Legislature(1995 - 1996)

03/14/1995 08:07 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HSTA - 03/14/95                                                               
 HB 199 - CRIMINAL TRANSMISSION OF HIV                                       
                                                                               
 REPRESENTATIVE SCOTT OGAN said they had done some work over the               
 weekend on HB 199 and handed out a committee substitute.                      
                                                                               
 CHAIR JAMES said the problem with introducing a committee                     
 substitute, then, was that the committee members needed time to               
 think over the changes.  She said they would hear the bill but                
 would probably hold it in committee.                                          
                                                                               
 REPRESENTATIVE OGAN agreed, then read the sponsor statement for HB            
 199.                                                                          
                                                                               
 "This bill is simple.  A person who knowingly has HIV and                    
 commits an act that is known to transmit HIV to others,                       
 is guilty of a Class A felony.                                                
                                                                               
 "Acts that will be illegal will include sexual contact,                      
 deliberately exposing someone to bodily fluids, donating                      
 organs or blood, and using nonsterile devices and                             
 needles.                                                                      
                                                                               
 "The reality of this 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.  There                       
 are many people with high risk behaviors infected with                        
 HIV.  These people continue to engage in this behavior,                       
 which is sentencing unknowing victims to death.  Reckless                     
 disregard for another person's life is a crime in any                         
 other case.  To deliberately infect someone with HIV                          
 should be a crime in Alaska.  To know one's self is                           
 infected, and continue to engage in high risk behaviors                       
 should be legally considered a deliberate act of                              
 attempted murder.                                                             
                                                                               
 "This law would provide some recourse for people                             
 involuntarily exposed to HIV, as well as provide some                         
 protection to unsuspecting people with high risk                              
 behaviors.  The largest single group of people acquiring                      
 this disease is young people.  Often they are impulsive                       
 and reckless.  Once the word gets around that HIV                             
 transmission is a crime, this reckless behavior should                        
 dramatically decline.                                                         
                                                                               
 Number 103                                                                    
                                                                               
 REPRESENTATIVE BRIAN PORTER asked if Representative Ogan could tell           
 the committee what the differences were in the CS.                            
                                                                               
 Number 110                                                                    
                                                                               
 REPRESENTATIVE OGAN said that on page 2 of the CS, line 31, they              
 added "or another identified caustic agent of Acquired Immunity               
 Deficiency Syndrome."   The reason for this addition was that they            
 worry about mutations of this virus, and that any other viruses               
 discovered in the future, besides HIV, are also covered in the law.           
 Page 3, line 2, gave a definition to intimate sexual contact.                 
 Sexual contact means "Sexual penetration or any sexual contact in             
 which the body of one person is exposed to the body fluid of                  
 another."  They based these changes on conversations Allen Kingman            
 had with Illinois prosecutors, and others who have had a similar              
 law on their books.   He noted that the Illinois bill was                     
 challenged in the Illinois Supreme Court, and they appealed it to             
 the U.S. Supreme Court.  The U.S. Supreme Court would not hear it,            
 so it has withstood the constitutional test.  He thought it would             
 be prudent to include more descriptive language so there would be             
 less possibility of somebody challenging it.  They included the               
 Compensation Victims of Crime Compensation Board and added criminal           
 transmission of HIV to that list.                                             
                                                                               
 Number 162                                                                    
                                                                               
 REPRESENTATIVE ED WILLIS asked what other states besides Illinois             
 have this legislation in law now.                                             
                                                                               
 ALLEN KINGMAN, Legislative Aide to Representative Ogan, answered              
 Representative Willis's question saying there are at least 26 other           
 states with a statute similar to HB 199 on their books.                       
                                                                               
 CHAIR JAMES recognized Barbara Brink on teleconference.  Ms. Brink            
 asked to be heard by telephone from Anchorage to answer a question            
 she was unable to answer at the last meeting.                                 
                                                                               
 Number 218                                                                    
                                                                               
 BARBARA BRINK, Deputy Public Defender, Department of                          
 Administration, answered a question she had been asked with regard            
 to what laws Alaska has on the books that provide some sort of                
 penalty for failure to abide by a quarantine.  The question was               
 asked in the context of a smallpox quarantine.  In researching                
 this, Ms. Brink found there was a law that provides for a                     
 quarantine in the case of active pulmonary tuberculosis; AS                   
 18.15.136.  It says if a person is extremely infectious and no                
 other reasonable means can be provided to prevent other people from           
 being exposed, the infected person can be quarantined.   A                    
 violation of a quarantine can be charged as a Class A Misdemeanor,            
 and the sentence can be up to one year in jail and a $5,000 fine.             
                                                                               
 MS. BRINK knew of only one actual case when this quarantine law was           
 used.  The need to use the law arose over a case of tuberculosis              
 this fall in Kotzebue.  She said there are problems with the law,             
 for it does not provide for a hearing and an opportunity to contest           
 the question about whether a quarantine is appropriate.  The State            
 Department of Epidemiology only uses the law as a last resort,                
 however.  Its use is to encourage medically safe behavior.  This              
 was the reason the law was used in Kotzebue, to insure that an                
 individual received their daily medication.  There was no pursuit             
 of criminal charges once that purpose was accomplished.  It was,              
 basically, a device used to encourage a change in behavior.  Nobody           
 wanted to put a sick person in jail, or to fine them.                         
                                                                               
