Legislature(1995 - 1996)

04/09/1996 03:10 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 CSSB 91(HES) - CRIMINAL TRANSMISSION OF HIV                                  
                                                                              
 Number 881                                                                    
                                                                               
 CO-CHAIR TOOHEY said the committee would be taking testimony only             
 and would not be moving CSSB 91(HES) out of committee at this                 
 meeting.                                                                      
                                                                               
 Number 929                                                                    
                                                                               
 SENATOR ROBIN TAYLOR, Sponsor, said Senate Bill 91 was introduced             
 because of an article, which he had provided committee members with           
 a copy, relating to one of the more winning race car drivers on the           
 Nascar circuit named Richmond.  He earned $2.3 million and won 13             
 Winston Cup races.  He also was infected with AIDS, never bothered            
 to notify his sexual partners and it is estimated he's probably               
 going to kill 30 women.  He already died.  The picture in the                 
 article is that of a beautiful woman who has graced the covers of             
 Glamour, Seventeen and Cosmopolitan magazines.  Her doctor is           
 quoted as saying, "She suffers today from temporal wasting"; in               
 other words her skull is caving in as a complication of the AIDS.             
 He referred to another article about a heterosexual woman infected            
 with AIDS who said, "I feel if I have to die of a horrible disease,           
 I won't be going alone."  This woman lives in the Dallas area where           
 she frequents bars and attempts to infect as many man as she can.             
 He added that Dallas is rated number 12 nationally for AIDS; they             
 have over 3,200 recorded cases in their community.  Another reason            
 he introduced this legislation is because of an individual named              
 Governor Jim Edgar, current Governor of Illinois, who wanted to be            
 kind and considerate.  He explained that a woman had been convicted           
 and sentenced to three years in prison because after being                    
 diagnosed with AIDS, she intentionally attempted to infect other              
 people with the disease by having unprotected sex.  Governor Edgar,           
 who wanted to be a nice person, commuted her sentence.  Three weeks           
 after her sentence was commuted, "Tracy Eichman, 34, was arrested             
 by Rockford police on Tuesday after offering to perform sexual acts           
 for a police officer for $20, authorities said.  She was being held           
 in the Winnebago County Jail on $25,000 bond.  She faces one to               
 three years in prison if convicted on the new charges.  In February           
 1991, Eichman was sentenced to 3 years in prison after being                  
 convicted."  Governor Edgar commuted her sentence so she could get            
 back out on the street and infect more people.  Senator Taylor                
 referred to an article about a heterosexual male, William Barker,             
 who had tested positive for the AIDS virus and threatened to take             
 all the women with him that he could before he dies.  He quoted               
 from the article, "Barker was arrested April 9 after a parole                 
 officer received a tip that Barker was deliberately trying to                 
 infect women with AIDS, Stewart said.  Police found Barker and the            
 women in a motel room.  She became hysterical when officers told              
 her Barker had AIDS."  Senator Taylor added that any one of us                
 would probably become hysterical to find out such information after           
 the fact.                                                                     
                                                                               
 SENATOR TAYLOR directed the committee's attention to the article              
 about a homosexual who knowing that he was diagnosed with AIDS had            
 a sexual relationship with a 17-year-old boy.  He noted that the              
 United States military doesn't handle it quite the same way as                
 Governor Edgar, and instead dishonorably court martialed him and he           
 is serving 10 years.  His crime is, "He was likely to transmit HIV.           
 The crime of transmitting HIV or being likely to transmit and                 
 engaging in such acts that would transmit it in Texas is a felony."           
                                                                               
 SENATOR TAYLOR said this issue was brought to his attention by a              
 friend, John Walsh, of America's Most Wanted television show.                 
 Before Mr. Walsh started his television program, he came to Alaska            
 and worked with many individuals to bring about changes concerning            
 lost and sexually abused children and background checks for people            
 who deal with children.  On one of Mr. Walsh's programs, he asked             
 the public to call in if they knew of a heterosexual man from                 
 Georgia who was estimated to have infected at least 30 women.  They           
 believed he could be hiding out in any one of the states that did             
 not have a law against this type of conduct.  A map was displayed             
 on the television screen and to Senator Taylor's chagrin, Alaska              
 was one of those states which attracts people like that.  The most            
 risk an individual would run is being prosecuted for reckless                 
 endangerment, which is a misdemeanor and carries a maximum of one             
 year in jail.  He informed the committee that CSSB 91(HES) passed             
 overwhelming in the Senate.                                                   
                                                                               
 SENATOR TAYLOR said that Illinois' law was taken to the state                 
 Supreme Court to find out if it was constitutional.  He noted the             
 legislation before the committee was taken directly off the                   
 Illinois legislation.  The case was upheld by the Illinois Supreme            
 Court and at the time it was upheld, there were two cases pending.            
 In one case a woman was charged with knowingly spreading the virus            
 when she had sex without telling her partner.  In the second case             
 a man was charged with raping a woman when he knew he was infected            
 with the virus.  Senator Taylor said he couldn't understand why               
 anyone would want to protect and make life more comfortable for a             
 person that fails to inform their sexual partners they are infected           
 with this virus and knowing full well they could be transmitting              
 not a disease, but a death sentence.  He said he didn't understand            
 it and would like to be informed of what the reasons are because he           
 certainly hopes they are sufficient that if in fact there are                 
 people in Alaska currently (latest indications are there are over             
 500 who are currently infected) if there is only one or two                   
 individuals who are being so cavalier or who are so filled with               
 anger and rage over contracting this disease, do we really want to            
 risk that?   Will it have a "chilling" effect on people coming                
 forward to being examined?  The response is no.  Illinois                     
 prosecuted only three people, but at least those three were                   
 prosecuted and he would be willing to bet that Governor Edgar was             
 not going to turn any more of them loose.  In fact, Governor Edgar            
 is quoted as saying, "In the future, if he has a clemency request             
 from a person like that, he wants to do a much more careful                   
 examination of whether or not they are going to survive if the are            
 turned loose."                                                                
                                                                               
