Legislature(1997 - 1998)
04/22/1997 09:15 AM Senate FIN
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* first hearing in first committee of referral
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+ teleconferenced
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Senate Bill 17
"An Act creating the crime of criminal transmission of human
immunodeficiency virus (HIV)."
JOE AMBROSE, STAFF, SENATOR ROBIN TAYLOR, SPONSOR, read the
following Sponsor Statement into the record:
Senate Bill 17 was introduced with the goal of putting
Alaska in a pro-active position when it comes to dealing
with individuals who knowingly place others at risk of HIV
infection. SB 17 is intended to be preventative as well as
punitive and is intended to render a criminal rather than
moral judgment. As of December 31, 1996, 369 Alaskans had
been confirmed to have AIDS. That's since tracking began in
1982. Of these cases, 194 are known to have died. The
Epidemiology section of the Division of Public Health
reports that as of December 31, 1996, 640 Alaskans had
tested positive for HIV infection. That number represents
only those who have voluntarily tested through the State
Section of Laboratories.
The statistics show that HIV/AIDS affects both male and
female, across all age groups and without respect to race or
residence. The sad fact is that the rate of infection in
Alaska is increasing. If someone intentionally sets out to
kill another person by infecting them with the AIDS virus,
they can be charged under state law with attempted first
degree murder. But, what do we do with the person who does
not "intend" to kill, but who still places others in
jeopardy? In 1990, the Attorney General's office reviewed
that question and suggested that "it might be possible to
prosecute the person for reckless endangerment." That is a
class A misdemeanor prohibiting reckless conduct which
creates a "substantial risk of serious physical injury."
Most people would equate becoming infected with HIV as
something more than a "serious injury." Twenty-seven other
states have seen fit to adopt specific laws dealing with
criminal penalties for knowingly transmitting or exposing
another to HIV infection. It would only be prudent for
Alaska to have such a statute on the books. SB 17 is brief
and to the point. It creates the crime of criminal
transmission of HIV and covers actions and conduct known to
transmit the disease. The bill also provides an affirmative
defense when the person exposed knows beforehand that the
action could result in infection.
The bill also provides a provision excluding perinatal
transmission of the virus and to assure that an individual
is not prosecuted for an involuntary act. SB 17 is not
intended to punish those who have contracted HIV. It is
intended to protect others who may be unknowingly exposed to
the virus by what should be a criminal act of
irresponsibility.
Mr. Ambrose informed the committee that an Illinois statute
(adopted in 1989) was used almost verbatim in drafting SB 17. He
noted that the Illinois statute was included in the committee
packet as well as a summary of the laws passed in other states
and two court rulings on the Illinois law. On April 6, 1994, the
Illinois Supreme Court held that the statute did not violate
state or federal constitutional protections for free speech or
for free association and was not unconstitutionally vague. In its
ruling, the supreme court of Illinois stated:
Vagueness, like beauty, may be in the eye of the beholder.
However, we read the statute to be sufficiently clear and
explicit, so that a person of ordinary intelligence need not
guess at its meaning or application. It also provides
sufficiently definite standards for law enforcement officers
and triers of fact, so that its application need not depend
merely on their private conceptions.
Mr. Ambrose continued that the Illinois court, in a separate
case, also ruled that the Illinois statute was not vague. He
noted opinion that adoption of the statute would discourage
HIV/AIDS testing in Alaska; in Illinois, the Illinois Department
of Health reported that after the law was on the books for six
years, testing for HIV/AIDS had increased. The current year's
decrease in public testing was attributed to the increased
availability of testing in the private sector as well as the
availability of home testing.
Senator Adams agreed with health providers that the legislation
would deter people from getting tested, especially in rural
Alaska, and would have a negative impact on prevention. He
maintained that the burden of proof was being shifted in the bill
to the defendant. Mr. Ambrose disagreed and pointed out that a
person would have to "knowingly" transmit the disease; the
affirmative defense would be if they had advised the other person
involved.
Senator Adams wanted an opinion from the Department of Law on the
matter.
ELMER LINDSTROM, SPECIAL ASSISTANT TO THE COMMISSIONER,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES, summarized that SB 17
would criminalize an individual knowingly exposing another to HIV
through:
1. Voluntarily engaging in intimate sexual or other physical
contact which could result in infection;
2. Transferring, donating, or providing blood, tissue, semen,
organs, or other potentially infectious bodily fluids for
transfusion, transplantation, insemination or other
administration to another; or
3. Dispensing, delivering, exchanging, selling, or in any
manner transferring to another non-sterile, intravenous,
or intramuscular drug paraphernalia.
Mr. Lindstrom asserted that the legislation could interfere with
public health interventions that have been shown to be effective
in preventing the spread of HIV. The interventions have been
based on encouraging individuals to seek testing, receive early
medical diagnosis and treatment, receive on-going education and
supportive services to reduce high-risk behavior, and to
participate cooperatively in partner-notification activities. He
maintained that criminalization of consensual sexual conduct and
introduction of additional criminal penalties for illicit drug
use activities relative to a person's knowledge of his or her HIV
status could prevent individuals from seeking medical support.
