Legislature(1995 - 1996)

03/31/1995 01:03 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 CSHB 199 - CRIMINAL TRANSMISSION OF HIV                                     
                                                                               
 Number 110                                                                    
                                                                               
 REPRESENTATIVE SCOTT OGAN, bill sponsor, introduced HB 199.  He               
 stated this bill would make it illegal for a person who knowingly             
 has HIV and commits an act known to transmit HIV or AIDS to another           
 person, commits a class A felony.  Acts that will be illegal will             
 include sexual contact, deliberately exposing someone to bodily               
 fluids, donating organs or blood, or using non-sterile devices and            
 needles.  The reality of the issue is that if a person is                     
 unknowingly exposed to this virus, it is likely to be a death                 
 sentence.  People infected with HIV have a grave responsibility to            
 the people they interact with.  This law would provide recourse for           
 people involuntarily exposed to HIV as well as provide protection             
 to unsuspecting people with high risk behaviors.  The largest                 
 single group acquiring this disease today is young people, and                
 often they are reckless.  Once the word gets around that HIV                  
 transmission is a crime, this reckless behavior will hopefully                
 decline dramatically.                                                         
                                                                               
 REPRESENTATIVE GREEN asked if we were talking about version G of              
 the committee substitute (CS).                                                
                                                                               
 REPRESENTATIVE BUNDE answered, yes, the State Affairs CS.                     
                                                                               
 Number 175                                                                    
                                                                               
 DALE GOODLAW, Blood Bank of Alaska, Incorporated, testified via               
 teleconference.  He had serious concerns as the bill relates to               
 blood donors throughout the state, and the donation of blood in               
 general.  We have donors here that donate blood for their own                 
 surgery.  These donors pre-deposit their blood for use during their           
 surgery, and that can be up to five pints of blood.  This bill                
 would prohibit that from occurring, therefore we would not be                 
 rendering health care to our patients.  It has been medically                 
 justified that these patients seem to do better when they receive             
 their own blood.  Another concern is the question of what exactly             
 qualifies as a positive test for HIV.  Here, at the blood bank, we            
 are under federal guidelines.  We test all of our blood for the HIV           
 antibody.  We first apply a screening test, followed up by a                  
 Western Blot Test.  The Western Blot we have to use is a Food and             
 Drug Administration (FDA) licensed test.  If there is any banding,            
 the result means either indeterminate or a true positive.  The                
 banding has to follow a certain pattern before they are allowed to            
 call it indeterminate.  But if there is any banding that could                
 result in a false positive, then they have to call that                       
 indeterminate.  At that point, based on this bill, it would show              
 that the totality of the evidence would fall on transmitting the              
 HIV virus.  At what point in time would the donor fall into that              
 category?  That is the question.  We follow up on the Western Blot            
 tests later, to determine if the tests have turned to a true                  
 positive.  During that six month period, that donor would have had            
 knowledge that he may be infected with HIV.  Chances are he is not,           
 because we do have a lot of false positive banding with this                  
 Western Blot Test.  As high as 15 percent of all healthy                      
 individuals will show some banding on a Western Blot.  During this            
 six month waiting period, would this donor be required to notify,             
 for example, his dentist, that he may be infected with the HIV                
 virus?  These are questions that need to be addressed within this             
 bill for the protection of our blood donors and the general public            
 who contribute to the blood bank to supply our state's needs.                 
                                                                               
 Number 280                                                                    
                                                                               
 REPRESENTATIVE AL VEZEY asked if this would discourage people from            
 giving blood.  He does not see any criminal activity or                       
 restrictions associated with giving blood in the bill.  Is the                
 concern here that it may be an intimidating factor to somebody who            
 wants to donate blood?                                                        
                                                                               
 MR. GOODLAW answered that yes, it would be intimidating.  There are           
 restrictions placed on donors right now, as a result of federal               
 activity through the FDA.  We have a means of pinpointing high risk           
 persons by going back to their past medical history, as well as               
 their current lifestyle, and past lifestyles as well.                         
 There is a risk that these donors may not be truthful on the                  
 questionnaires we give them.  We have worked very hard not to get             
 people into the center just for the purpose of being tested for               
 HIV.  We work very closely with the Department of Health for the              
 purpose of establishing alternative testing sites that we can refer           
 people to.  In addition to those restrictions, more importantly, we           
 will be adding one more restriction on top of that.  We would be              
 obligated to inform these donors that a positive test result, may             
 in fact result in criminal prosecution.  They may be criminally               
 investigated based on these test results.                                     
                                                                               
 REPRESENTATIVE VEZEY asked why they would be criminally                       
 investigated.                                                                 
                                                                               
