Legislature(1995 - 1996)

03/08/1995 09:07 AM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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.                                   

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