[SFC-97, Tape 121, Side B]
Mr. Lindstrom observed that current programs were based on
voluntary and confidential identification of partners and
notification of partners. He maintained that the legislation
could reduce participation because of fear of prosecution. As
written, he believed SB 17 could create criminal liability for an
HIV-positive person who did many things without first disclosing
their HIV status and getting consent. For example, people could
be come criminals who coach sports or work in health care,
emergency response, firefighting, childcare, or participate in
other activities in which bodily fluids could be exchanged. He
pointed out that there were new techniques to reduce risk. He
believed the willingness to be tested was at the core of
controlling HIV.
Senator Parnell queried statistical correlation between
implementation of the law in other states and a decrease in
testing. Mr. Lindstrom was not aware of any information regarding
a downward trend, but observed that testing through the public
sector had decreased in Illinois. He suggested that the
legislation would encourage in-home and confidential testing.
Mr. Lindstrom opined that part of the confusion was the
difference between transmission and exposure. He pointed to page
1, line 7 of the bill, which referred to the criminal
transmission of HIV and the behaviors that could result in
transmission. He argued that in the majority of instances where
the behaviors could occur, the likelihood of transmission was
small. He thought the bill would be more accurate if it
criminalized potential exposure of HIV, rather than transmission.
He observed that the chance of transmittal for one instance of
sexual intercourse was low.
Senator Parnell pointed out that public testing originally
increased in Illinois after implementation of the law. He asked
whether the department had looked at the response in other states
with similar laws. Mr. Lindstrom did not know and offered to get
the information.
Senator Phillips queried existing statute related to knowingly
transmitting other diseases. Mr. Lindstrom responded that he was
not aware of other statutes. He noted department concern with
criminalizing any infectious disease, which he maintained was
inconsistent with effective public health practice. He asserted
that there was no scientific basis for criminalizing HIV exposure
and that other infectious agents (such as hepatitis B or C) were
more likely to cause infection after exposure and to cause
serious illness. He argued that there were many infectious
diseases, many of which were more infections than HIV. He
emphasized that the state did not criminalize transmission of
other diseases.
Senator Adams suggested that current statutes regarding reckless
endangerment and assault in the first degree would cover the
intent of the legislation.
AMY SKILBRED, ALASKA CIVIL LIBERTIES UNION (ACLU), testified that
ACLU was opposed to SB 17 on constitutional grounds and because
of the adverse effects on the state's public health system
efforts to combat the spread of HIV through voluntary testing,
counseling, partner notification, and prevention case management.
She maintained that HIV infection was a public health problem and
not a criminal problem. She believed individuals with a
transmittable disease (HIV, tuberculosis, Hepatitis B, or
Hepatitis C) should be encouraged to be tested, and those with
positive test results should be educated to understand how to
avoid infecting others and to use appropriate precautions.
Ms. Skilbred argued that SB 17 was likely to reduce voluntary
testing, education, and case management of HIV cases, which
typically accompanied being tested and learning results. People
would not want to be tested (especially by a public institution)
if the result of a voluntary medical test for HIV could become
the prosecution's lynchpin in a criminal case against them. She
stressed that Alaska law already addressed those cases where
someone intentionally or recklessly transmitted HIV under
criminal and assault laws; other states had successfully tried
the cases under fear of imminent personal injury, felony assault,
assault with a deadly instrument, reckless endangerment, and
serious bodily harm. She maintained that adding the statute to
existing Alaskan law would not provide prosecutors with
additional tools. She noted that the fiscal notes were zero
because relevant individuals would already be prosecuted under
existing law.
Senator Donley commented that the position of the ACLU would be
stronger if it also advocated for protection of Second Amendment
rights.
Co-chair Sharp queried the penalty for a Class B felony. Senator
Donley replied zero to five years.
Senator Donley MOVED to ADOPT a conceptual amendment:
Line 9:
Add "unprotected" after "voluntary" and add "unprotected"
before "intimate contact" in the definitions
Line 13:
Add "and no protective devise was used"
Mr. Ambrose referred to prior discussion regarding the issue and
argued against the amendment. He maintained that the thrust of
the bill was that an individual needed to make someone they were
potentially exposing aware of the infection. He observed that the
amendment would add another element that would have to be proven
in a criminal case. He noted that condoms break and the person
being exposed needed to know that they had the potential of being
infected. He maintained that the department had testified the
previous year that most of the cases in the state resulted from
consensual sex; the question was whether the consent would have
been given if the individual was informed upfront. The amendment
would criminalize the act, not the disease.
In response to a question by Senator Phillips, Mr. Ambrose stated
that he did not know of any laws currently in place in Alaska
that prohibited a person from transferring any other infectious
disease. He added that a person in Alaska with an active case of
tuberculosis could be involuntarily detained, but the detention
was a civil action, not a criminal one.
Senator Phillips expressed concerns. Mr. Ambrose responded that
the concern related to the consequences of contracting the
disease; hepatitis cases could be fatal, but could be treated,
while HIV was deadly.
Senator Pearce MOVED to REPORT SB 17 out of committee with
individual recommendations and the accompanying fiscal note.
An OBJECTION was MAINTAINED.
A roll call vote was taken on the motion.
IN FAVOR: Pearce, Donley, Phillips, Torgerson, Sharp
OPPOSED: Adams
The MOTION PASSED (5-1).
SB 17 was REPORTED out of Committee with "no recommendation" and
three previously published fiscal notes: ADM, LAW, and DPS.
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