 MR. GOODLAW gave the analogy of a person whose test may come back             
 as an indeterminate Western Blot.  An indeterminate is used to                
 follow a patient for the course of their HIV infectivity.  If there           
 is no advanced banding during that six months, we can rest assured            
 that the banding will not progress any further, based on the                  
 resources we have.  However, there is a possibility that the                  
 banding will actually result in a true HIV.  We cannot guarantee              
 that is not going to happen.  The way we counsel our donors after             
 we inform them of their indeterminate results, is to make contact             
 with these specialists.  From that point is where that six month              
 waiting period would actually come into play.  If these people do             
 develop the HIV virus and can actually transmit the virus, then               
 they would have had knowledge as early as six months prior to that,           
 that the possibility was there.                                               
                                                                               
 REPRESENTATIVE VEZEY asked what percentage of people donate blood.            
                                                                               
 MR. GOODLAW answered that it is about 3 percent in Alaska.                    
                                                                               
 REPRESENTATIVE VEZEY thought, then, that the percentage of people             
 whose tests showed some kind of positive banding would be very                
 small.  Are there really that many people in this category that a             
 blood donor would conceivably be guilty of a criminal activity?  He           
 felt anyone who was told that there was a possibility that they had           
 HIV would first think very carefully of how they interrelated to              
 other people.                                                                 
                                                                               
 MR. GOODLAW said there are certain bandings that are truly not                
 related to HIV activity, but we would not accept blood from those             
 types of persons.  The blood supply is still protected, but their             
 concern is for the donor.  With that knowledge of an indeterminate            
 HIV, that can progress on to a positive Western Blot.  During that            
 six month period, 15 percent of not truly infected people will show           
 a positive banding on that blot.  They never will be HIV positive,            
 but this one particular band will be with them for the rest of                
 their lives.                                                                  
                                                                               
 Number 425                                                                    
                                                                               
 REPRESENTATIVE JOE GREEN asked if a person is normally notified of            
 this banding pattern and put on standby for six months.                       
                                                                               
 MR. GOODLAW answered that no, once a person is determined to have             
 any banding in the blot test, they cannot come back and donate                
 blood except for their own use.  His concern is that this                     
 legislation would prohibit that donor from coming back into the               
 center to donate blood for autologous use.  Today, we do allow HIV            
 positive individuals to donate blood for their own use.                       
                                                                               
 Number 450                                                                    
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY asked if his concern was that these             
 people may not return for the confirmation that they were indeed              
 infected.                                                                     
                                                                               
 MR. GOODLAW answered that no, that was not it.  Once we have                  
 determined an indeterminate Western Blot, we turn them over to the            
 infectious disease specialist.  Our primary concern is with                   
 autologous donors, and under Section 7.66.160(2), it says                     
 "transfer, donate or provide the blood tissue..." et cetera.  Now,            
 autologous donation is still a blood donation.  Though, when we do            
 get the HIV positive individual in here to donate for their own               
 surgery, this bill would prohibit the individual from completing              
 that act, even though it is for themselves, and will be                       
 appropriately tagged and marked for use only by this person.                  
                                                                               
 REPRESENTATIVE VEZEY asked what citation he was talking about.                
                                                                               
 MR. GOODLAW said he was referring to SB 91.                                   
                                                                               
 REPRESENTATIVE VEZEY said he was looking at page 1, line 12-14                
 which makes it a felony to transfer to another.  There are vast               
 differences between the Senate bill and this House bill because               
 they have different sponsors, but we are not looking at the Senate            
 bill.                                                                         
                                                                               
 CHAIRMAN PORTER asked Mr. Goodlaw if he had the House bill.                   
                                                                               
 MR. GOODLAW stated he only had pages 2 and 3.                                 
                                                                               
 CHAIRMAN PORTER said they were referring to page 1, so that might             
 be where the misunderstanding lies.                                           
                                                                               
 Number 500                                                                    
                                                                               
 MARGI MOCK, Supervisor, Public Defender Agency, testified via                 
 teleconference.  She felt the intent behind the bill is good, with            
 the efforts to discourage transmission of the HIV virus.  This is             
 a positive step, but she did not feel that criminal law was the               
 best means to achieve the goal.  Based on the years she has been              
 working in the Public Defender Agency, penalizing this behavior               
 criminally, and providing for a five year presumptive jail sentence           
 could actually have a negative impact on the struggle to contain              
 HIV and AIDS.  Every health professional she has heard testifying             
 on this bill has concerns that this would actually discourage                 
 people from being tested.  Though health care is not her area of              
 expertise, health care professionals seem to feel the best way to             
 prevent the spread of HIV is with behavior modification through               
 education.  From a legal point of view, this bill will actually               
 discourage testing.  It has been her experience that if you punish            
 the behavior, either by incarceration or by taking children away              
 from pregnant mothers who have substance abuse problems, the result           
 is that you simply stop pregnant mothers from seeking prenatal                
 care.  Punishing the behavior would provide the opposite result of            
 what the state wants to achieve.  We have existing criminal                   
 statutes in Alaska that provide adequate means to punish someone              
 who either intentionally or recklessly transmits HIV.  Those carry            
 the same penalty as this proposed bill does.  You are convicted of            
 assault if you cause physical injury when you knowingly engage in             
 conduct or other circumstances that manifest indifference to the              
 value of human life.  That is exactly what we are talking about               
 here.  If someone knowingly infects another person, they can                  
 actually be prosecuted for attempted murder.                                  
                                                                               