 SENATOR TAYLOR commented that Miami had the very same problem                 
 several years ago and Florida passed similar legislation.  A trial            
 judge in Miami had a lady who was a prostitute before him for the             
 third time and was in the final stages of AIDS.  The judge knew she           
 was in that condition when she was released the two previous times,           
 but the third time the judge locked her up because she was trying             
 to kill people.  He commented the social libertarians however                 
 thought she was being denied her freedom and added for some reason            
 there seems to be a bizarre schizophrenic twist in American society           
 today.                                                                        
                                                                               
 SENATOR TAYLOR informed the committee of an incident involving a              
 local sandwich shop who had an employee with hepatitis.  The shop             
 was closed down and every employee was tested to find out who had             
 the disease, who was spreading it and why.  That's not even being             
 done with the AIDS virus.  He remarked that hepatitis kills; his              
 brother-in-law died because of hepatitis.  He asked what was being            
 done in the world today about typhus, and where is "Typhoid Mary"?            
 Do we allow her to work in the school kitchens?  No, she is charged           
 with a crime if she does that.  Does it prevent people from being             
 tested for typhus?  No, in fact barriers have been established to             
 ensure that people who work in those facilities are tested for that           
 disease.  He asked how comfortable do you feel getting on an                  
 airplane knowing what is happening with tuberculosis today?  Does             
 it keep people from getting tested for TB?  The answer is no.  Do             
 we as responsible citizens take actions that will hopefully prevent           
 that from ever being transmitted to another person?  He thought               
 people did.                                                                   
                                                                               
 SENATOR TAYLOR said criminal activity is just another form of                 
 irresponsible activity.  He questioned if that was any more                   
 irresponsible than Mr. Richmond, the wealthy, playboy, race car               
 driver who wants to infect women all over the country and decides             
 he's not going to tell anyone.   Four of the infected women have              
 already died, and there are estimates of another 30 waiting.  He              
 wondered how anyone would explain to any of the family members that           
 he was a super hero and shouldn't have been charged with any                  
 criminal activity.  On the other hand if he had been charged, it              
 probably would have been on national news and had a deterring                 
 effect on other individuals from trying the same irresponsible,               
 deadly act.  He encouraged committee members to pass CSSB 91(HES)             
 from committee.                                                               
                                                                               
 CO-CHAIR TOOHEY asked if there were any questions of Senator                  
 Taylor.                                                                       
                                                                               
 Number 1583                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG asked Senator Taylor to explain the concept           
 of intent in criminal law.                                                    
                                                                               
 SENATOR TAYLOR said there was a legal opinion from the Attorney               
 General's Office in the packet, stating that intent would be                  
 required.  In this instance, the intent that is required is within            
 the bill.  It's a general intent crime, that a person merely                  
 intends to do this act.  It has to be done knowingly, and the only            
 way to get to knowingly is the person has to be knowingly diagnosed           
 as having AIDS.  Once that diagnosis has been made, if a person               
 participates in a sexual act with another consenting adult, they              
 must inform the other adult of the AIDS diagnosis and give that               
 other person the opportunity to know and to take additional                   
 precautions or not participate in that act.                                   
                                                                               
 REPRESENTATIVE ROKEBERG asked about the defense of wearing a                  
 prophylactic in that case?                                                    
                                                                               
 SENATOR TAYLOR replied this has nothing to do with wearing a                  
 prophylactic, but merely notifying the sexual partner.  That is the           
 only act that is required by this legislation.                                
                                                                               
 REPRESENTATIVE ROKEBERG asked what would happen if the individual             
 with HIV took a preventive measure, but did not inform the sexual             
 partner?                                                                      
                                                                               
 SENATOR TAYLOR responded the person would be guilty if he/she did             
 not inform the partner.  He emphasized that if an individual knew             
 they had AIDS, did not inform their sexual partner and went forward           
 with an act likely to transmit would be guilty.                               
                                                                               
 REPRESENTATIVE ROKEBERG thought there would be a problem with                 
 criminal intent under criminal construction if there was no intent            
 to transmit by wearing a prophylactic.                                        
                                                                               
 SENATOR TAYLOR remarked that an individual cannot avoid it by doing           
 that.  He added that if an individual with HIV has informed their             
 sexual partner of the virus, it doesn't matter if the individual is           
 wearing a prophylactic or not because the knowledge has been                  
 communicated to the person who may be the victim, and that person             
 then has the consensual right to risk that activity if they wish to           
 do so.  He emphasized the important thing is that the potential               
 victim know and have the opportunity to make a rational decision.             
                                                                               
 CO-CHAIR TOOHEY asked if there were other questions of Senator                
 Taylor?  Hearing none, she invited testimony from individuals via             
 teleconference.                                                               
                                                                               