 MS. BRINK validated Mr. Kingman's statement that 26 states                    
 currently have some sort of HIV transmission law on their books.              
 Illinois was the only state she found, however, that had actually             
 litigated the law to the end.   Challenges on similar grounds are             
 being raised in other states, but she pointed out that the Alaska             
 Constitution would provide different standards than the Illinois              
 Constitution or the U.S. Constitution.  In 1989, the American Bar             
 Association (ABA) stated that civil and criminal remedies are                 
 available to prosecute reckless or intentional transmission, so HIV           
 specific sanctions should only play a limited role when a state               
 attempts to combat the HIV epidemic.  A resolution, based on the              
 same concerns, which were raised in this committee at the last                
 hearing, was passed by the American Bar Association.  She said the            
 criminal system is not the best fit for controlling risky conduct.            
 It contains the potential for abuse due to current public                     
 sentiment, problems with respecting and enforcing constitutional              
 barriers, and the confidentiality of medical records.   The ABA               
 has, therefore, discouraged the use of criminal sanctions in                  
 combating HIV.                                                                
                                                                               
 CHAIR JAMES thanked Ms. Brink for her input and asked if the                  
 committee had any further questions of her.  Ms. Brink said she               
 would stay on line.                                                           
                                                                               
 Number 250                                                                    
                                                                               
 REPRESENTATIVE IVAN expressed curiosity about if there were any               
 isolated cases in the jail system now, and asked how they deal with           
 these cases.                                                                  
                                                                               
 Number 291                                                                    
                                                                               
 JERRY SHRINER, Special Assistant to Commissioner, Department of               
 Corrections, said he did not have an answer to that question.   A             
 small number of people exist within the system now who have AIDS,             
 maybe three or four, and the staff takes reasonable precautions to            
 protect themselves and other inmates.  A common practice among law            
 enforcement officers is to take precautions such as wearing rubber            
 gloves for protection against body fluids.  The infected people are           
 not isolated from the rest of the population as there are no units            
 or rooms in any of the prisons for isolating HIV carriers from the            
 rest of the general population.                                               
                                                                               
 REPRESENTATIVE IVAN asked how the Department of Corrections would             
 deal with the execution of this law if this bill passed and became            
 law.  He wondered if Mr. Shriner could foresee an increase in                 
 funding.                                                                      
                                                                               
 MR. SHRINER said the Department of Corrections filed a zero fiscal            
 note with respect to this legislation.  He has spoken with people             
 in institutions and the consensus was, if anyone was convicted and            
 sentenced under this legislation, they would be handled similarly             
 to any other Class A or Class B felons.  The number would probably            
 be too small to create a measurable impact on the system with                 
 additional inmates.   Also, medical people who provide inmate                 
 health care responded with a zero fiscal note, which surprised him.           
 His concern arises from $600,000 in medical expenses paid by the              
 state over six or seven months for a single inmate who has AIDS.              
 Class A felons who have AIDS would be in the system for long                  
 periods of time, so the medical costs to the state could be                   
 enormous.  The view of medical people, however, is that it is                 
 difficult to predict medical costs for inmates with AIDS because of           
 the unpredictability of the disease.  The costs are purely                    
 speculative.                                                                  
                                                                               
 Number 317                                                                    
                                                                               
 REPRESENTATIVE JOE GREEN questioned the situation of married                  
 couples who engage in intimate sexual relations, and if there was             
 transmission of HIV in spite of the use of reasonable prophylactic            
 measures.  He thought this legislation, when considering the                  
 current language, might be catastrophic in marriage.                          
                                                                               
 Number 339                                                                    
                                                                               
 CHAIR JAMES said in most cases there are laws on the books to take            
 care of an assault, even if the assault is not specified in the               
 law.  The assault can still be addressed in the existing law.  It             
 bothered her that HIV is treated so differently compared to other             
 contagious diseases, such as smallpox and tuberculosis.  The right            
 to privacy is so well protected with HIV.  She believes the bill is           
 an attempt to determine intent, and to identify criminal intent.              
 It is hard to know if a crime is committed when someone transmits             
 HIV, or difficult to discern if someone would intentionally                   
 transmit HIV or if they simply do not care.                                   
                                                                               
 Number 378                                                                    
                                                                               
 REPRESENTATIVE BRIAN PORTER spoke about the affirmative defense to            
 prosecute on page 2 of the bill.  It seems to indicate if two                 
 people are legally married at the time of contact, regardless of              
 their attempt to prophylactic escapement, that is an affirmative              
 defense.                                                                      
                                                                               
 REPRESENTATIVE GREEN said that he was not reading it that way,                
 because there is the word "and" after Section b.  That language               
 made the intent questionable in his view.                                     
                                                                               
 REPRESENTATIVE PORTER agreed, but the extent to which reasonable              
 prophylactic measures are taken is a fact situation that would need           
 to be established at the time of trial.  He did not think there was           
 a standard set in this state.                                                 
                                                                               
 Number 392                                                                    
                                                                               
 REPRESENTATIVE OGAN commented that sexual relations with a spouse             
 who has HIV is not unlawful under this bill as long as the spouse             
 understands the risks involved.  He seriously doubted there would             
 be any prosecutions under that clause:  A wife or husband is not              
 obligated to testify against their spouse in court.  This comment             
 raised questions among committee members.  Some wondered if that              
 was really true.                                                              
                                                                               
 REPRESENTATIVE GREEN suggested, to avoid problems, that they either           
 drop the "and," and put "or," or that they separate "a" from "b"              
 completely.  If the section pertaining to a consenting married                
 couple is separated in that way it should keep police out of the              
 bedroom.                                                                      
                                                                               