 Number 570                                                                    
                                                                               
 DAVID TYLER, Alaska Fire Chiefs, testified via teleconference.  He            
 asked why we were limiting this to HIV when tuberculosis and                  
 hepatitis are equally real problems.  He had an emergency response            
 crew involved in a domestic dispute where there were knives                   
 involved, and these people did not want help at all.  Two troopers            
 and three medics were exposed to blood that night.  These people              
 were slinging their bloody bandages across the room that night as             
 weapons, and he was not able to get assault charges filed or                  
 anything.                                                                     
                                                                               
 Number 600                                                                    
                                                                               
 DR. PETER NAKAMURA, Director, Division of Public Health, Department           
 of Health and Social Services, stated that the department is                  
 opposed to this bill or any similar legislation.  We are fully                
 convinced as public health people that this would discourage                  
 testing.  Though this activity has been criminalized in other                 
 states, and testing has not gone down in those states, the reason             
 testing is going up and will continue to do so, is that we are                
 requiring HIV testing for so many things these days.  For the very            
 high risk persons who we have to work with, those are the ones we             
 need to worry about cutting down exposure to the public, not the              
 majority of people who are infected with HIV.  The majority of                
 infected people are very responsible people.  They are not                    
 purposely out there exposing others to the disease.  By                       
 criminalizing it, and assuming that we would discourage testing,              
 we will not see those numbers reflected in the total number of                
 tests taken.                                                                  
                                                                               
 DR. NAKAMURA also stated that if an individual is already infected            
 with HIV, and if they expose another, and the individual exposed              
 becomes infected, you have every provision in the world to                    
 prosecute that individual.  Apparently the concern is that when an            
 infected individual exposes themselves to another, and that                   
 individual does not become infected, in reality you are never going           
 to know anyway.  Assuming that this is a consensual sexual act,               
 there is not going to be a complaint raised by the person who is              
 exposed.  He will never know, and so this bill in itself would not            
 increase your probability of identifying individuals who are                  
 exposing others without identifying their status.                             
                                                                               
 DR. NAKAMURA suggested a change in wording of the bill that would             
 make it less damaging.  On page 1, number 11, if the term                     
 "excluding perinatal transmission" were added to that statement,              
 "deliberately exposes a person's bodily fluid to the body of                  
 another person in a manner that could result in the transmission of           
 HIV, excluding perinatal transmission."  As stated, if a mother is            
 pregnant, has HIV and transmits the virus to her fetus, that would            
 be a criminal act.  The same would be true on line 14 where you               
 would add the same wording.                                                   
                                                                               
 DR. NAKAMURA made another suggestion on page 2, lines 6 and 7,                
 where it says, "the parties to the intimate sexual contact were               
 legally married at the time of contact."  He did not see where                
 legal marriage would have any significance to this issue at all, in           
 terms of consensual sexual acts.  From lines 14 to 19, we feel that           
 whole sentence would be unnecessary, since any individuals working            
 with patients who are bleeding or have bodily fluid that could be             
 exposed to others, are all taught how to handle individuals in                
 these circumstances.  You never know when an individual does not              
 meaningfully expose another person, whether they are HIV positive             
 or not.                                                                       
                                                                               
 CHAIRMAN PORTER pointed out that those lines Dr. Nakamura wanted to           
 delete are affirmative defenses.                                              
                                                                               
 DR. NAKAMURA just felt they were not necessary.                               
                                                                               
 REPRESENTATIVE TOOHEY asked Dr. Nakamura if they had the ability to           
 stop or prosecute criminal transmission of HIV.                               
                                                                               
 DR. NAKAMURA deferred that question to those better informed in               
 law.                                                                          
                                                                               
 Number 700                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked what the state of research was for           
 the definition of sexual contact in the transmission of AIDS.  This           
 section on page 3 sounds like the sort of contact would include               
 general embracing and contact with bodily fluids, which he assumed            
 includes saliva.  What information exists on the transmission of              
 AIDS through saliva?                                                          
                                                                               
