Legislature(1997 - 1998)

04/11/1997 09:09 AM Senate HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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              SB  17 CRIMINAL TRANSMISSION OF HIV                             
                                                                              
                                                                               
 Number 346                                                                    
                                                                               
  CHAIRMAN WILKEN  introduced  SB 17  as the last order of business            
 before the committee.                                                         
                                                                               
  JOE AMBROSE , Staff to Senator Taylor, read the following Sponsor            
 Statement into the record:                                                    
                                                                               
 Senate Bill 17 was introduced with the goal of putting Alaska in a            
 pro-active position when it comes to dealing with individuals who             
 knowingly place others at risk of HIV infection.  SB 17 is intended           
 to be preventative as well as punitive and is intended to render a            
 criminal rather than moral judgement.                                         
                                                                               
 As of December 31, 1996, 369 Alaskans had been confirmed to have              
 AIDS.  That's since tracking began in 1982.  Of these cases, 194              
 are known to have died.                                                       
                                                                               
 The Epidemiology section of the Division of Public Health reports             
 that as of December 31, 1996, 640 Alaskans had tested positive for            
 HIV infection.  That number represents only those who have                    
 voluntarily tested through the State Section of Laboratories.                 
                                                                               
 The statistics show that HIV/AIDS affects both male and female,               
 across all age groups and without respect to race or residence.               
 The sad fact is that the rate or infection in Alaska is increasing.           
                                                                               
 If someone intentionally sets out to kill another person by                   
 infecting them with the AIDS virus, they can be charged under state           
 law with attempted first degree murder.  But, what do we do with              
 the person who does not "intend" to kill, but who still places                
 others in jeopardy?  In 1990, the Attorney General's office                   
 reviewed that question and suggested that ...quote..."it might be             
 possible to prosecute the person for reckless endangerment"... end            
 quote.                                                                        
                                                                               
 That is a class A misdemeanor prohibiting reckless conduct which              
 create a "substantial risk of serious physical injury".                       
                                                                               
 Most people would equate becoming infected with HIV as something              
 more than a "serious injury".                                                 
                                                                               
 Twenty seven other states have seen fit to adopt specific laws                
 dealing with criminal penalties for knowingly transmitting or                 
 exposing another to HIV infection.  It would only be prudent for              
 Alaska to have such a statute on the books.                                   
                                                                               
 SB 17 is brief and to the point.  It creates the crime of criminal            
 transmission of HIV and covers actions and conduct known to                   
 transmit the disease.                                                         
                                                                               
 The bill also provides an affirmative defense when the person                 
 exposed knows beforehand that the action could result in infection.           
 The bill also provides a provision excluding perinatal transmission           
 of the virus and to assure that an individual is not prosecuted for           
 an involuntary act.                                                           
                                                                               
 SB 17 is not intended to punish those who have contracted HIV.  It            
 is intended to protect others who may be unknowingly exposed to the           
 virus by what should be a criminal act of irresponsibility.                   
                                                                               
 Mr. Ambrose informed the committee that in drafting SB 17, the                
 Illinois statute was used almost verbatim which was adopted in                
 1989.  He noted that the Illinois statute was included in the                 
 committee packet as well as a summary of the laws passed in other             
 states.  The committee packet also includes two court rulings on              
 the Illinois law.  On April 6, 1994 the Illinois Supreme Court held           
 that the statute did not violate state or federal constitutional              
 protections for free speech or for free association and was not               
 unconstitutionally vague.                                                     
                                                                               
 Number 287                                                                    
                                                                               
 With regard to the impact on HIV testing in Illinois, the Illinois            
 Department of Health reported that after the law was on the books             
 for six years, testing for HIV/AIDS had increased not decreased.              
 This year the Illinois Department of Health reported a decrease in            
 public testing which was attributed to the increased availability             
 of testing in the private sector as well as home testing.  The                
 Alaska Department of Health reported that the majority of cases               
 resulted in consensual conduct.  Mr. Ambrose asked if consent would           
 have been given if the facts were known first.  SB 17 merely places           
 the responsibility on the infected person to advise the other                 
 person involved.                                                              
                                                                               