 REPRESENTATIVE CAREN ROBINSON requested that they hear from the               
 Department of Law on this issue.                                              
                                                                               
 Number 420                                                                    
                                                                               
 AL ZANGRI, Division of Public Health, Department of Social                    
 Services, came forward to testify, saying the department cannot               
 support this bill.  The department is aware that 26 states passed             
 similar legislation; they did so under a federal requirement to               
 receive federal money.  Alaska did not pass this legislation at               
 that time because the Feds and our Attorney General agreed we had             
 enough legal protection; the state could prosecute intentional                
 transmission under current statutes.  This bill will make                     
 transmission without intent a "Class A Felony" rather than a "Class           
 A Misdemeanor."                                                               
                                                                               
 MR. ZANGRI explained the department's belief on this, saying the              
 result of this legislation could reduce incentives for voluntary              
 HIV testing in high risk populations.  The primary effect of this             
 bill is "to make transmission without intent to harm."  He                    
 explained if someone transmits HIV with intent to harm, currently,            
 they can be prosecuted under current law for assault or attempted             
 murder.  Under the current law, if HIV is transmitted without                 
 intent to do harm, they can be prosecuted on the grounds of                   
 reckless endangerment.  This bill, according to the Department of             
 Social Services, will change reckless endangerment to a "Class A              
 Felony" rather than a "Class A Misdemeanor."   Mr. Zangri                     
 reiterated that the department believes, in effect, that incentives           
 for high risk individuals to be tested will be seriously reduced if           
 this bill passes as it is.  If they do not know they are HIV                  
 positive they cannot be prosecuted under this bill.  Generally,               
 people with HIV act responsibly in their attempt to minimize the              
 possibility of transmission.  In those states having this                     
 legislation on the books, the total testing has increased.  It may            
 be, primarily, the result of a general increase in the use of HIV             
 testing.  For instance, there is automatic HIV testing for blood              
 donations, for obtaining life insurance policies and health                   
 insurance, and so forth.  They are most concerned about high risk             
 populations.                                                                  
                                                                               
 MR. ZANGRI said the Department of Social Services recommends a                
 number of amendments to this bill.  First, they recommend deleting            
 the section Representative Porter was discussing:  AS 11.41.600.              
 (1) (b) (a), which has to do with a married couple's defense.  The            
 reason for this recommendation is that it is difficult to find good           
 reasons to exempt a married couple, but not a couple that is only             
 living together.  They are in much the same situation.                        
                                                                               
 The second recommendation is to delete AS 11.41.600 (1) (a) (3) on            
 page 2, line 20, of the original bill.  They would prefer to delete           
 the entire section; or, if not, at least "parental transmission of            
 the disease."  Parental transmission of HIV occurs during birth,              
 not prior to birth.  If we make it a crime to give birth, then we             
 give the pregnant person no other alternative but abortion.  She              
 must either terminate the pregnancy or commit a crime.  The                   
 department also believes the bill should define the appropriate               
 prophylactic measures if it is going to define transmission of the            
 disease.                                                                      
                                                                               
 Number 505                                                                    
                                                                               
 REPRESENTATIVE OGAN asked Mr. Zangri, with all due respect, if he             
 would have sex with someone with a prophylactic device knowing they           
 had AIDS.                                                                     
                                                                               
 MR. ZANGRI answered, "No."   Representative Ogan said that he                 
 wouldn't either.                                                              
                                                                               
 Number 515                                                                    
                                                                               
 REPRESENTATIVE OGAN debated Mr. Zangri's statement about the lack             
 of knowledge as a reason a person would not be prosecuted.                    
 Representative Ogan read a portion of the bill.   On page 2, line             
 23, it reads:                                                                 
                                                                               
 "In a prosecution under (a) of this section, the                             
 determination of whether a defendant acted with knowledge                     
 that the defendant was infected with HIV shall be based                       
 on the totality of the evidence concerning the existence                      
 of the knowledge, and may not be construed as requiring                       
 that the accused has submitted to or received the results                     
 of a particular test or method of diagnosis."                                 
                                                                               
 REPRESENTATIVE OGAN said what they are trying to do with this                 
 legislation is eliminate the argument that someone is going to                
 discourage testing.  The intent is to get to the irresponsible                
 people.  They are those people with reasonable knowledge, who have            
 exercised high risk behaviors, and who may be getting symptoms of             
 having HIV, but who do not get tested.  These people deliberately             
 expose other individuals to the HIV virus.  The people who suspect            
 that they have HIV and are responsible will surely get the test and           
 abstain from behaviors that could possibly infect other people.               
                                                                               
 MR. ZANGRI also believes responsible people will get tested and               
 will act responsibly.  He and the department are more concerned               
 about the people who are not particularly responsible and who will            
 not get tested.  Evidence exists to show that the probability of              
 transmission from a single contact is very low.  Without the use of           
 a condom, for instance, transmission is about 1 in 1,000, and with            
 the use of a condom it is about 1 in 10,000.   There is a problem             
 of facing an issue of "what is reasonable knowledge?"  The                    
 department's main concern is that this will develop a set of                  
 incentives to work against high risk populations from being tested            
 and acting responsibly.                                                       
                                                                               
