 333.5131(7).

Except as otherwise provided by law, the results of a test for HIV infection or AIDS is information subject to the physician-patient privilege outlined in MCL 600.2157. MCL 333.5131(2).

A violation of MCL 333.5131 is a misdemeanor punishable by not more than one year of imprisonment or a maximum fine of $5,000, or both. MCL 333.5131(8). A person who violates MCL 333.5131 is also “liable in a civil action for actual damages or $1,000.00, whichever is greater, and costs and reasonable attorney fees.” Id.

E.Positive Test Results Require Referral for Appropriate Medical Care

If a person counseled, examined, or tested under MCL 333.5129 is found to have a sexually transmitted infection, hepatitis B or C infection, or HIV infection, the agency that provided the counseling or testing must refer the person for appropriate medical care. MCL 333.5129(8). The department of health and human services, the local health department, or any other agency that provided the testing or counseling is not financially responsible for medical care the person may receive as a result of a referral. Id.

F.Ordering Payment for the Costs of Examination and Testing

After a defendant who was examined or tested under MCL 333.5129 is convicted, the court may order the defendant “to pay the actual and reasonable costs of that examination or test incurred by the licensed physician or local health department that administered the examination or test.” MCL 333.5129(10). The individual ordered to pay the costs of an examination or test must pay the costs within 30 days of the order or at another time provided by the court. MCL 333.5129(11). Failure to pay the costs within 30 days or as otherwise ordered by the court is a misdemeanor punishable by not more than 90 days of imprisonment or a fine of not more than $100, or both. Id.