  THEDA PITTMAN , Alaska Civil Liberties Union, said that ACLU opposed         
 SB 17 on constitutional grounds and the bill would undermine the              
 efforts of the public health system.  HIV transmission is a public            
 health problem not a criminal problem.  Anyone with a transmittable           
 disease should understand how to avoid infecting others and utilize           
 the appropriate precautions.  In the rare instances when an                   
 individual recklessly or intentionally transmits HIV, Alaska law              
 already provides the opportunity for prosecution.  Therefore, this            
 language will not add to the prosecutor's tools, but will likely              
 decrease voluntary testing and the education management which                 
 typically accompanies testing and notification.  Ms. Pittman                  
 pointed out that on page 2, lines 11-13 and lines 1-5 raise due               
 process concerns regarding whether the state is providing adequate            
 notice to prohibited behavior.  The language on lines 1-5 regarding           
 the affirmative defense shifts the burden of proof to the defendant           
 as well as suggesting that the defense must seek information about            
 the person allegedly exposed that would otherwise be confidential.            
 Ms. Pittman stated that it made little sense to add a new law when            
 the current law contains adequate provisions.  Ms. Pittman urged              
 the committee's opposition to SB 17.                                          
                                                                               
 Number 241                                                                    
                                                                               
  DR. JOHN MIDDAUGH , Chief of the Section of Epidemiology in DHSS,            
 opposed SB 17.  The existing laws enable criminal prosecution and             
 punishment of egregious behaviors of intentional transmission of              
 HIV.  Passage of SB 17 will discourage testing and participation in           
 efforts to identify those who have potentially been exposed.                  
 Public health has had experience over many decades that illustrate            
 that criminalization of infections harms the public health efforts            
 to control disease transmission.  Diseases such as Hepatitis B,               
 Hepatitis C, the Herpes virus are more likely to be transmitted in            
 the conducts associated with the transmission of HIV.  Dr. Middaugh           
 was also concerned about the definition of "intimate contact" which           
 is so broad and could extend to many common activities that pose no           
 risk for disease transmission of HIV or other pathogens.  Sports,             
 health care, EMT activity, etc. could fall under the definition of            
 "intimate contact".                                                           
                                                                               
 Dr. Middaugh pointed out that the title of SB 17 reads, "An act               
 creating the crime of criminal transmission of human                          
 immunodeficiency virus (HIV)" yet the bill has provisions that show           
 that transmission is not required for criminalization of a                    
 potential exposure.  Exposure is only when a person has contact               
 with the virus regardless of whether the virus actually infects               
 another person.  In most exposures to HIV, no transmission or                 
 infection of the exposed person occurs.  Dr. Middaugh emphasized              
 that the department is concerned about HIV and the department's               
 efforts are aimed at the prevention of transmission and spread of             
 the disease.  SB 17 will harm preventive and public health efforts            
 and therefore, Dr. Middaugh requested that SB 17 not be passed.               
                                                                               
  CHAIRMAN WILKEN  noted the presence of Anne Carpeneti, Department of         
 Law, and Barbara Brink, Alaska Public Defenders.                              
                                                                               
