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By LeAnn R. Ralph
MENOMONIE — The alleged victim of a 19-year-old Colfax man accused of the sexual assault of a child under the age of 13 is asking that the defendant be tested for sexually transmitted diseases and human immunodeficiency virus (HIV).
Brady J. Agema, along with his attorney, Harry Hertel, appeared before Judge James Peterson in Dunn County Circuit Court July 1.
Agema is charged with three felony counts of the first-degree sexual assault of a child under the age of 13, two felony counts of the possession of child pornography, and one misdemeanor count of resisting or obstructing an officer.
Hertel has taken the position of wanting to cross-examine the subject asking for HIV testing, Judge Peterson said.
Hertel’s motion is citing state statue 252.15 (restrictions on use of HIV testing), said Amber Hahn, Dunn County assistant district attorney.
In state Statute 948.02 (sexual assault of a child), the legislature did not intend for a child to be cross-examined, she said.
In state Statute 950.04 (basic bill of rights for victims and witnesses), a victim can ask for testing of a communicable disease and the results, Judge Peterson said.
Under state Statute 968.38 (testing for HIV), after the defendant has been bound over for trial but before the trial, with 72 hours of notice for the hearing, the witness can be cross-examined, the judge said, adding that he believes the rules of evidence apply (state Statutes 901 to 911).
State Statute 968.38 talks about the body fluid of the defendant, and there is no indication of body fluid but the requirement is an exchange of body fluid, Hertel said.
State Statute 968.38(1) talks about contact with body fluid constituting significant exposure, Judge Peterson said.
As far as the court is concerned, 968.38(2) applies, he said.
According to state Statute 968.38 (2), if the district attorney has probable cause to believe that the alleged victim had contact with the defendant’s body fluid, or if the alleged victim or the parent or guardian of an alleged victim who is a minor asks the district attorney to apply for an order, the district attorney “shall apply” to the circuit court for his or her county to order the defendant to submit to an HIV test and to tests for sexually transmitted diseases.
Judge Peterson set a date of July 16 for the district attorney’s office to file a brief with the court and set a date of July 30 for Hertel to respond to the state’s brief.
A 30 minute hearing on the matter is scheduled for August 10 at 10 a.m.
Bail was set for Agema at $10,000 cash on May 10, but Judge Peterson amended the cash bail to $5,000 at Agema’s initial appearance May 11.
Agema posted the $5,000 cash bail on May 13.