 Number 546                                                                    
                                                                               
 REPRESENTATIVE ROBINSON directed a comment to Representative Ogan             
 about a discussion she had with some young men who heard about the            
 laws in the lower 48 states.  Whether right, wrong or indifferent,            
 she said that these young people are not ready to accept that they            
 need to become tested.  These young men said they would not get               
 tested because they could be prosecuted.  So, there are not just              
 people who are irresponsible or bad, but those who feel themselves            
 invincible and need not worry about these sorts of things.  Some              
 stand on the old cliche: "What we don't know won't hurt us."                  
                                                                               
 REPRESENTATIVE PORTER said that he and Representative Ogan                    
 discussed this bill, and this type of attitude was one area of                
 discussion.  That issue is the reason they used that language in              
 the bill.  If someone is engaging in activities of high risk, as              
 relates to acquiring AIDS, and if there is symptomology, that                 
 person would still be vulnerable under this statute and should get            
 tested.  He felt that anyone making such a statement would be, by             
 omission, potentially committing murder.  He did not consider that            
 excusable.                                                                    
                                                                               
 REPRESENTATIVE GREEN asserted that a person would be a fool if they           
 were in a high risk venture and did not become tested.  His                   
 question was if our court system is ready for this kind of                    
 legislation.  Looking at the bill, as written, it says that                   
 ignorance of law is no excuse.                                                
                                                                               
 Number 586                                                                    
                                                                               
 MR. ZANGRI pointed out that the symptomology of HIV transmission              
 can appear many years after the initial exposure, and long after a            
 person is infected.  It could be 6, 10 or 15 years after.                     
 Meanwhile, the infected person can be infecting others and creating           
 a long history of problems.  Another issue is the lack of                     
 incentives for individuals to get tested for HIV.  If an individual           
 engages in high risk behavior and becomes tested, it tells them               
 they have a death sentence if it is positive.  There is no                    
 incentive except to be responsible and to protect other people.               
 If there is a law that states that additional contact after testing           
 HIV positive is potentially criminal, it takes away the incentive             
 for responsible people.  This would explain why the department                
 argues that the bill changes the incentives.  There is no way of              
 knowing what will actually happen, but it may create an incentive             
 for someone to get into prison for the state care.  He was not                
 suggesting it would happen, but the potential and incentive are               
 there.  If he found that he had HIV, for instance, his insurance              
 companies would drop him within the next five or ten years.  On the           
 other hand, it would be difficult for the state to drop a person              
 imprisoned as a Class A felon.                                                
                                                                               
 Number 612                                                                    
                                                                               
 REPRESENTATIVE OGAN said that if someone's insurance company drops            
 them that they would be on the state system anyway.   He asserted             
 that it is irrelevant whether a person receives treatment inside or           
 outside prison.  It would be the same amount of money.  As for                
 incentives, this bill contains some good ones:  To stay alive and             
 to keep from killing other people.  It also addresses in a                    
 reasonable way the notion of a disincentive provided someone that             
 they can act promiscuously without impunity.  This bill, he added,            
 was not intended to have bedroom police.  The intent is to get to             
 the worse offenders:  For instance, prostitutes who know they have            
 HIV, yet refuse to change their life style and proceed to infect              
 other people.  Representative Ogan pointed out that Representative            
 Porter, in his official capacity as the former police chief of                
 Anchorage, could alone testify to the amount of prostitutes in                
 Anchorage.  He also spoke of rumors he has heard about people who             
 have gone into places with syringes of blood and threatened to hold           
 up stores.  Also, police officers have had to pat down prisons and            
 accidentally got a needle stick.                                              
                                                                               
 REPRESENTATIVE ROBINSON agreed that AIDS is a serious issue facing            
 our country.  She appreciated what Representative Ogan was trying             
 to do with this bill; however, she felt the current laws would                
 handle this kind of situation.  The Department of Law provided                
 ample information, in her estimation, to show they are confident              
 that current laws are adequate to deal with this problem.                     
 Representative Robinson also had strong personal feelings about               
 people who have not been tested for HIV as being considered bad.              
 She issued a warning that people should be careful about saying who           
 is or is not high risk.  Her final point was that laws are on the             
 books to deal with this, so she didn't believe it was necessary to            
 create more laws.                                                             
                                                                               
 Number 691                                                                    
                                                                               
 REPRESENTATIVE GREEN said being a blood donor is one good way to              
 get tested for HIV.   They screen all blood samples.                          
                                                                               
 TAPE 95-25, SIDE B                                                            
 Number 000                                                                    
                                                                               
 CHAIR JAMES asked Mr. Zangri about the mandatory testing for                  
 tuberculosis and other diseases.  The issue of privacy becomes an             
 issue with HIV that she did not understand.  The question was why             
 TB is easier to deal with than AIDS.                                          
                                                                               
 MR. ZANGRI stated that he could not respond intelligently to that             
 question without speaking first to his HIV people.                            
                                                                               
 Number 018                                                                    
                                                                               
 MARGOT KNUTH, Criminal Division of the Department of Law,                     
 approached the table to answer questions and to give some                     
 information regarding legal matters that arise from this bill.                
                                                                               
 REPRESENTATIVE GREEN asked if this bill were to become law if it              
 would cause people who are primarily law-biding to do what is                 
 required, but not do anything to irresponsible people.  He wanted             
 to know if we would be further affecting those who are law-biding             
 and not doing much to the irresponsible people.  The people with              
 the highest probability of passing the disease would probably                 
 ignore this.                                                                  
                                                                               