 Number 1784                                                                   
                                                                               
 BARBARA BRINK, Attorney, Alaska Public Defender Agency, testified             
 from Anchorage that unlike Senator Taylor, she believes that Alaska           
 law already covers this type of behavior.  She said Senator Taylor            
 had questioned why the state would want to protect a person who is            
 engaging in this risky behavior to which she responded, Alaska does           
 not protect this person; Alaska punishes this person and punishes             
 the person severely.  She did not understand at the beginning the             
 impetus for this legislation, because if the legislature wants to             
 prosecute someone who is deliberately and recklessly setting about            
 to infect someone with the virus, Alaska laws already exist that              
 provide a range of prosecutorial charges and punishment to cover              
 every set of conduct mentioned by Senator Taylor.  She disagreed              
 with the analysis that the only thing a person could be charged               
 with is reckless endangerment.  The assault statutes in the state             
 of Alaska were constructed as a whole to deal with any situation              
 where violence is perpetrated upon a person, and as a whole they              
 cover every situation where an act or acts intentionally,                     
 recklessly or even just carelessly in causing harm to another                 
 person.  The assault statutes also prosecute differently, depending           
 on the actual seriousness of the harm caused.  She said the                   
 behavior described by Senator Taylor could be prosecuted as                   
 attempted murder, assault in the first degree, assault in the                 
 second degree and all the way down to reckless endangerment                   
 depending upon the actual harm caused.  Alaskans are protected from           
 this type of behavior and this legislation is unnecessary in order            
 to prosecute someone who infects the virus deliberately, recklessly           
 or knowingly.                                                                 
                                                                               
 MS. BRINK further stated in contrast, drafting a piece of                     
 legislation to cover a particular crime has raised a host of                  
 problems.   She said, "it makes this a Class B felony offense for             
 a person who has tested positive for the HIV virus, and I want to             
 distinguish that from someone who is diagnosed with AIDS - those              
 are two different things.  A person who is (indisc.) positive for             
 the HIV virus may engage in sexual activity with someone and be               
 prosecuted and charged with this crime, even though they never                
 develop the AIDS virus and the person they've engaged in conduct              
 with never actually develops the virus."  To have this thrown in              
 the middle of the assault statutes is out of whack proportionally             
 with the danger and with the harm.  She pointed out there is                  
 epidemiological evidence that the risk of transmission of the HIV             
 from a single incident is only 1 in 1,000.  She said that                     
 Representative Rokeberg had raised a good question about when a               
 person wears a prophylactic or a condom and under those                       
 circumstances, the chance of transmission is about 1 in 10,000.               
 This legislation would make this a Class B felony with a 10-year              
 sentence when there is little danger and little harm.  By creating            
 a special class of people she was concerned that this bill, if                
 enacted, would violate the equal protection.  She said we have                
 taken a single class of people, those persons infected with HIV,              
 and set about criminalizing their conduct.  What about people who             
 knowingly infect others with syphilis, gonorrhea, herpes or as                
 Senator Taylor mentioned, tuberculosis or hepatitis - why isn't               
 that behavior being criminalized?  To single out this class of                
 persons is not rationally related to protection to the health of              
 the public.  Additionally, it is over broad and interferes with               
 Alaskans' right to privacy.  The sexual behavior of an entire class           
 of people is being damned when it is not necessary and not                    
 productive.                                                                   
                                                                               
 MS. BRINK remarked she has real and demonstrable concerns that this           
 will accomplish just the opposite of what Senator Taylor wants to             
 accomplish.  Everyone wants to slow down the spread of HIV and                
 protect people.  Public education regarding transmission of the HIV           
 virus to enable people to voluntarily modify their behavior is far            
 more cost effective than punishing it after the fact.  If people              
 are told we want them to get tested but they cannot engage in                 
 intimate sexual conduct if they test positive, will have a negative           
 effect on the number of people getting tested.  This legislation              
 would have a definite impact of deterring people.  Therefore,                 
 rather than reducing the risk of the spread of HIV, she believes              
 this legislation will increase it.  Increasing public education and           
 removing restrictions on the availability of sterilized, disposable           
 hypodermic needles and encouraging hygienic HIV practices would be            
 far more cost effective in stopping the spread of HIV than this               
 bill.                                                                         
                                                                               
 TAPE 96-38, SIDE A                                                            
 Number 001                                                                    
                                                                               
 REPRESENTATIVE ROKEBERG asked if Ms. Brink was suggesting that                
 incarceration is not a deterrent to criminal activity?                        
                                                                               
 MS. BRINK replied no, she never suggested that.                               
                                                                               
 REPRESENTATIVE ROKEBERG said he asked the question because he                 
 thought that's what she had said.                                             
                                                                               
 MS. BRINK said when she had spoken of deterrents, she believed that           
 criminalizing the conduct of whether or not a person knows they are           
 HIV positive would deter people from getting tested.                          
                                                                               
 CO-CHAIR TOOHEY asked if there were further questions of Ms. Brink.           
 Hearing none, she asked Amy Eilertsen to present her testimony.               
                                                                               