 DR. NAKAMURA answered that there have been a number of studies                
 showing that there has never been a demonstrated transmission of              
 the virus through saliva.  They have injected the virus into                  
 saliva, but they feel that there is something in the saliva which             
 seems to have the ability to keep out or at least lower the                   
 probability of transmission.  They have never been able to detect             
 a case where that has ever happened.                                          
                                                                               
 REPRESENTATIVE FINKELSTEIN asked if Dr. Nakamura's use of the term            
 `bodily fluids' would include saliva.                                         
                                                                               
 DR. NAKAMURA answered that it would include saliva and excrement.             
                                                                               
 REPRESENTATIVE TOOHEY asked if that also includes feces and urine.            
                                                                               
 DR. NAKAMURA answered yes, it does.                                           
                                                                               
 REPRESENTATIVE TOOHEY then asked what would happen to HIV/AIDS                
 babies that are being adopted to people who will care for them                
 until they die.  Does that make the child a criminal because there            
 is a possibility of transmitting the virus?                                   
                                                                               
 DR. NAKAMURA thought that was a legal question.                               
                                                                               
 REPRESENTATIVE TOOHEY said somebody knows, even though it may be a            
 far fetched question.                                                         
                                                                               
 MARGARET BERCK, Attorney, American Civil Liberties Union (ACLU),              
 said the ACLU is opposed to this legislation, specifically on four            
 points.  One concern is that conduct addressed in this bill can be            
 prosecuted under existing law.  She had one client who appeared to            
 have been infected by another individual.  Ms. Berck brought that             
 to the attention of the District Attorney's Office and that young             
 woman was charged with a criminal offense.                                    
                                                                               
 MS. BERCK mentioned secondly, that the legislation that would make            
 this a class A felony offense would essentially discourage                    
 individuals from determining their status.  They would not seek               
 medical assistance or be tested.  Finally, there are privacy issues           
 involved, both for the defendant and the victims if this were to              
 become law.  If she were defending an individual under this                   
 offense, she would like to know an awful lot of information about             
 that victim.  The victim's privacy rights would come into play                
 during prosecution under such a statute.                                      
                                                                               
 MS. BERCK stated they believe that the amendments recommended by              
 Dr. Nakamura would make the bill more palatable.  She sees no                 
 purpose in the section which would provide an affirmative defense             
 to marital status.  If this bill is designed to encourage people to           
 be honest in their intimate sexual relations, somebody who marries            
 you and does not tell you that they have HIV, would be given                  
 essentially a free ride.  The bottom line with this legislation is            
 that it is going to end up killing more people than it saves.                 
                                                                               
 Number 800                                                                    
                                                                               
 DEAN GUANELI, Assistant Attorney General, Criminal Division,                  
 Department of Law, said that four years ago, the Department of Law            
 received an inquiry from the federal government asking whether or             
 not the criminal laws in Alaska could be used to punish someone who           
 had tried to spread the HIV virus.  He could not remember the exact           
 circumstances.  It may have been due to a federal funding question,           
 but the department had to certify that Alaska laws in fact did                
 permit that.  He took a look at our laws at the time and concluded            
 that indeed, there were criminal laws on the books that would allow           
 prosecution.  Certainly if someone intended to pass the virus, and            
 tried to do it, that would be attempted murder, which would be a              
 rare circumstance though we have had a couple of cases in the                 
 prisons where prisoners have tried to bite the guards, saying they            
 have HIV.  Those situations have been dealt with in the prison                
 disciplinary context.  If someone is simply reckless, there is a              
 criminal law to cover that.  It is called "reckless endangerment"             
 and is a misdemeanor offense, punishable by up to a year in jail.             
 What this bill does is take the kind of conduct that would be                 
 currently prosecutable under a misdemeanor offense and elevate it             
 from a class A misdemeanor, maximum one year in jail, to a class A            
 felony with a maximum of 20 years in jail on a presumptive term for           
 a first offense.  In other words, a term that would be imposed at             
 five years.  What has to be asked is, "What are we gaining by                 
 elevating that level of offense from a class A misdemeanor to a               
 class A felony."  And on the other side, "What might we be losing?"           
                                                                               