  ANDREA NENZEL , Executive Director of the Alaska Native Assistance           
 Association, explained that the Alaska Native Assistance                      
 Association is a private nonprofit group which provides direct                
 services to persons living with HIV infection and provides                    
 education and behavior changes for the prevention of HIV infection.           
 The Alaska Native Assistance Association Board and Agency are                 
 adamantly opposed to SB 17.  SB 17 will deter efforts to prevent              
 further HIV infection in Alaska by discouraging testing while                 
 promoting further ignorance and discrimination.  Testing and                  
 appropriate counseling and care regarding responsible behavior to             
 prevent transmission is the most effective way to reduce HIV                  
 transmission.  Ms. Nenzel reiterated that the existing law provides           
 adequate means to prosecute and punish anyone who intentionally or            
 recklessly transmits HIV.  SB 17 will open the door to numerous               
 suits and the bill is fraught with potential for abuse by unhappy             
 partners or people with grudges.  Ms. Nenzel echoed the comments              
 regarding the shift of the burden of proof of innocence on the                
 accused person.  Ms. Nenzel urged the committee to vote against               
 SB 17.                                                                        
                                                                               
 Number 164                                                                    
                                                                               
  BONNIE MCCORQUODALE , Executive Director of the Interior AIDS                
 Association, urged the committee to reject SB 17 and any other                
 effort to criminalize HIV transmission.  Ms. McCorquodale has                 
 worked in the HIV prevention field for almost 10 years.  The                  
 prevention of the spread of HIV is a public health issue not a                
 issue that can or should be addressed by the criminal justice                 
 system.  Sound public health policy encourages testing,                       
 notification of partners, treatment, and knowledge about the                  
 protection of others.  SB 17 will discourage testing and other                
 potential life-saving services.  HIV is preventable and persons can           
 protect against it.  SB 17 only holds a portion of the population             
 responsible.  Ms. McCorquodale informed the committee that the                
 Secretary of Health & Social Services and the National Institutes             
 of Health confirmed that syringe exchange programs reduce the                 
 spread of HIV.  The language in the bill which makes the exchange             
 of nonsterile equipment a crime may work against one of the most              
 effective methods for reducing HIV in Alaska.  Ms. McCorquodale               
 emphasized that SB 17 is discriminatory and creates a criminal                
 class based on health status and would set prevention efforts back            
 years.                                                                        
                                                                               
  CAREY CUMMINGS , Interior AIDS Association of Alaska, opposed SB 17.         
 Ms. Cummings said that effective public policy encourages people to           
 make healthy individual choices and does not prohibit, limit, or              
 prosecute on the basis of biological behavior.  SB 17 is not                  
 prevention.  By criminalizing the exchange of nonsterile                      
 intravenous drug use equipment, those people utilizing such                   
 programs could be prosecutable.  Such criminalization would                   
 increase the nonsterile intravenous needles on the street as well             
 as increasing the likelihood of the transmission of the virus.  Ms.           
 Cummings encouraged the committee to reject SB 17 because of its              
 discriminatory nature.                                                        
                                                                               
  ANDY BINKLEY,  Community Outreach Worker with the Interior AIDS              
 Association, opposed SB 17 because it treats HIV transmission                 
 different from other diseases which could be just as life                     
 threatening.  Mr. Binkley opposed the intravenous drug                        
 paraphernalia language which seems headed in the wrong direction.             
                                                                               
  BARBARA BRINK,  Director, Alaska Public Defender Agency, was                 
 concerned with using criminal laws to promote public health instead           
 of using testing, education, and behavior modification.  Ms. Brink            
 assured the committee that Alaska laws are already sufficiently               
 available to prosecute any person who either intentionally or                 
 recklessly transmits the HIV virus.  She disagreed with the 1980              
 assessment that one can only be charged with reckless endangerment.           
 The Alaska assault statutes vary with regard to what one can be               
 charged with based both on the person's state of mind, whether the            
 action was intentional, reckless, or negligent, and on the result             
 of that conduct.  Reading from the assault in the first degree                
 statute, Ms. Brink clarified that a person commits assault if the             
 person knowingly engages in conduct that results in serious                   
 physical injury to another under circumstances manifesting extreme            
 indifference to the value of human life.  Someone who engages in              
 that type of behavior can be prosecuted for assault in the first              
 degree - or assault in the second degree, if a person recklessly              
 causes serious physical injury to another person.  The Alaska                 
 Criminal Code is based on the Oregon Criminal Code which recently             
 was successful in prosecuting someone when the person engaged in              
 such intentional behavior.                                                    
                                                                               