 Number 064                                                                    
                                                                               
 AMY EILERTSEN, Director, Stop AIDS Project, testified from                    
 Anchorage.  As a former student of Representative Bunde's at UAA,             
 she urged him to pay special attention to the repercussions of CSSB
 91(HES).  She commented that as a registered nurse directing the              
 safer techniques of a prevention project, her goal is to reduce the           
 spread of HIV in the injectable drug users in Anchorage.  She said            
 in a high risk population such as this, denial and fear of knowing            
 one's HIV status is a big barrier to HIV testing.  The important              
 and indispensable part of HIV testing protocol is the risk                    
 reduction counseling that people receive.  This counseling informs            
 people on how not to get (indisc.) spread HIV and other sexually              
 transmitted diseases.  She believed this bill would reduce the                
 number of people being tested for HIV.  People would not only be              
 afraid to know their status because of the shock and social stigma            
 surrounding HIV, but people would be terrified of the legal                   
 repercussions regarding being tested and perhaps finding out they             
 have HIV.  Not being tested would mean not receiving this life-               
 saving personalized risk reduction counseling.  Without this                  
 counseling, those who do not have HIV would probably be at greater            
 risk for getting HIV.  In the state of Alaska, there have been                
 approximately 87,000 tests going through the state laboratory of              
 which 560 have come up positive as of December 31, 1995.                      
                                                                               
 MS. EILERTSEN said according to the Center for Disease Control and            
 prevention statistics, 9 out of 10 people who have HIV are not                
 being tested for HIV.  She commented, "So Senator Taylor, we can              
 say that between 3,000 and 5,000 residents of the state of Alaska             
 have HIV; 560 of these have been counseled on how not to give HIV             
 to people, the other 1,000 have not."  She believes the solution is           
 further education.  She reiterated her belief that this legislation           
 would reduce the number of people being HIV tested and would                  
 probably increase the spread of HIV.  She called the committee's              
 attention to page 1, line 12, which indicates that a woman who                
 knowingly passes HIV to her fetus purposefully will not be                    
 prosecuted, and yet a person who has HIV can have sex with someone            
 who does not have HIV transmitted to them and be prosecuted under             
 this bill.  She thanked the committee for giving her the                      
 opportunity to testify.                                                       
                                                                               
 Number 320                                                                    
                                                                               
 SENATOR TAYLOR asked Ms. Eilertsen if all the people she counsels             
 follow her directions and to the best of her knowledge have all               
 those people informed their sexual partners?  Or does she have                
 people she is counseling who continue to have an active sex life              
 without informing any of their sexual partners?                               
                                                                               
 MS. EILERTSEN asked what would they be informed their sexual                  
 partners of?                                                                  
                                                                               
 SENATOR TAYLOR responded informing them of the fact they have been            
 diagnosed.                                                                    
                                                                               
 MS. EILERTSEN interjected the people she has been counseling have             
 not necessarily been diagnosed or tested positive for HIV.  She               
 maintained that was her point - if people come in to be tested,               
 they may come up negative and this is an opportunity to coach                 
 people on how to stay negative.  If people don't come in to be                
 tested because they are afraid of being criminally prosecuted, the            
 opportunity for individualized education does not exist.                      
                                                                               
 SENATOR TAYLOR reiterated his question that of those people Ms.               
 Eilertsen knows to have tested positive and infected with AIDS that           
 she is counseling, are they restricting their sexual activity or              
 does she in fact have people who are sexually active and not                  
 telling their sexual partners they have been diagnosed?                       
                                                                               
 MS. EILERTSEN apologized for not quite understanding the question             
 in that people who have tested positive for HIV don't necessarily             
 (indisc.), so she doesn't know about people with AIDS.                        
                                                                               
 SENATOR TAYLOR thought she was in charge of a center that had                 
 something to do with AIDS.                                                    
                                                                               
 MS. EILERTSEN said the center counsels people on how not to get               
 HIV.                                                                          
                                                                               
 Number 447                                                                    
                                                                               
 JOHN MIDDAUGH, MD., Chief, Epidemiology Section, Division of Public           
 Health, Department of Health & Social Services, testified that he             
 has been responsible for overseeing the development of the AIDS               
 policies and enhancing the prevention efforts since 1982, when the            
 first person was diagnosed in Alaska with AIDS.  He appreciated the           
 very grave concerns that have been reflected in the submission of             
 Senator Taylor's bill and he believed that everyone shared the goal           
 in an abhorrence of the idea that a person would knowingly and                
 intentionally attempt to infect other individuals with a disease,             
 regardless of what that disease is.  He believed that current                 
 statutes and policies exist in the state to take care of the                  
 instances when it is able to be shown that that intention exists.             
 He said the department, division, AIDS program and AIDS task force            
 oppose this legislation and it's difficult to sort out some of the            
 issues in this very powerful and important area about why that is.            
                                                                               