 MR. GUANELI said you have heard testimony that this kind of law               
 would discourage people from being tested, because once they are              
 tested and they know that they have the HIV virus, then one of the            
 elements of the offense is already proven and it might be easier to           
 prosecute them.  He did not know whether that would, in fact,                 
 occur, but there is a risk that it will, and you have to ask                  
 yourselves whether that risk is worth what we are getting in                  
 exchange.  With class A misdemeanor penalties of up to a year in              
 jail, a person who engages in this kind of conduct may or may not             
 get any jail time, but there is certainly a likelihood of being put           
 on probation.  Last year the legislature passed a provision                   
 increasing the amount of probation up to ten years.  At least the             
 justice system would then have some measure of control over this              
 person.  He thought that is what we really want to do, is to                  
 control the behavior without discouraging voluntary testing.  If              
 you end up with a case like this that is prosecuted and someone               
 goes to jail for ten years, you also have to ask yourself what the            
 cost would be to the state.  You are dealing with somebody who is             
 infected and if it develops into full blown AIDS, you have another            
 person in the correctional system who is running up huge bills for            
 the state to be treated for the AIDS virus, when that person could            
 be treated just as well, if not better, on the outside and at                 
 certainly less cost to the state.                                             
                                                                               
 MR. GUANELI felt there were some problematical aspects of this                
 bill, one being the affirmative defense of being married, as was              
 mentioned.  He felt that someday that circumstance may happen,                
 where someone gets married, and one spouse has not let the other              
 know that they have AIDS.  In an instance like that, you might                
 want to prosecute under the reckless endangerment misdemeanor                 
 offense.  Under this bill, we would not be able to do that.  This             
 bill specifically governs that conduct.  It creates an affirmative            
 defense and so we simply would not be able to prosecute that                  
 person.                                                                       
                                                                               
 MR. GUANELI spoke of the provision that deals with deliberately               
 exposing your bodily fluids to another.  That should be looked at.            
 How realistic is it?  Are people going to say, "I have HIV," when             
 they start bleeding?  We have a situation in society where being a            
 homosexual is looked down upon, where there is a severe social                
 stigma for having the HIV virus, and to expect that when someone is           
 injured in an accident, or goes in for medical care, that they are            
 going to say, "Stay away from me, I have HIV."  He felt that was              
 simply unrealistic.  Take for example, Greg Luganis, who won the              
 gold medal for diving in the Olympics.  He injured his head in one            
 of his dives, and was sitting there trying to stem the flow of                
 blood and not telling anybody that he has HIV.  Does that mean he             
 has committed a class A felony, and that he ought to go to jail for           
 five years?                                                                   
                                                                               
 TAPE 95-39, SIDE B                                                            
 Number 000                                                                    
                                                                               
 MR. GUANELI felt the question should be raised as to whether or not           
 that is appropriate, or whether there may be some other way to take           
 care of the situation, and whether this is really a public health             
 problem and something that ought not to be a criminal justice                 
 problem.  He agreed with the public defender who testified about              
 the inability to control conduct through criminal justice means.              
 There is a lot of validity in what she said.  Because of the stigma           
 that has arisen because of this particular disease, it is                     
 unrealistic to think that people are going to act precisely in the            
 manner that this bill wants them to act.                                      
                                                                               
 REPRESENTATIVE TOOHEY expressed her fright at the possibilities HB            
 199 has.  She has very good friends who are hemophiliacs that are             
 children.  They have been infected, and this would make these                 
 children criminals.  This is going to make criminals of all of the            
 women in the villages who are being infected by their drunk                   
 husbands or boyfriends.  This is a very, very bad policy.                     
                                                                               
 REPRESENTATIVE FINKELSTEIN felt the same way.  This subject is a              
 very tough one to deal with because this is one of the saddest                
 circumstances we face in our society today.  These people have a              
 death sentence to start with.  He asked Mr. Guaneli how many people           
 in Alaska fall into the category of those who flagrantly try to               
 intentionally transmit the virus.                                             
                                                                               
 MR. GUANELI answered that he was not aware of any in Alaska that              
 have intentionally tried to transmit the virus.  He had heard of              
 specific individuals who do not seem to care, but in the couple of            
 cases they have been involved in, it seems as though their partners           
 are certainly aware of the high level of risk involved.  Because of           
 that, and because it was determined that it was consensual contact            
 with awareness of the facts, we were not able to handle those                 
 cases, and this bill does not change that because it talks about a            
 level of knowledge or awareness.  We are trying to address these              
 cases as public health problems, trying to address this circle of             
 people that might come into contact with this person, trying to               
 tell them what the consequences could be.                                     
                                                                               
 REPRESENTATIVE BUNDE asked about the earlier testimony about the              
 people intentionally flinging their bloody bandages around, and the           
 gist was that maybe this bill should be expanded to contain other             
 highly contagious medical problems.  You earlier mentioned reckless           
 endangerment, and he assumed that would apply to someone who                  
 purposely tried to hit someone else with their bloody bandage if              
 they knew they had hepatitis.                                                 
                                                                               
 MR. GUANELI answered yes, that would apply.  The reckless                     
 endangerment statute is not limited, and it covers any kind of                
 reckless conduct.                                                             
                                                                               
