Legislature(1995 - 1996)
03/08/1995 09:07 AM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SHES - 3/8/95 SB 91 CRIMINAL TRANSMISSION OF HIV Number 350 CHAIRMAN GREEN introduced SB 91 as the next order of business before the committee. JOE AMBROSE, staff to Senator Taylor, explained that the goal of SB 91 was to put Alaska in a proactive position with regard to individuals who knowingly put others at risk to HIV infection. SB 91 intends to be preventative, punitive, and render a criminal rather than moral judgement. As of December 31, 1994, 272 Alaskans have been confirmed to have AIDS, of those 152 have died. He noted that the Epidemiology Section of the Division of Public Health reports that 540 Alaskans, only those who voluntarily tested through the state section of laboratories, have tested positive for HIV infection as of December 31, 1994. The rate of infection in Alaska is growing. Mr. Ambrose pointed out that under current state law, someone who intentionally attempts to kill another by infecting them with the AIDS virus can be charged with attempted first degree murder. What happens when an individual does not intend to kill with this virus, but puts others at risk? He stated that in 1990 the attorney general suggested that a person who puts others at risk with the AIDS virus could be prosecuted for reckless endangerment. Reckless endangerment is a Class A misdemeanor which prohibits reckless conduct that creates substantial risk to serious physical injury; most would view becoming infected with HIV as more than a serious physical injury. Mr. Ambrose stated that 26 other states have adopted specific laws regarding knowingly transmitting or exposing another to HIV infection. SB 91 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 an exposed individual knows beforehand that the action could result in infection. He said that SB 91 is not intended to punish those who have HIV; the bill intends to protect others who may be unknowingly exposed to the virus. An Illinois Statute that has been in place since 1989 is the basis for SB 91. He informed the committee that this statute has been upheld in the Illinois court system; the bill has been upheld as constitutional. Mr. Ambrose discussed the concern that SB 91 would discourage testing of HIV. He said that HIV/AIDS tests have been increasing in Illinois since this statute has been in place. Mr. Ambrose said that the suggestions Dr. Nakamura would offer regarding the transmission of the virus to unborn children did not pose a problem for Senator Taylor. He recognized that SB 91 may encourage some individuals to avoid being tested in order to alleviate the possibility of criminal prosecution; if the other involved party knows such information then there can be a consensual choice. SB 91 addressed intimate contact, blood transfusions, organ and tissue donations, and drug paraphernalia. SB 91 should encourage safe sex practices rather than discourage testing. Number 423 BARBARA BRINK, Deputy Director of the Alaska Public Defender Agency, informed the committee that she had been a public defender in Alaska for 12 1/2 years. The Alaska Public Defender Agency expressed concern with the broad language of SB 91. The prohibited behavior should be clearly specified in order that the average individual knows exactly what actions are prohibited and are criminal. SB 91 does not provide due process notice. She pointed out that much of what is prohibited is sexual contact which is defined very broadly; there is much debate as to conduct that results in the transmission of HIV. SB 91 would criminalize behaviors that she felt were not intended to be criminalized such as the transfer of HIV from a mother to a fetus. The criminalization of voluntary blood and organ donations seems unnecessary since the medical profession already does routine screening procedures for HIV. Ms. Brink pointed out that SB 91 shifts the burden of proof to the person accused of the crime; normally, the constitution provides that the state must prove someone guilty to the jury beyond a reasonable doubt. She stated that the intent of SB 91 was good; every effort to discourage the transmission of HIV is a positive step. Using criminal law in order to contain a communicable disease does not seem appropriate. She felt that SB 91 would discourage testing. The fact that testing has increased in Illinois since they enacted similar legislation proves nothing; testing across the nation has increased as the number of HIV infections and AIDS has increased. She posed the example of when the state became involved with crack babies. Mothers did not seek medical care that was needed for themselves and their babies due to the criminal consequences of having a crack baby; they would lose their baby and have criminal penalties. Ms. Brink stressed the need to encourage voluntary testing and behavior modification which SB 91 does not achieve. She explained that the moral issues attached to AIDS have created discrimination against people with AIDS. This discrimination poses a barrier to those with the disease and the punitive efforts in SB 91 would further that barrier while making preventative measures more difficult to achieve. She emphasized that there are other serious health care concerns in Alaska besides HIV/AIDS such as tuberculosis and hepatitis. Other health care issues do not place criminal repercussions on the disease in order to stop the spread. There are better manners in which to promote public health. Ms. Brink explained that, as a practicing criminal defense attorney, there are currently laws in Alaska that punish and isolate persons who deliberately, intentionally, or recklessly infect others. She informed the committee of various existing laws one of which would prosecute a person for attempted murder if they intentionally transmit the disease. In conclusion, Ms. Brink urged that SB 91 not be passed in order that the criminal justice system be left untouched in regards to this public health concern. Number 499 SENATOR ELLIS inquired as to the difficulty in proving the infected person's knowledge of their disease; are medical records confidential under all circumstances in a legal proceeding? How would the state prove that an individual knew their HIV status? BARBARA BRINK explained that there are numerous federal and state regulations, as well as rules of evidence and procedure which effect the confidentiality of medical records. Many persons who receive testing not only have confidential testing, but also anonymous testing. There would be no way to identify people who were anonymously tested. Anonymous testing is used in order to prevent the misuse of confidential medical records. SENATOR SALO asked Ms. Brink how a trial would proceed under current law regarding the intentional transmission of the disease as opposed to under SB 91. BARBARA BRINK explained that under current law in Alaska when a person is charged with an intentional crime, the State of Alaska must prove that person's intention beyond a reasonable doubt. Under SB 91, the defense would have to prove