 DR. MIDDAUGH said this legislation adds two major new components to           
 the existing statutes and procedures.  One is it removes the issue            
 of intention and it does not take into account whether transmission           
 of HIV does or does not occur.  It also fails to include any                  
 scientific information about the likelihood or infectiousness of an           
 individual attempting to infect another.  Now, that's not the                 
 (indisc.-paper shuffling) support anything, it's simply to say that           
 we know that during the period of infectivity with HIV, that at               
 some times individuals are not infectious at all.  Late in the                
 course of illness when AIDS occurs, then it's been able to be shown           
 that the virus is more present and the person is presumably more              
 infectious.  However, none of this information is reflected in the            
 proposed legislation.  He said what we are doing then is                      
 criminalizing an infectious agent in the absence of disease or                
 potentially in the absence of a degree of infectiousness to another           
 person.  As the committee had heard, that analogy then occurs in              
 that we have a registry of 1400 Alaskans who are hepatitis B                  
 surface antigen carriers.  The risk of transmission of hepatitis B            
 through sexual contact is far greater than HIV, perhaps as much as            
 10,000 to 100,000 times greater.  Dr. Middaugh said we have an                
 ability today to diagnose and fingerprint many kinds of viruses and           
 infectious agents.  Would we propose that we would criminalize the            
 behavior of a mother who dropped her child at a daycare center with           
 a fever, conjunctivitis, or a little rash and then learned the                
 child had measles and had infected another child at the daycare               
 center.  The history of public health is that the ability to                  
 prevent infections generally requires the enrollment of individuals           
 in a manner to prevent disease transmission and that often attempts           
 to prevent or criminalize diseases has in fact had the opposite               
 effect and led to the lack of early detection, the lack of                    
 effective prevention, and has led to greater problems of disease              
 transmission.  Dr. Middaugh said because of these reasons, he feels           
 it is very important that this type of legislation not be                     
 supported.  It would have very little benefit to either attempting            
 to punish individuals who have an intention to attempt to harm                
 another through transmission.  Frankly, if a person was attempting            
 to do a person in, the infection of HIV is a very inefficient way             
 to do it because of its low risk of transmission during an                    
 individual or several encounters.                                             
                                                                               
 DR. MIDDAUGH pointed out there were additional housekeeping type              
 problems with this legislation.  One is that the legislation                  
 discusses an affirmative defense that the defendant knew he/she was           
 infected and informed the other individual, and that consent was              
 given.  He said,  "Well, we know that many individuals who are                
 engaged in different activities, occasionally use drugs or alcohol            
 and that later recall of what was or wasn't transmitted and what              
 consent or level of knowledge was given, can be quite problematic."           
 He mentioned another problem is the definition of any contact                 
 between one or another that might or could result in the                      
 transmission of HIV.  He said, "Does that mean theoretically could            
 or is likely to; in other words, we know that for hospital workers            
 taking care of persons with AIDS, who have been stuck with a needle           
 after the needle has been first in the person with AIDS, that the             
 risk of the hospital person becoming infected from being stuck is             
 1 or 2 in 1,000 needle sticks.  It's not a highly infectious agent,           
 but circumstances and risk factors are able to be weighed and are             
 being increasingly understood about the likelihood of                         
 transmission."                                                                
                                                                               
 DR. MIDDAUGH stated another housekeeping problem with the bill is             
 that under the provision related to "dispenses, delivers,                     
 exchanges, sells, or in any manner transfers to another person any            
 nonsterile intravenous or intramuscular drug paraphernalia."  He              
 said that a person with diabetes who is HIV infected would have no            
 legal mechanism of disposing of their diabetes syringe and in fact            
 would be committing a criminal act if they turned it over to                  
 another person under this legislation.  He knew that wasn't                   
 intended by the sponsor, but the problem with trying to legislate             
 specifically against one single disease in order to accomplish a              
 different goal he thinks is very counter-productive to the combined           
 efforts of 1) to make sure there are mechanisms to avoid an                   
 intentional transmission of any lethal or potentially lethal                  
 infection and 2) more importantly, to try to prevent the disease.             
 The final point he wished to make is that we have an effort that's            
 in place to work with individuals who are infected with HIV and               
 enlist their cooperation in identifying all of their contacts.  He            
 remarked that what ensued when Magic Johnson announced his HIV                
 status was that thousands of people went and got tested because               
 they were concerned they may have HIV and almost none were                    
 infected.  In other words, huge numbers of tests of low risk, but             
 worried persons.  Alaska is a low prevalence HIV state and our                
 greatest efforts to prevent transmission are to work with all                 
 infected persons, identify  their contacts who are the most likely            
 themselves to be infected and to enlist and work with them to                 
 change their behaviors in order to prevent opportunities for the              
 virus to be transmitted in the future.  For the multiplicity of               
 these reasons, he urged the committee to make a difficult decision,           
 but not to pass this bill.                                                    
                                                                               
 Number 923                                                                    
                                                                               
 REPRESENTATIVE ROKEBERG referenced Dr. Middaugh's concerns about              
 intimate contact and asked if kissing would be a method of                    
 transmitted the HIV virus?                                                    
                                                                               
 DR. MIDDAUGH responded that it is not thought to be a likely                  
 transmission, but it potentially, theoretically could be considered           
 to result if, for instance, there was a cut in one person's mouth             
 and the other person had blood in their mouth from dental work,               
 vigorous brushing of teeth or braces abrading the mouth.  He added            
 this is one of the difficulties of attempting to achieve a goal by            
 legislating against the disease that has a complicated scientific             
 epidemiology and mode of transmission.                                        
                                                                               
 REPRESENTATIVE ROKEBERG asked about the known cases of the disease            
 being transmitted by dental practitioners.                                    
                                                                               
 DR. MIDDAUGH said no one knows for certain, but in the Kimberly               
 Burgelis tragedy, there is suspicion that that particular dentist             
 may have wilfully infected others to call attention to the plight             
 of the absence of funding and support to deal with the disease, but           
 it is also clear there was inadequate sterilization of the dental             
 instruments in that instance.  He commented there was also quite a            
 bit of IV drug abuse in that practice and among many of the                   
 individuals who were found to have been infected.                             
                                                                               
 Number 1022                                                                   
                                                                               
 REPRESENTATIVE ROBINSON asked Dr. Middaugh if he was aware of any             
 case in Alaska where someone knowingly transmitted HIV?                       
                                                                               
 DR. MIDDAUGH replied no.                                                      
                                                                               
