Legislature(1995 - 1996)
03/20/1995 01:34 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SJUD - 3/20/95 SB 91 CRIMINAL TRANSMISSION OF HIV BARBARA BRINK, deputy director of the Alaska Public Defender Agency (APDA), expressed concern about the broad language contained in CSSB 91(HES) and believes the protection of public health would come at the expense of individual rights and freedom under this measure. She stated a bill that seeks to prohibit behavior must describe the behavior in detail so that every person is fully aware of what conduct is prohibited. She added there is a great deal of medical and public information uncertainty as to what conduct could result in the transmission of HIV. The APDA appreciates the elimination of perinatal transmission from prosecution in the committee substitute. Ms. Brink noted the bill criminalizes voluntary blood or organ donations, which is unnecessary since the medical profession adopted screening safeguards for blood and organ donations in 1985. MS. BRINK commented on a second constitutional dilemma in CSSB 91(HES). She explained it shifts the burden of proof to the person who is accused of the crime. In the bill, if the person allegedly exposed to the risk knowingly consents to the conduct, it becomes the problem of the person accused to prove his/her innocence. This creates a trial which can turn into a swearing match of who knew what, when. CSSB 91(HES) also raises privacy concerns regarding consensual conduct, and the confidentiality of medical records. APDA believes the intent of CSSB 91(HES) is excellent and every effort to discourage the transmission of HIV is a positive step, but feels using criminal law to control a communicable disease is not the best way to achieve the goal. MS. BRINK discussed concerns with the penalties and the possibility that criminalizing this behavior will have a negative impact in the struggle against HIV. Medical experts testifying in previous hearings stated this type of penalty will discourage people from getting tested and voluntary behavior modification. Additionally, AIDS has caused a great deal of public fear. Judgements about AIDS and its transmission have become entangled with perceived issues of personal morality; a great deal of discrimination against people with AIDS exists. She expressed concern that punitive efforts will only stigmatize HIV further and make preventive efforts more difficult. She described mechanisms available under existing statutes that can be used to prosecute people who deliberately transmit HIV. She read a resolution passed by the American Bar Association in 1989 that recommends aggressive public education to combat the HIV epidemic, and that civil and criminal remedies play a limited role. She concluded by stating the legal system needs to respect and enforce the constitutional barriers which protect individual rights against unwarranted invasion of privacy and individual liberties. Number 152 SENATOR TAYLOR questioned why Ms. Brink felt the conduct contemplated within the legislation was not well defined, specifically on page 2, line 11. MS. BRINK replied line 13 is the cause for concern since medical science is finding that things originally accepted about HIV transmission are not true, and vice versa. She explained there is a school of thought led by an epidemiologist in Berkeley that proposes HIV is not a causative agent of AIDS, and that it is not, in and of itself, adequate to cause AIDS in a person exposed to the HIV virus. She felt if the medical profession cannot conclude definitively and absolutely what conduct could develop into the transmission of HIV, a lay jury or the individual trying to obey the law will be unable to make such a determination. Number 184 MARGARET BERCK, a lobbyist for the American Civil Liberties Union (ACLU) Alaska Chapter, testified in opposition to CSSB 91(HES). She stated under existing law, some of the conduct described in the bill could be prosecuted under various existing criminal statutes, including attempted murder, attempted assault and reckless endangerment. She described a case in which her client brought charges against a person who infected him with HIV. At Ms. Berck's request, the state prosecutor's office brought criminal charges against the female that allegedly committed the offense similar to the conduct addressed in the bill. SENATOR TAYLOR asked if the prosecution was successful. MS. BERCK stated charges were filed but she did not follow the case since she was no longer involved. SENATOR TAYLOR asked what the charge was. MS. BERCK replied the charge was reckless endangerment. SENATOR TAYLOR noted it requires a specific mental state to convict under reckless endangerment. MS. BERCK was unaware if the charge resulted in a conviction, but commented she was aware of other prosecutions in other jurisdictions for this kind of conduct under general criminal and statutory provisions. Number 218 MS. BERCK commented the ACLU is also concerned the bill may discourage people from determining their HIV or AIDS status; and about the affirmative defense provision. She stated if she was defending someone who was charged with that provision, she would want access to the medical records and all kinds of information about the alleged victim. The privacy issues regarding medical records and information about the defendant would extend to the