 MS. KNUTH said the greatest gap with this bill is the marginal                
 young female who knows, but does not truly understand or appreciate           
 the risks of AIDS.  It is a very vulnerable group, such as the                
 young person with the borderline IQ, and with, perhaps, some                  
 developmental disability.  These people are aware that the people             
 they are with have AIDS, and they have knowledge that the disease             
 is transmitted by sex, yet they have no true appreciation of what             
 it means to have AIDS.  To prosecute the person preying upon that             
 group is an extremely difficult proposition under any criminal                
 statute.  What they need, she said, is a civil remedy.  She said              
 there are difficulties, because quarantine comes up.  It is an                
 option, yet the times you want to use quarantine are very few, and            
 the times you want to avoid quarantine are very great.  She said it           
 is a tough issue to take on.                                                  
                                                                               
 Number 093                                                                    
                                                                               
 REPRESENTATIVE PORTER asked Ms. Knuth if a statute is on the books            
 to deal with the classic cases this legislation is attempting to              
 address:  For instance, prostitutes who tested HIV positive but who           
 continue the same life style.                                                 
                                                                               
 Number 103                                                                    
                                                                               
 MS. KNUTH said they have several different statutes depending upon            
 the level of knowledge, from attempted murder to an assault statute           
 that deals with extreme indifference to the value of human life.              
 That would cover the situation that Representative Porter was                 
 describing.  It would be a Class A felony.  There is also the                 
 misdemeanor of "reckless endangerment," which would pertain to                
 someone who almost deliberately does not know they are infected and           
 who continues to engage in sex anyway.  It is a misdemeanor, but a            
 criminal case.  She pointed out that the committee might need to              
 determine to what extents people are deterred by the threat of                
 criminal prosecution.  They should also determine what they will              
 accomplish by prosecuting these people.                                       
                                                                               
 Number 137                                                                    
                                                                               
 REPRESENTATIVE GREEN asked if Ms. Knuth thought this bill would do            
 what the committee intends.   She answered, "No."   She did not               
 believe it would as it is.  Nobody, she said, has found the right             
 solution, or they would be implementing it.                                   
                                                                               
 Number 148                                                                    
                                                                               
 REPRESENTATIVE ROBINSON asked Ms. Knuth about rape victims.                   
                                                                               
 Number 155                                                                    
                                                                               
 MS. KNUTH remembered legislation, which she believed had passed,              
 when you could have the defendant tested in a rape case, so the               
 rape victim did not have to go through that.  If the defendant                
 tested HIV positive the victim raped would be notified.                       
                                                                               
 CHAIR JAMES said that Representative Ivan had to leave for another            
 meeting, but he had a question of Mr. Shriner, which he put in                
 writing.                                                                      
                                                                               
 Number 241                                                                    
                                                                               
 REPRESENTATIVE IVAN's question and comments are added below for the           
 record.                                                                       
                                                                               
 "How can Corrections have a zero fiscal note if more HIV                     
 positive or AIDS carriers are or possibly may be                              
 incarcerated?                                                                 
                                                                               
 "The liability issues alone are seemingly very costly,                       
 not to mention increased medical costs.                                       
                                                                               
 "Corrections might want to rethink their position in                         
 regards to their handling of AIDS or HIV positive inmates                     
 and how they are placed in general population."                               
                                                                               
 Number 181                                                                    
                                                                               
 MR. SHRINER said, in answer to Representative Ivan's question, that           
 they believe, based on the small number of known HIV carriers and             
 individuals within the system who have AIDS, that they cannot                 
 reasonably project a significant increase of inmates.  If this law            
 went into effect, there might be an increase, but it would be very            
 small.  It could be one, eight, or none.  The impact on the system            
 would be relatively insignificant.  On one hand, it costs $107.00             
 per day to take care of an inmate, yet in terms of having a fiscal            
 note it is difficult to say what the additional costs of an                   
 individual inmate would be.  If someone came into the system                  
 without AIDS and never developed the disease while in the system,             
 the cost would be no more than normal medical care for an inmate.             
 Therefore, the fiscal note is zero.  If, on the other hand, a                 
 person was serving a ten year sentence and developed AIDS after               
 seven years, with three years left to serve, the cost could be                
 about $1 million a year until they are released.  Since everything            
 is speculative they cannot predict what the real amount would be.             
                                                                               
 Number 241                                                                    
                                                                               
 CHAIR JAMES brought up Representative Ivan's statement:                       
 "Corrections might want to rethink their position in regards to               
 their handling of AIDS or HIV positive inmates and how they are               
 placed in the general population.  She assumes that Representative            
 Ivan's concern is that Corrections handles everyone, those with               
 AIDS and without AIDS, the same way.                                          
                                                                               
 Number 255                                                                    
                                                                               
 CHAIR JAMES also brought out a letter, dated March 13, 1995,                  
 written to her by the Alaska Civil Liberties Union (ACLU).  It                
 concerns HB 199 and SB 91.  The ACLU wanted to testify at that                
 meeting, but they were not able to do that today.  She did not read           
 it word for word, but she read parts of it, the underlined                    
 headings, and she referred to it, so it would be part of the                  
 record.                                                                       
                                                                               
 1. Transmission of AIDS may already be prosecuted under                    
 existing criminal statutes.                                                 
 2. These bills discourage Alaskans from becoming                           
 informed of their HIV/AIDS status.                                          
 3. It will be difficult, if not impossible, to                             
 prosecute these cases.                                                      
 4. These bills violate rights to privacy and equal                          
 protection.                                                                  
                                                                               