that the infection was not intentional because the other person knew of the infection and consented to the conduct; the defense would assume various obligations in order to prove his case to the jury. Number 544 RANDALL BURNS, Executive Director of the Alaska Civil Liberties Union (ACLU), noted that a position paper had been sent to the committee. He expressed concern that there would be an invasion of privacy in order for the state to prove intentional transmission. The case would be the word of two opposing individuals. He reiterated the concerns with the court being able to gather sufficient facts that a person knowingly transmitted the disease. He restated the point that existing law already provides a mechanism to bring claims against such persons as SB 91 addresses. The most serious repercussion of SB 91 would be the possibility of discouraging testing by criminalizing the transmission of the disease. He stated that ACLU was opposed to SB 91. DR. PETER NAKAMURA, Division of Public Health in the Department of Health & Social Services, reiterated that SB 91 does not significantly increase the ability to prosecute persons who knowingly expose others to HIV beyond current law. He too pointed out that SB 91 could discourage testing in order for persons to be precluded from prosecution under this law. Criminalization of HIV exposure could undermine the prevention strategy which encourages testing of those at high risk. TAPE 95-11, SIDE B Number 587 DR. NAKAMURA addressed concerns that SB 91 could discourage high risk women from HIV testing and discourage HIV positive women from receiving prenatal care. There is no way to measure the impact of SB 91 with regards to the possibility of decreasing testing. He assumed that SB 91 would attempt to effect those engaging in high risk behaviors, however, the majority of persons infected with HIV are responsible citizens and would not be in the high risk category. Dr. Nakamura stated that if SB 91 were pursued, he would suggest the following amendment: page 1, line 9, add "voluntary" before "engages" and after "person" add "without the reasonable use of prophylactic measures designed to minimize the risk of transmission of sexually transmitted disease." SENATOR ELLIS asked if the amendments Dr. Nakamura would be suggesting were in writing. CHAIRMAN GREEN explained that she intended to have the written amendments at the March 10, 1995 meeting. DR. NAKAMURA offered another possible amendment on page 1, line 12, after "another" add the following language, "excluding perinatal transmission." SENATOR SALO inquired as to the position of the Department of Health & Social Services. DR. NAKAMURA stated the department's opposition to SB 91. SENATOR LEMAN asked what are the "reasonable prophylactic measures designed to minimize the transmission of sexually transmitted disease" and what are the percentages with such measures. DR. NAKAMURA pointed out that with the use of condoms, the possibility of transmission would be reduced to approximately 1 to 10,000. DEBORAH VANDRUFF, Director of Stop AIDS, reiterated the concern that SB 91 would discourage HIV testing. Currently three quarters of the Alaskan population have not been tested for HIV. Number 535 RITA DE SOUZA, Executive Director of Alaskans Living with HIV, informed the committee that this is a state-wide agency which does prevention education and advocacy services on behalf of persons infected with HIV and AIDS and their family and friends. She applauded the common sense approach of the previous witnesses. She indicated that SB 91 would not encourage testing. This epidemic has been in progress for 14 years. She mentioned the notion of contributory negligence which means that engaging in high risk behavior without some protection indicates that the newly infected person has been negligent in their own infection. Ms. De Souza read the letter that she intended to send to newspapers across the state. In the letter, she said that SB 91 was counter productive in combating HIV disease. She did not understand why existing statutes such as assault, sexual assault, rape and attempted murder were not sufficient. Why not include other sexually transmitted and communicable diseases in with the criminalization of HIV; why is HIV being singled out? She expressed concern that SB 91 would discourage testing for HIV. The World Health Organization states that 90 percent of those infected with HIV do not know they have the disease. She indicated that testing would not work unless it was confidential or anonymous; people desiring testing may need to be warned of the possibility of becoming liable for the transmission of HIV under SB 91. Measures such as SB 91 have been defeated in the lower 48 because such legislation would leave people fearful of being tested and the disease would be driven underground where it would continue to spread. Ms. De Souza felt that legislative concerns regarding HIV could be better addressed through education prevention. She expressed disillusionment that last year's Senate killed the healthy student bill. She pointed out that the state-wide survey done by the Epidemiology Section every two years for the past six years has expressed the need to teach HIV education in public schools; 96 percent of those polled said that children should be taught how to protect themselves. SB 91 would address the rare case in which an individual would purposely transmit HIV to another. Comprehensive HIV education to teens and adolescents would save young lives; they are the fastest growing group of those contracting HIV, according to the CDC. Number 479 SENATOR LEMAN said that he was glad to meet Ms. De Souza. He indicated that Ms. De Souza had made a number of comments in the letter that she read that were not true. He suggested that Ms. De Souza review the record in order to find the truth. In regard to the mandatory sex education bill, sex education was already being done so why mandate what was being practiced? He discussed the amendment that he had offered on past legislation. He too wanted positive measures to end the spread of HIV and he too wanted to educate the public about HIV. He said that Ms. De Souza was doing an injustice when she distorted his efforts. CHAIRMAN GREEN indicated the need to begin the presentation by the Division of Public Assistance. RITA DE SOUZA expressed the need to talk with Senator Leman. She pointed out that her facts came from the CDC, the World Health Organization, and the Epidemiology Section of the Alaskan Department of Health & Social Services. She informed the committee of a poll of parents by the Department of Education which found that 52 percent of parents said that their children were receiving sex education as opposed to the 100 percent that Senator Leman suggested. SENATOR ELLIS requested that SB 91 be held until next week because he would be unable to attend Friday's meeting due to state and personal business. He indicated that he had questions for the sponsor. He hoped that this committee would spend more time on SB 91. SENATOR SALO made the same request.