 Number 045                                                                    
                                                                               
 Ms. Brink expressed concern with how broadly the statue is drafted.           
 The broad definition of "intimate contact" makes unlawful not only            
 unsafe sex, but safe sex.  There is no provision for reasonable               
 prophylactic measures - something education efforts have been                 
 trying to encourage.  A person playing basketball, for instance,              
 who incurs a bleeding wound could be charged unless he/she could              
 prove that he/she informed everyone of his/her HIV positive status            
 and that the people willingly assumed that risk.  The meaning of              
 reasonable efforts to inform medical personnel is unclear.  Given             
 universal precautions, this seems an unnecessary addition.  With              
 regard to the nonsterile paraphernalia provision, needle exchange             
 programs have been proven to be very effective.  Alaska has been              
 chosen to receive a national grant to study the effect which she              
 believed would come to a halt because people would be liable for              
 turning in used and nonsterile needles.                                       
                                                                               
 Ms. Brink was concerned with the shifting of the presumption of               
 innocence.  Normally going to trial with a criminal charge, one is            
 presumed to be innocent, but in this case to prove that the person            
 knowingly engaged in that conduct is an impossible task.                      
                                                                               
  TAPE 97-39, SIDE A                                                           
                                                                               
 Ms. Brink said that the American Bar Association has considered               
 using criminal laws to try to curb the transmission of HIV and                
 actively adopted a resolution to discourage that.  A program of               
 public education about HIV should be implemented as the most                  
 effective method of deterring behavior which poses a high risk of             
 transmitting HIV.                                                             
                                                                               
  SENATOR LEMAN  pointed out the definition for "intimate contact" on          
 page 2.  He believed at basketball games it was policy to identify            
 those players who are carrying HIV which would be covered in the              
 subparagraph about intimate contact.   BARBARA BRINK  agreed that in          
 such organizations and circumstances as the NBA, precautions have             
 been taken, but "any contact" is so broad  and would not be limited           
 to the NBA or NCAA.  What if there was a car accident, more than              
 one person was injured, there's bodily fluids, and the people in              
 the car the person has been riding with have not been notified.  It           
 is not limited to only sexual contact.   SENATOR LEMAN  doubted that          
 anyone voluntarily engaging in intimate contact would be in a car             
 accident.                                                                     
                                                                               
  RUTH EWIG  strongly supported SB 17 because the person who had               
 irresponsibly spread the deadly disease to another was held                   
 accountable.  Ms. Ewig informed the committee of a newspaper                  
 article about a person who called an ambulance for a friend.  The             
 caller withheld the information about the friend's AIDS infection             
 and mouth to mouth was performed by the ambulance attendant on the            
 AIDS infected person.                                                         
                                                                               
  SHARON SMITH  testified in favor of SB 17 because it makes a person          
 accountable for spreading a deadly disease.  Testing for HIV should           
 be mandatory.                                                                 
                                                                               
 Number 127                                                                    
                                                                               
  LISA SITES  testified in favor of SB 17.  There is so much                   
 information available on social issues, but it is not really                  
 working.  Ms. Sites believed that our society has laws to protect             
 people when others do not take personal responsibility.                       
                                                                               
  ANNE CARPENETTI,  Department of Law, reiterated the department's             
 opposition to SB 17.  The Administration does not take the position           
 that HIV is not a serious disease nor a serious problem.  The                 
 Administration has compassion for the people who are suffering from           
 the disease.  The Administration believes that the best way to deal           
 with HIV is through a public health effort.  Our criminal laws do             
 cover the conduct in question.                                                
                                                                               
  SENATOR WARD  moved to pass SB 17 out of committee with individual           
 recommendations and the accompanying fiscal notes.  There were no             
 objections and it was so ordered.                                             

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