 REPRESENTATIVE BUNDE asked if that has ever happened.                         
                                                                               
 MR. GUANELI said he was not aware of any cases, other than the HIV            
 ones.  It is kind of difficult to prosecute someone for an airborne           
 disease, such as tuberculosis.                                                
                                                                               
 REPRESENTATIVE TOOHEY thought the fiscal note was not valid.  She             
 felt the cost would actually be much higher if you were paying                
 medical costs for incarcerated persons with AIDS.                             
                                                                               
 Number 250                                                                    
                                                                               
 REPRESENTATIVE OGAN said with regards to the statement that they              
 take special precautions in situations involving inmates with HIV,            
 he had a discussion with a former director of a prison yesterday              
 who said they do not really know who has AIDS and who does not.               
 They had a list that the prison guards just kind of passed around,            
 warning the guards to be careful of certain inmates.                          
                                                                               
 REPRESENTATIVE TOOHEY said they had testimony one day from the                
 Department of Corrections that said, yes, they did know how many              
 inmates have AIDS.  They test every inmate that goes into the                 
 prison system.  She may be wrong, but she was under the impression            
 that they know just how many HIV infected prisoners they have.                
                                                                               
 REPRESENTATIVE GREEN mentioned that we have a real social dilemma             
 on our hands.  If the frequency of AIDS is increasing, the system             
 we have now is failing.  We do not seem to have this problem with             
 other diseases such as hepatitis.  We do not allow murder because             
 it is fatal, but that certainly does not prevent murder.  We do               
 have a law against it.  He wondered what Dr. Nakamura saw as the              
 best approach to this problem if voluntary testing is a failing               
 situation.                                                                    
                                                                               
 DR. NAKAMURA corrected him.  He did not say it is a failing                   
 situation, it is kind of like dealing with a smoker.  First you               
 have to know that they are smokers before you can deal with them.             
 There are certain smokers who have a great deal of difficulty                 
 dealing with the problem, but if you persist and persist, there is            
 a very good likelihood that you can either reduce their level of              
 smoking, or get them to actually stop.  It is harder for some than            
 for others to stop smoking, but you cannot deal with the problem              
 unless you know that they are a smoker.  It is the same with HIV              
 and AIDS.  You deal with all populations in trying to stop it, but            
 you really do have to focus on that high risk group.  If these                
 people do not come in for testing because they are afraid they will           
 be classified as a criminal, then they will not come in for testing           
 and we will not know they have HIV.                                           
                                                                               
 REPRESENTATIVE TOOHEY said HIV in some of the villages is epidemic,           
 primarily among males.  With the high incidence of alcohol among              
 the Native population and among the female population as well,                
 there has been testimony that in 20 years we will have nobody left            
 in the villages because they will all be dead from HIV because of             
 the sexual relaxation of the Natives.  She did not want to label              
 anybody with promiscuity, because it is not promiscuity, it is part           
 of their culture.  With that attitude, plus the alcohol, child                
 abuse, and sexual abuse of children and women in the villages; if             
 we criminalize this, it is not going to do any good except put the            
 blame on the victim, because the victim will then be labeled as a             
 criminal once they get tested.  She said she is so opposed to this            
 because it is going to be more destructive than constructive, and             
 she is very frightened of it.                                                 
                                                                               
 DR. NAKAMURA said he had a great deal of respect for Representative           
 Toohey, and therefore hated to correct her, but fortunately we do             
 not have an epidemic in our villages.                                         
                                                                               
 REPRESENTATIVE TOOHEY added, "Yet."                                           
                                                                               
 DR. NAKAMURA said we are very fortunate.  The potential for great             
 transmission is there, primarily because of the small communities             
 involved.  He would not elude it to any difference in sexual                  
 practices, but there is no question that the potential is there for           
 massive spread and destruction.  Fortunately, at this point, we do            
 not have any major epidemics.  We do have the disease in the                  
 communities, that is true.                                                    
                                                                               
 CHAIRMAN PORTER asked if it takes an average of six months after              
 the time of being infected before you get a positive HIV test.                
                                                                               
 DR. NAKAMURA answered that it can vary but we say a minimum of six            
 months from the time of exposure until your last test, will give              
 you some level of comfort that you did not get infected.                      
                                                                               