 CO-CHAIR TOOHEY said there had been testimony on Representative               
 Ogan's bill, which is basically the same as Senator Taylor's, from            
 a woman who had prosecuted an individual who knowingly had infected           
 others in Juneau.                                                             
                                                                               
 DR. MIDDAUGH said he was unaware of the case.                                 
                                                                               
 CO-CHAIR TOOHEY offered to provide him with the tape of the                   
 committee hearing.                                                            
                                                                               
 Number 1069                                                                   
                                                                               
 REPRESENTATIVE VEZEY said there had been previous testimony to the            
 effect that this legislation was unnecessary because it is already            
 a crime to do the things mentioned in this bill.  There has also              
 been testimony in opposition because it may discourage people from            
 being tested for HIV.  He felt this was putting into statute what             
 constitutes a convictable offense; however, he did feel this                  
 legislation was ahead of the curve in terms of perpetrators and               
 victims.  He viewed this bill as simply saying that a person has              
 committed a crime if he/she knowingly infects another person,                 
 whether or not you kill the victim and that we as a society can               
 recognize that that form of behavior is not acceptable and can                
 remove such a person from society where innocent victims are                  
 exposed.  He commented that's what most of the laws do - they                 
 remove people from society.  He noted there had been discussions              
 about people with tuberculosis and we have tried to address them              
 with great compassion, but we have allowed people with tuberculosis           
 to be arrested and removed from society until the disease can be              
 brought under control.                                                        
                                                                               
 DR. MIDDAUGH said Representative Vezey's points were important                
 ones, but in the case of tuberculosis, that is only done when a               
 person is highly infectious with pulmonary tuberculosis.  He added            
 there is an effective drug which totally eliminates the                       
 infectiousness and there's an accurate test to both detect the                
 infectiousness as well as detect when the infectiousness goes away.           
 He added it is their hope to soon have some drugs and weapons that            
 will be able to eliminate infectiousness.  He said, "The state of             
 being HIV positive is one where not only is it not infectious                 
 during the whole period of many years, but unlike tuberculosis                
 where if I had tuberculosis I could give it to you in just our                
 discussion regardless of your behavior.  With HIV, just my own                
 behavior in the absence of another criminal offense, such as forced           
 criminal sexual penetration or rape or some form of assault, you              
 would not be at risk of getting HIV regardless of my HIV status and           
 infectiousness because it is not transmitted to you by the air or             
 easily like tuberculosis."  He didn't totally disagree with the               
 concepts, but the different behaviors, medically and biologically,            
 of the risk factors and likelihood of transmission make a big                 
 difference in this disease versus others and he felt there were               
 (indisc.) consequences of criminalizing a diagnosis in the absence            
 of disease or potential infectiousness or in fact, potential harm.            
 This bill does also not require that a person be infected in order            
 to have the defendant found guilty of a criminal act.                         
                                                                               
 Number 1248                                                                   
                                                                               
 REPRESENTATIVE VEZEY said he appreciated Dr. Middaugh's comments,             
 but this bill does not make a crime out of social intercourse.  It            
 does establish that it is a crime to engage in sexual intercourse             
 or other form of bodily fluid transmission if a person knows their            
 body fluids may carry a contagion.  He said he related this more to           
 rabies than to tuberculosis or a lot of other diseases.  He added             
 we would not allow a rabid person to wander in society and the                
 public would insist this person be removed from society.  He viewed           
 this as a tool which would allow us to remove from society this               
 infinitesimal small number of persons who are infected because                
 their social behavior is totally unacceptable.                                
                                                                               
 DR. MIDDAUGH said he agreed with that intent when the behavior is             
 unacceptable and removal is necessary.  He said, "I think the                 
 problem that I would view is that the consequences of this                    
 legislation could be very negative in terms of being able to both             
 identify and elicit partners from individuals infected and to work            
 with them to identify their contacts and that the likelihood that             
 we would be able to then effectively use the legislation to achieve           
 a goal, which is to try to remove individuals who may be wilfully             
 attempting to infect others, would be a very small benefit compared           
 to the existing legislation that we have which does still provide             
 in our existing legislation for weighing, as you heard before, the            
 likelihood of risk and consequences."  The concern with this bill             
 is that it does not do that.                                                  
                                                                               
 CO-CHAIR TOOHEY asked if there were further questions for Dr.                 
 Middaugh.  Hearing none, she called on Jayne Andreen to testify.              
                                                                               
 Number 1398                                                                   
                                                                               
 JAYNE ANDREEN, Executive Director, Council on Domestic Violence &             
 Sexual Assault, Department of Public Safety, expressed the                    
 council's concern with CSSB 91(HES).  She said last year one of the           
 strongest concerns the council had related to the potential                   
 transmission of the mother to an unborn fetus whether or not she              
 knows that she is an HIV carrier.  She pointed out that issue has             
 been dealt with on page 1, line 12.  She stated this is a difficult           
 bill and it's difficult to listen to the testimony, but basically             
 the council feels that current offenses covered under this bill can           
 already be charged under state law.  She echoed the concern                   
 expressed that this legislation would decrease the amount of                  
 voluntary testing that would take place for people throughout                 
 Alaska.  She said it was interesting to note how conversations have           
 a tendency to "mushroom off" when discussing bills, and as the                
 council was discussing this bill, one of the issues that came up              
 was sexual assault victims and the potential risk they face being             
 exposed to HIV.  She said that issue had been discussed before the            
 legislature previously and currently there is legislation which               
 gives the victim the opportunity to have the alleged offender                 
 tested.  The council proposed, for future reference, having some              
 type of aggravator added for sexual offenses when the offender                
 knows he/she is an HIV carrier.                                               
                                                                               
