Legislature(1995 - 1996)
03/31/1995 01:03 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.