 REPRESENTATIVE OGAN explained that the testimony by the district              
 attorney referred to assault in the first degree.  The difference             
 between assault in the first degree is that assault in the first              
 degree requires that the conduct actually caused physical injury.             
 With our bill, if a person has HIV or AIDS and knowingly engages in           
 a behavior that could do it, they are guilty.  If I have a gun and            
 put five bullets in it, and I spin it around and point it at Al's             
 head and I pull the trigger, and it is a lucky day for both of us             
 and it falls on the empty cylinder, I think it is a fair assessment           
 that I be charged with attempted murder.  The prisons may test                
 those people, but they are not telling the guards who are the ones            
 dealing with it.  Health professionals do want to know whether or             
 not they have someone in their care with HIV or some of these other           
 diseases.  We heard testimony that an unconscious patient would               
 become a criminal.  That is covered in this bill.  It says if "the            
 defendant made efforts that were reasonable considering the                   
 circumstances to inform the medical professional..."  So if he is             
 unconscious in a car wreck and not able to tell the professional,             
 that is an affirmative defense.                                               
                                                                               
 REPRESENTATIVE OGAN asked his aide, Allen Kingman, to address the             
 issue regarding marriage.                                                     
                                                                               
 ALLEN KINGMAN, Administrative Assistant to Representative Ogan,               
 stated there was testimony saying that if the parties were married,           
 this would permit the transmission of HIV without the victim                  
 knowing about it and being informed, but that is not the case in              
 our bill.  It requires that the spouse be notified that the                   
 infected person has HIV.                                                      
                                                                               
 CHAIRMAN PORTER noted that the testimony indicated it is an                   
 affirmative defense, so the offenses you described are off of the             
 books, so to speak, if the parties to the intimate sex were legally           
 married at the time of contact.  It does not say anything about               
 notification.                                                                 
                                                                               
 MR. KINGMAN answered that it is a three part test.  A legal                   
 marriage is one part of the test, and the other part of the test is           
 in (b), the person exposed knew that the defendant was infected               
 with HIV, knew that the contact could result in transmission of               
 HIV, and voluntarily participated in the contact with the                     
 knowledge.  Marriage alone does not give someone grounds to                   
 transmit HIV to an unwilling spouse.  That would be criminal in our           
 opinion.                                                                      
                                                                               
 REPRESENTATIVE TOOHEY said everyone who comes into the hospital and           
 has blood work done, gets tested for HIV.  The hospital knows that            
 unless that patient requests that information, they are not told,             
 so they could be walking out of there, being infected with HIV, and           
 the hospital is not allowed to tell them.  That is a privacy act.             
 The hospital, by law, cannot divulge that information unless it is            
 requested and the person goes through counseling, because it is so            
 devastating.                                                                  
                                                                               
 Number 640                                                                    
                                                                               
 REPRESENTATIVE BUNDE made a motion to adopt Amendment one, offered            
 by Representative Finkelstein, who had stepped out.  Amendment one:           
                                                                               
      Page 1, line 10:                                                         
           Delete "deliberately"                                               
           Insert "intentionally"                                              
                                                                               
 MR. GUANELI explained the effect of the amendment.  He was not                
 certain it would have a significant effect.  "Deliberately" is not            
 defined here, but it would probably be very close to                          
 "intentionally" in the Criminal Code.  It is our preference to use            
 terms that are defined.                                                       
                                                                               
 CHAIRMAN PORTER asked if the sponsor would have an objection to               
 that amendment.                                                               
                                                                               
 REPRESENTATIVE OGAN answered no.                                              
                                                                               
 CHAIRMAN PORTER stated that the amendment appears not to have a               
 major effect on the bill, except to add a term that has a                     
 definition, replacing a word having a speculative definition.                 
 Hearing no objection, Amendment One was passed.                               
                                                                               
 CHAIRMAN PORTER offered Amendment two for discussion.  This is                
 basically the request that Dr. Nakamura had.  It would preclude               
 from culpability, under this statute, the transmission of the virus           
 from a mother to her unborn child.                                            
                                                                               
 Amendment two:                                                                
                                                                               
      Page 1, line 11, following "HIV":                                        
           Insert ", excluding perinatal transmission"                         
                                                                               
      Page 1, line 14, following "another":                                    
           Insert ", excluding perinatal transmission"                         
                                                                               
 REPRESENTATIVE FINKELSTEIN returned.                                          
                                                                               
 REPRESENTATIVE OGAN took a neutral stand on the amendment.                    
                                                                               
 CHAIRMAN PORTER announced there was no objection.  Amendment two              
 was adopted.                                                                  
                                                                               
 REPRESENTATIVE FINKELSTEIN offered Amendment three, which there had           
 already been discussion on.  He explained that there are many                 
 situations that are similar to a marriage situation, in which you             
 could have a violation of this also, so he agreed with Dr. Nakamura           
 that marriage should not be a factor to be considered.                        
                                                                               
 Amendment three:                                                              
                                                                               
      Page 2, lines 6 - 7:                                                     
           Delete all material.                                                
                                                                               