 Number 1475                                                                   
                                                                               
 REPRESENTATIVE VEZEY said he finally understood that the assumption           
 exists that fewer people will get tested for HIV if they think it             
 might be associated with a crime.  According to the legal experts             
 however, it's already a crime to recklessly expose another person             
 to HIV, so he didn't think anything would change in that regard.              
 He added that it kind of defies logic that we know for a medical              
 fact that drugs are available currently that will extend the life             
 of AIDS patients and will reduce symptoms and side effects of the             
 disease.  He questioned if people would knowingly forego the                  
 possibility of meaningful medical treatment to avoid the                      
 possibility of criminal prosecution for something they can already            
 be prosecuted for?  It just didn't make any sense to him.                     
                                                                               
 MS. ANDREEN said that is one of the council's concerns and there is           
 no way to gauge what the outcome would be.  She said, "The concern            
 I think primarily is the way it currently exists, there isn't                 
 anything in the statutes that says if you are HIV positive and you            
 have unprotected sex with someone and don't tell them about it, you           
 would be charged with these offenses.  It's when it actually is put           
 -- you know, it's under existing assault and attempted murder and             
 murder offenses that a person could be charged at this time.  When            
 you have a bill that actually lists out that if you are HIV, this             
 is what can happen to you if you do X, Y, Z is what the concern is,           
 is that it will really focus the attention in for people."                    
                                                                               
 Number 1589                                                                   
                                                                               
 SENATOR TAYLOR remarked that of all the people who testified on the           
 Senate side who testified that they feared a reduction in the                 
 number of people coming forward to be tested, not one of the people           
 who so testified called one state where this has been criminalized            
 and asked them what happened; Senator Taylor had and no one single            
 state has seen any decline in testing after passing and                       
 criminalizing conduct where a person fails to notify their partner.           
 He affirmed that is all that is required - just notify your partner           
 before engaging in sex with them.   For those people who testify              
 there will be a "chilling effect" he would like to see their                  
 statistics, because he was not able to find any such statistics               
 from the 22 different states he contacted.                                    
                                                                               
 Number 1643                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG was curious and disturbed by Ms. Andreen's            
 comment regarding an aggravator provision in terms of developing              
 statutes relating to domestic violence victims.  He inquired if Ms.           
 Andreen was implying that victims of domestic violence should                 
 receive special statutory treatment as opposed to something like              
 this.                                                                         
                                                                               
 MS. ANDREEN hoped that wasn't what she had said and thanked                   
 Representative Rokeberg for allowing her to clarify.  What she had            
 been talking about in cases of sexual assault, sex offenses, was              
 that if the offender knows that he/she is HIV positive, that an               
 aggravator be written into the statute that could be reviewed at              
 the time of sentencing to increase the sentence.                              
                                                                               
 REPRESENTATIVE ROKEBERG thought that was what this bill was all               
 about.                                                                        
                                                                               
 CO-CHAIR TOOHEY said no, she thought it was Representative Kott's             
 bill last year that addressed the person who knowing had HIV and              
 was convicted of sexual assault.                                              
                                                                               
 REPRESENTATIVE ROKEBERG asked if that had been enacted?                       
                                                                               
 CO-CHAIR TOOHEY responded it was passed.                                      
                                                                               
 Number 1710                                                                   
                                                                               
 LYNN STIMLER, Executive Director, American Civil Liberties Union of           
 Alaska, said the ACLU opposes CSSB 91(HES).  She wanted to point              
 out why the ACLU thinks this legislation is particularly vague and            
 over broad, so that people with common intelligence can't really              
 guess at the meaning of it.  She noted that in the statute,                   
 intimate contact can mean any contact, because it's sexual                    
 penetration or contact in which the body of one person and the body           
 fluid of another in a manner that could result.  She said,                    
 "Potentially that raises the issue because HIV has been detected in           
 minute amounts in saliva, perspiration and tears -- it raises the             
 issue of whether an athlete - a young high school student whose               
 gotten HIV and was participating in sports and got a bloody nose,             
 would he be theoretically possible and under this statute, I think            
 it would be grounds for prosecution, that the intimate contact                
 provision if an HIV positive high school athletic was playing in a            
 field."  She questioned if all HIV people should be quarantined               
 from all athletic activity under this statute?  The New England             
 Journal of Medicine in 1987 said it is unrealistic to require proof         
 with absolute certainty that HIV is not transmitted in certain                
 ways, which means because we don't know, this statute is on its               
 face vague.  The other issue the ACLU wished to address was that              
 the National Academy of Sciences in 1986 said any admonition to               
 avoid intimate bodily contact and the exchange of bodily fluid can            
 convey at best a vague message; it is not specific enough.  The               
 ACLU believes that because the point of testing is for people who             
 don't know about their status, to come in and get information and             
 counseling which can keep them from transmitting this virus, it's             
 very important that testing be as open as possible.  The ACLU does            
 not agree with Senator Taylor in that they feel Hepatitis B and               
 tuberculosis are being tested for the very purposes that they are             
 not criminalized.  Additionally, this bill shifts the burden of               
 proof.  Normally the state of Alaska has to prove every element of            
 a crime which is part of the due process guarantee.  In this bill,            
 instead of the state having to prove the defendant did not inform             
 their partner, the defendant has to somehow prove that he did.  She           
 further commented she believes CSSB 91(HES) violates privacy and              
 equal protection.                                                             
                                                                               