                                                                               
 CHAIR JAMES also added, for the record, that there were some court            
 cases in the letter to support their concerns.                                
                                                                               
 Number 276                                                                    
                                                                               
 ALLEN KINGMAN, Legislative Aide to Representative Ogan, testified,            
 at the request of Representative Ogan.  He had points to address              
 from testimony heard.  First, the existing law has a gap in it that           
 this proposed law would address.  Under existing law you could                
 punish someone for intentionally transmitting HIV to someone else.            
 This would be a situation when a person knew he had HIV and really            
 wanted another person to have it too, and would willfully give it             
 to them.  That would be a felony under existing law.  On the other            
 hand, the reckless endangerment type of law is a Class A                      
 Misdemeanor.  This would be a situation where someone knows they              
 have HIV and the person doesn't want to infect someone else, but he           
 has little or no regard for the fact that he might killing people.            
 This type of person goes about his or her business without concern            
 about whether or not others are being infected.  Between these two            
 types is a huge gap.  This bill is intended to bridge that gap.               
 He did not believe the existing law is adequate to do that.                   
                                                                               
 MR. KINGMAN also brought up the issue of discouraging testing,                
 which is an issue that has come up repeatedly in every state that             
 has considered a bill like HB 199.  While attempting to draft this            
 bill they addressed this issue; they do not want to discourage                
 testing.   He recalled a statement made that there is currently no            
 incentive at all to testing.   Mr. Kingman did not agree, because             
 if somebody has reason to believe they have HIV, and they are                 
 tested and diagnosed, they can get on a course of treatment, such             
 as AZT, which can effectively double their life span if they do it            
 early enough.  That is a pretty good incentive to get tested.  The            
 longer a person waits to be diagnosed as HIV positive the less they           
 can do for them medically.  Another important focus should be what            
 they want to accomplish by testing people.  The question is:  Why             
 is testing a desirable goal at all as a public policy goal?  If               
 they encourage testing, they hope the people who are diagnosed as             
 HIV positive will choose to do the responsible thing by changing              
 their life style, so they will not infect others.  Otherwise, it              
 hardly matters if they get tested.  It seems that the only people             
 this bill would discourage from being tested are those who would              
 not modify their behavior under any circumstance.  This is where              
 Representative Green's question comes in, which was if this would             
 really modify anybody's behavior.  Hardened criminals, for                    
 instance, don't care if something is illegal or not.  Still, nobody           
 wants to go to jail.  Mr. Kingman said if he were diagnosed as HIV            
 positive and told he had five years to live, he would not want to             
 spend those last five years in jail.  This bill gives an incentive            
 in that regard.                                                               
                                                                               
 Number 385                                                                    
                                                                               
 Another concern addressed in the letter from the Alaska Civil                 
 Liberties Union was that it would be nearly impossible to prosecute           
 these cases.  This concern was raised on the fiscal note from the             
 Department of Law in Alaska.  Mr. Kingman informed the committee              
 that he had contacted numerous staff attorneys in the Attorney                
 General's office in Illinois for information.   He spoke to people            
 at the policy making level, and he spoke with actual prosecutors              
 who tried cases like this.  Illinois law is similar to Alaska's.              
 He asked for input about any problems that we could address in our            
 law and they brought up two concerns.  One was that there was a               
 challenge that went all the way to the Supreme Court; it was                  
 challenged because of the lack of definition to intimate contact.             
 They said it should be defined further.  Still, the Illinois                  
 Supreme Court upheld their looser language with less definition.              
 The other concern they brought up was the difficulty of proving               
 someone had knowledge that they had HIV.  They put the language in            
 HB 199 to address this concern.  There is a paragraph that says:              
 "You can't judge a person's knowledge by whether or not they have             
 had one specific type of test or medical diagnosis."   Mr. Kingman            
 felt they addressed the problems Illinois has had with this bill.             
 As for the concerns about violating the right to privacy, people              
 misunderstand the privacy right.  It is not a constitutional right            
 to be left alone.  In constitutional legal terms the right to                 
 privacy is "a right to define oneself."  That includes defining               
 oneself by choosing their sexual preference, or if they wanted to             
 be a parent.  The Supreme Court has never given anyone the right to           
 define themselves at the expense of another person's life.                    
                                                                               
 Number 462                                                                    
                                                                               
 REPRESENTATIVE ROBINSON asked Mr. Kingman if he knew how many                 
 people in the state have been tested for HIV.                                 
                                                                               
 MR. KINGMAN did not know how many have been tested.  He knew how              
 many were diagnosed as HIV positive, but not how many were                    
 diagnosed as negative.  Since December 31, 1994, there was                    
 something like 272 living cases of HIV in Alaska.  There have been            
 more than 500 cases that were tested HIV positive, who have since             
 died or moved out of state.                                                   
                                                                               
 REPRESENTATIVE ROBINSON mentioned that, in the concept of testing,            
 part of the procedure would be to notify all the other partners               
 that the infected person was with.                                            
                                                                               
 MR. KINGMAN answered that if someone had received notification that           
 a former partner was tested and found to be HIV positive, it would            
 place some sort of a duty on them to be tested themselves.  Whether           
 or not by doing that there were grounds to prosecute them if they             
 continued to engage in high risk behavior, he thought it would be             
 a question for a jury to decide.                                              
                                                                               