 CHAIRMAN PORTER explained to Representative Finkelstein that while            
 he was gone, the committee discussed this.  It was determined that            
 (a) is not taken by itself, but (a), (b), and (c) are taken                   
 together because of the "and" on the end of line 10.  So if you               
 were legally married AND knew the defendant was infected, AND used            
 measures designed to protect, that would be the only exclusion.               
 So if you are against this proposition, you would probably want to            
 throw everything out, not just the one portion.                               
                                                                               
 REPRESENTATIVE FINKELSTEIN mentioned that if the amendment were to            
 be adopted, it would be a case where it was known AND the parties             
 used reasonable measures.  If you are in a circumstance where you             
 are doing that, regardless of whether you are married, we have to             
 remember that if (b) and (c) occurred, regardless of marital                  
 status, it would still be an affirmative offense.  Without                    
 objection Amendment three passed.                                             
                                                                               
 REPRESENTATIVE OGAN noted that he would have objected to that                 
 amendment.                                                                    
                                                                               
 CHAIRMAN PORTER guessed that he would have.                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN offered Amendment four:                            
                                                                               
      Page 1, line 9:                                                          
           Delete all material.                                                
           Insert "without the use of reasonable prophylactic                  
           measures designed to minimize the risk of transmission of           
           sexually transmitted disease;                                       
                                                                               
 REPRESENTATIVE FINKELSTEIN asked how you could possibly determine             
 in a court what it means to engage in contact in a manner that                
 could result in the transmission of HIV.  He had asked a question             
 recently about saliva, and there is tons of information on all of             
 this, and it is a constantly changing thing.  There are no absolute           
 answers in any of it about which manners of sexual contacts could             
 result in the transmission of HIV.  You would have to be a medical            
 expert in order to be on top of that.  The only level that occurs             
 to anyone involved in these things is the level represented in the            
 amendment, which is, "without the use of reasonable prophylactic              
 measures designed to minimize the risk."  That is where the state             
 of this science is at.  All you can do is use the measures that are           
 available that are designed to minimize the risk.                             
                                                                               
 REPRESENTATIVE OGAN wanted the committee to ask themselves a                  
 hypothetical question before voting on this amendment.  Would you             
 have sex with someone, if you knew they had HIV, using a                      
 prophylactic device?  I have made my case.                                    
                                                                               
 REPRESENTATIVE TOOHEY answered, "Thank you.  I certainly would.  It           
 has been done for years with married couples.  There was a test               
 done in Sweden on a group of couples who had been married for many            
 years and they have not transmitted it to their partners."                    
                                                                               
 CHAIRMAN PORTER asked if there was objection to the amendment.                
 Hearing none, Amendment four passed.                                          
                                                                               
 Number 830                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN noted that he would debate the bill, and           
 could not support it.                                                         
                                                                               
 CHAIRMAN PORTER gave a brief synopsis of what the current law                 
 allows.  Intentional is a class A felony.  Recklessly, and                    
 transferring it is a class B felony.  Knowingly having the contact,           
 but not necessarily transmitting it, is a class A misdemeanor.                
                                                                               
 TAPE 95-40, SIDE A                                                            
 Number 000                                                                    
                                                                               
 REPRESENTATIVE BUNDE said people could be charged for an assaultive           
 behavior under this, and he strongly opposed HB 199.  He pointed              
 out that they previously passed a bill which would let people with            
 AIDS out of prison early.  Now we want to take the people with AIDS           
 and put them back in.  He did not know where the revolving door               
 would stop, but it does appeal to his satirical sense of humor.               
                                                                               
 REPRESENTATIVE GREEN asked about the zero fiscal note, and he                 
 agreed with Representative Toohey that there should be a fairly               
 large fiscal note.  He asked if that question could be answered.              
                                                                               
 REPRESENTATIVE TOOHEY stated that the Department of Corrections               
 paid $587,000 for one longtime HIV positive inmate alone, in a two            
 month period.  Based on these types of cases, she felt they had not           
 been given a proper fiscal note from Corrections or Law.  We need             
 to be honest with this, and it will be expensive if we put them               
 back in prison.  She also felt that philosophically, David                    
 Finkelstein was right on.  If people will stop being tested because           
 they are afraid of being labeled a criminal, there are enough laws            
 on the books to prosecute those few who transmit the disease on               
 purpose.  We need to keep people coming in to be tested in order to           
 prevent the spread of the virus.  She feels very strongly about               
 this as a nurse.                                                              
                                                                               
 CHAIRMAN PORTER closed the hearing on HB 199 and asked what the               
 wish of the committee was.  HB 199 was held for lack of motion.               
                                                                               

Document Name Date/Time Subjects