Legislature(1995 - 1996)
03/14/1995 08:07 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.