 MS. KNUTH came back to bring to the committee's attention that our            
 assault in the first degree statute, which is AS 11.41.200, is a              
 Class A felony.  One way assault in the first degree is committed             
 is when a person knowingly engages in conduct that results in                 
 serious physical injury to another, under circumstances manifesting           
 extreme indifference to the value of human life.   In defining                
 serious physical injury, it would include being exposed to the HIV            
 virus.                                                                        
                                                                               
 Number 486                                                                    
                                                                               
 REPRESENTATIVE OGAN asked Margot Knuth to confirm that he heard it            
 right, that the statute says, "results in a serious injury."                  
                                                                               
 MS. KNUTH confirmed that it was correct.                                      
                                                                               
 REPRESENTATIVE OGAN went on to say then that HIV oftentimes will              
 not show up for five or seven years.  It would be difficult to                
 prosecute a case five or seven years later, which is probably why             
 nobody has yet been prosecuted under the current law.                         
                                                                               
 MS. KNUTH said that if HIV was transmitted, even though it has not            
 become a full blown case of AIDS, it would still qualify as serious           
 physical injury under our statutes as the terms are defined.  If              
 the partner did not become HIV positive, it would be difficult to             
 prosecute.                                                                    
                                                                               
 Number 503                                                                    
                                                                               
 REPRESENTATIVE PORTER commented that HIV is not the element that              
 takes five or eight years to development.  HIV is a virus that                
 develops right away or within six months.  A person would have a              
 period of time where it is reasonable to determine whether HIV has            
 been transmitted.                                                             
                                                                               
 Number 511                                                                    
                                                                               
 REPRESENTATIVE ROBINSON reaffirmed her belief that adequate laws              
 already exist to prosecute.  She said the state does not need                 
 another law.                                                                  
                                                                               
 Number 541                                                                    
                                                                               
 REPRESENTATIVE GREEN said he wants something to close the loophole            
 in the law, and something to stop this insidious disease.  He had             
 a concern, however, about adding statutes that don't accomplish               
 what we want.  He wanted to know if there is a way to tighten the             
 loop so it will do that.                                                      
                                                                               
 CHAIR JAMES said her mind was running, because AIDS is something we           
 cannot get our hands on.  More and more people become infected with           
 AIDS now, and it seems there is nothing to stop it.  She was not              
 convinced either that this bill would do what they wanted.                    
                                                                               
 Number 567                                                                    
                                                                               
 REPRESENTATIVE PORTER had the same feeling of urgency about the               
 AIDS problem.  It is expeditiously growing, but he was not                    
 convinced either that this bill would be the way to go.  There were           
 constitutional issues.  He said that he would be willing to meet              
 with the sponsor and the Department of Law to work out the                    
 problems.                                                                     
                                                                               
 REPRESENTATIVE OGAN wanted to add that the current assault law does           
 not address irresponsible people who avoid getting AIDS.  He                  
 described a game like Russian Roulette to define intent versus the            
 lack of intent to harm in cases of irresponsibility.  This bill               
 focuses on people who live very promiscuous life styles, and those            
 who have no regard for the well being of others.  He concurred that           
 HB 199 is not a cure-all, but it sends a message of disapproval               
 regarding this kind of behavior.  The message is that we will not             
 approve of or condone these promiscuous life styles or                        
 irresponsible behavior.                                                       
                                                                               
 Number 601                                                                    
                                                                               
 CHAIR JAMES had a follow up for the Russian Roulette scenario                 
 Representative Ogan used.  The person might keep shooting until               
 there was a shell in the chamber, and then the person would be                
 dead.  The point was, if an irresponsible person thought he got               
 away with something once, he would probably try to get away with it           
 again.                                                                        
                                                                               
 REPRESENTATIVE ROBINSON stressed that education is a way we can do            
 something about AIDS.  She brought up that Representative Toohey              
 pulled her bill, about educating children in schools, believing               
 from testimony that children were being education.  The Department            
 of Health has said since, it is not true.  Some schools forbid any            
 kind of education within the school district regarding AIDS.                  
 Another law is a band-aid attempt to end the AIDS problem,                    
 especially when we are not willing to insure that every child is              
 appropriately educated about AIDS in this state, and if we are                
 unwilling to heed what health providers tell us.  She urged the               
 committee to remember that as the bill moves forward.  They should            
 keep the budget in mind, and also how we work with the schools and            
 health department on this issue.                                              
                                                                               
 Number 624                                                                    
                                                                               
 REPRESENTATIVE GREEN asked if they are going to review this bill in           
 Judiciary, and if it would include input from the Department of               
 Law.                                                                          
                                                                               
 REPRESENTATIVE PORTER said he cannot think of a situation where               
 there would not be the same requirement for giving testimony on the           
 elements of reckless disregard before a jury to establish a felony            
 in this bill or any existing law.  He would have to research this             
 with the Department of Law in particular.                                     
                                                                               
 REPRESENTATIVE GREEN asked that question, because it would have a             
 direct bearing on whether he voted to move the bill out of                    
 committee.  If they cannot make it a tougher, more workable,                  
 smaller loophole kind of law so it would do some good, he would               
 rather not have another law on the books.                                     
                                                                               