 Number 1898                                                                   
                                                                               
 RACHEL KING, Board Member, Alaskan AIDS Assistance Association,               
 testified from Anchorage that she had been involved with AIDS                 
 education for the past 10 years.  She has seen a tremendous amount            
 of fear and loathing around the whole issue of AIDS and HIV.  She             
 believes that two big fears - the fear of homosexuality and the               
 fear of IV drug use has kept education from going forward as it               
 should.  She stated that education is the best weapon against AIDS            
 and the board's biggest concern with CSSB 91(HES) is that the                 
 provision that requires people to know they are infected with HIV             
 will in fact prevent people from wanting to find out their HIV                
 status.  Senator Taylor had pointed out that in doing surveys from            
 other states the rate of testing did not decline due to the                   
 criminalization of HIV; however, she said that didn't mean that               
 more people wouldn't have gotten tested had those laws not gone               
 into effect.  Testing is on the rise everywhere and perhaps it                
 would have continued to go up in those states.                                
                                                                               
 CO-CHAIR TOOHEY asked Anne Carpeneti from the Department of Law to            
 present her testimony.                                                        
                                                                               
 Number 1981                                                                   
                                                                               
 ANNE CARPENETI, Assistant Attorney General, Criminal Division,                
 Department of Law, testified there are two reasons the Department             
 of Law opposes CSSB 91(HES).  First, the department agrees with               
 Barbara Brink in that this behavior is already covered by other               
 criminal statutes, beginning with attempted murder in the first               
 degree which is an unclassified felony.  Secondly, the people who             
 are in risk groups who fear the diagnosis, wouldn't be tested and             
 this would not encourage testing by criminalizing a person who                
 knows that he/she is infected by their behavior, but not                      
 criminalizing the behavior of people who don't know.                          
                                                                               
 Number 2024                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG commented that Ms. Brink had spoke to the             
 litany of assault statutes and asked if there was anything                    
 specifically defined in the assault statutes which addresses the              
 transmission of the HIV virus.                                                
                                                                               
 MS. CARPENETI responded the statutes do not specify HIV                       
 transmission.                                                                 
                                                                               
 REPRESENTATIVE ROKEBERG asked how those statues would have any                
 deterring effect on this type of activity if they are not specific?           
                                                                               
 MS. CARPENETI said they are specific in terms in outlawing the                
 egregious behavior that Senator Taylor has described; that being a            
 person intentionally going around having sex with people and                  
 transmitting the virus.  She added that Alaska's statutes don't               
 specify generally a particular activity, but rather prohibit                  
 general activity.                                                             
                                                                               
 Number 2057                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG commented he was not familiar with the                
 state's criminal statutes, but he wondered if Alaska has a felony             
 aggravated assault statute.                                                   
                                                                               
 MS. CARPENETI responded the state has felony assault statutes.                
 Assault in the first, second and third degree are felonies and                
 assault in the fourth degree is a misdemeanor.                                
                                                                               
 REPRESENTATIVE ROKEBERG inquired about assault as opposed to                  
 battery.                                                                      
                                                                               
 MS. CARPENETI said the criminal code revision committee did away              
 with the distinction between battery and assault.                             
                                                                               
 REPRESENTATIVE ROKEBERG asked if assault in the state of Alaska is            
 physical contact?                                                             
                                                                               
 MS. CARPENETI said it includes battery.                                       
                                                                               
 Number 2090                                                                   
                                                                               
 REPRESENTATIVE DAVIS asked if any of the other 20+ states had                 
 existing statutes they believed would have covered this type of               
 behavior?                                                                     
                                                                               
 MS. CARPENETI said she didn't know, but she would be happy to work            
 with the sponsor to obtain that information.                                  
                                                                               
 SENATOR TAYLOR commented that every state had the same generic type           
 assault, intentional murder - everything that Alaska has, and every           
 state decided they couldn't keep a prostitute off the street or               
 couldn't convict under those statutes.                                        
                                                                               
 CO-CHAIR TOOHEY asked if the committee had any further questions.             
                                                                               
 Number 2132                                                                   
                                                                               
 SENATOR TAYLOR asked if we still intend to require consent for                
 sexual acts in the state.  Also, could he give his consent to a               
 sexual act with someone if he does not know what they may bring               
 with them?                                                                    
                                                                               
 CO-CHAIR TOOHEY speaking as a nurse said any woman or any man in              
 this state or any state that has sex without being protected                  
 deserves to get sick.  Anyone that has sex in this day and age with           
 an unknown partner, will get some type of disease.                            
                                                                               
 SENATOR TAYLOR commented that Co-Chair Toohey had used the word               
 "unknown."  He questioned if a wife was consenting to have sex with           
 a husband who finds out that he has HIV but fails to notify her?              
 He didn't think so, because the wife didn't know the full facts.              
 When that husband lies and misleads and does it intentionally,                
 knowing he has the illness, yet chooses to go forward with the act,           
 the wife then becomes a nonconsensual victim.  In Senator Taylor's            
 opinion it is very close to rape, but our laws don't cover it.                
 That is why this bill is before the committee.                                
                                                                               
 CO-CHAIR TOOHEY asked if there were any further questions.  Hearing           
 none, she closed public testimony.                                            

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