 Number 640                                                                    
                                                                               
 CHAIR JAMES brought up the scenario Representative Ogan spoke of,             
 about shooting the gun and the empty cartridge being there so                 
 nobody got shot.  She had another scenario of a person who knows              
 they have AIDS, who has no regard for the value of human life, and            
 continues to expose other people to AIDS.  The individual exposed             
 himself, in an intimate encounter, to a particular person who was             
 unsuspecting, and the person found out afterward and charges the              
 person on the grounds that he or she violated this law.  The person           
 is then prosecuted, found guilty, and sentenced to a jail term.               
 Under existing law, as she understood it, if it was a consensual              
 arrangement and the person did not contract AIDS or the HIV virus,            
 that there would be no way to charge the person.  If the infected             
 person is not stopped at that point and keeps with the same                   
 reckless and uncaring behaviors, Representative James wondered if             
 there were safety measures, or some recourse.  She questioned if a            
 person could be stopped on account of their disregard for the law,            
 and whether or not the violated person contracted AIDS.                       
                                                                               
 REPRESENTATIVE PORTER attempted to validate what Representative               
 James was saying by her scenario.  He spoke about whether there was           
 a way to retrace the steps like a normal contagious disease check             
 back to all exposures, in order to do something with those people             
 who were exposed.  Representative James told Representative Porter            
 that was not what she meant.                                                  
                                                                               
 CHAIR JAMES clarified her point by repeating her scenario, then she           
 added a question about whether or not it would be beneficial to               
 prosecute a person who has AIDS, if the person continued to behave            
 with blatant disregard of the law and disregard for others.  Her              
 question was, if this bill took that person off the streets, out of           
 exposure, and it prevented him or her from continually behaving               
 recklessly, would it be a benefit?  The question was if the good              
 parts of the bill negate the bad parts, or visa-versa.  She                   
 believes there is a window of guilt that is not currently                     
 protected.  The only way the guilt can be protected is if the act             
 was a rape and not a consensual meeting.  If it was a rape then it            
 would be a crime, but if it was a consensual meeting it would not             
 be a crime, unless an unsuspecting person got the AIDS virus.                 
                                                                               
 Number 688                                                                    
                                                                               
 REPRESENTATIVE ROBINSON brought up other things to consider, such             
 as two people who share a needle, and one person knows they are HIV           
 positive and the other does not.  She asked if the unsuspecting               
 person who just shared the infected person's needle could prosecute           
 if they found out the other person knowingly had the HIV virus.               
                                                                               
 REPRESENTATIVE PORTER said the state could prosecute the other                
 person if the act was reported to them.                                       
                                                                               
 CHAIR JAMES determined that the committee would have to adopt a               
 committee substitute and asked for a motion.                                  
                                                                               
 REPRESENTATIVE PORTER moved to adopt the CS for HB 199, Version F,            
 as the working document.  Hearing no objections, the CS HB 199,               
 Version F, was adopted.                                                       
                                                                               
 Number 700                                                                    
                                                                               
 CHAIR JAMES asked what Representative Ogan wanted to do with this             
 CS.  The fact that they adopted the CS was not an indication they             
 would pass it out of committee, although she felt that 1:40 minutes           
 was ample time to give to HB 199, and she didn't want to give it              
 any more attention.  Judiciary is the next committee of referral,             
 and Representative Porter stated that he would work with the                  
 sponsor and the Department of Law on the bill.                                
                                                                               
 REPRESENTATIVE GREEN said that even though the committee heard the            
 bill they should hear it again, since they still feel uneasy about            
 it.  They got hung up on the legal portion of this bill rather than           
 the humanitarian or social issue, and because of that and that                
 Representative Porter would work with the sponsor to make it                  
 acceptable, he would be willing to move it out of committee.                  
                                                                               
 REPRESENTATIVE ROBINSON objected.                                             
                                                                               
 CHAIR JAMES said that State Affairs had covered its responsibility            
 on this bill and she felt that the decision each committee member             
 needed to make was if the bill would have positive or negative                
 effects on the affairs of the state.   Since they did not know                
 about the legal costs she felt that should be addressed in                    
 Judiciary.                                                                    
                                                                               
 TAPE 95-26, SIDE A                                                            
 Number 044                                                                    
                                                                               
 REPRESENTATIVE GREEN said he would move that the CS for HB 199,               
 State Affairs Version F, be passed out of committee with individual           
 recommendations and the accompanying fiscal note.  There being an             
 objection from Representative Robinson, Chair James asked for a               
 roll call vote.                                                               
                                                                               
 Number 057                                                                    
                                                                               
 REPRESENTATIVE WILLIS wished to make a comment.  He was very torn             
 after hearing all the testimony.  However, he was willing, from his           
 perspective, to allow the bill to go on to Judiciary.  He felt that           
 in Judiciary they would cover the questionable points he was                  
 concerned about, which were raised through the testimony.                     
                                                                               
 Number 070                                                                    
                                                                               
 REPRESENTATIVE ROBINSON wanted to state why she opposed the bill.             
 She believed we had adequate laws to deal with this issue, and we             
 must not create more laws and regulations.  Her opinion was that we           
 must try to live within the law we now have.  If there had been               
 testimony to the contrary, or testimony saying there were not laws            
 on the books to prosecute in these situations, she would support              
 moving this bill forward.  She did not feel the testimony did that.           
 She believes there are laws on the books, and she said, "We do not            
 need to be doing another law."                                                
                                                                               
 Number 118                                                                    
                                                                               
 CHAIR JAMES called the roll.  Representatives Porter, Willis,                 
 James, Ogan, Green voted in favor of passing the CSHB 199(STA) out            
 of committee.  Representative Robinson voted against passing the              
 bill out of committee.  Chair James said the bill was moved.                  
                                                                               

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