victim, resulting in a certain amount of unwarranted invasion of the privacy of both. Number 240 SENATOR TAYLOR asked Ms. Berck if she would change her conduct in any way if representing a client who was HIV positive. MS. BERCK answered she has represented people who are HIV positive; that information was provided by other attorneys and probation officers, and through information received in the course of a case. She replied she would most likely be more cautious. She noted she has become less concerned than she was initially, after working with HIV clients. Number 264 SENATOR TAYLOR commented he attended many seminars on this subject around the Capitol in the past and recalled being told at one time there was no danger of HIV transmission between patients and medical personnel. Soon after, cases of such transmission were reported and medical procedures changed. He discussed cases widely reported in the national press in Miami and Chicago in which working prostitutes were arrested. While in custody, it came to the attention of the court they were HIV positive. The judge was then faced with the dilemma of having an HIV infected person in court custody charged with a minor misdemeanor infraction, with no ability to keep that person off the street. As a consequence, similar legislation has been enacted in 27 different states. He reiterated the need to stop people who knowingly engage in this behavior, and ignore or disregard any education about the consequences of their behavior, from continuing to do so. MS. BERCK remarked the criminal statutes address those issues. In the case she referred to earlier, her client was HIV positive after having a relationship with a female who was in the full-blown AIDS cycle. Ms. Berck brought that to the attention of the Juneau prosecutor's office, who filed charges against the female. Her client moved out of the state for treatment reasons so she did not follow the case. She believed outraged citizens could get the same kind of action. Number 330 DR. NAKAMURA, director of the Division of Public Health, read a statement from his staff to the committee. The Division believes testing and counseling to be the most efficient methods of preventing the spread of HIV and fears that CSSB 91(HES) may act as a deterrent to HIV testing, which is the cornerstone of both federal and state programs. Nationally, and in Alaska, bloodbanks screen donors for HIV and other blood-borne pathogens by determining risk behavior and history, and through antibody testing of all donors. Similar mechanisms are in place for organ and tissue donors. The Division also believes CSSB 91(HES) would not provide additional protection for recipients of blood, organs, or tissue. He acknowledged a change made to the original bill which addressed one of the Division of Public Health's initial concerns: the exemption of pregnant women who might transmit HIV to a fetus. He noted a second recommendation to add language to Section 1(a)(1). The word "voluntarily" was added to line 9 to the committee substitute, but the following language was not: "...without the use of reasonable prophylactic measures designed to minimize the risk of transmission of sexually transmitted disease." DR. NAKAMURA explained if an HIV infected person was willing to use those measures available to them to minimize the transmission of the disease, that practice should be acknowledged and not be considered criminal activity. He felt the committee substitute is a much improved version over the original bill, but the Division continues to be opposed to CSSB 91(HES). SENATOR TAYLOR referred to the additional language requested by Dr. Nakamura, and described that language as a forgiveness provision allowing people who know they are HIV infected to not be required to notify their sexual partners of the risk of their behavior because they use prophylactic devices. MR. NAKAMURA replied the likelihood is that the partner would not be infected if prophylactic devices are used. Number 394 SENATOR TAYLOR questioned what the odds of transmission are. MR. NAKAMURA stated the probability for transmission range from 1:1,000 to 1:10,000. SENATOR TAYLOR asked how the odds for pregnancy, when using prophylactics, compare. MR. NAKAMURA did not have statistics. SENATOR TAYLOR did not believe the infected person should be left with the option of disclosing the information to their partner. MR. NAKAMURA stated the concern of the Division of Public Health is whether the act should be criminalized because the likelihood of testing by the people who are most indiscriminate in this behavior would be significantly lower. Number 420 SENATOR TAYLOR read a response from the Legislative Research Agency, regarding a change in the number of HIV tests conducted in Illinois since 1989 when HB 1871 (Criminal Transmission of HIV) became law. According to Illinois Public Health Department epidemiology studies, the number of HIV tests has increased. In 1989 there were zero convictions, three in 1990, two in 1991, and eight in 1992. DR. NAKAMURA noted most HIV infected people are responsible citizens. The bill is intended to address a very small minority of individuals who knowingly transmit the disease, therefore the overall number of people who are tested would not change significantly. Number 441 SENATOR TAYLOR asked if all health care patients are involuntarily tested for HIV when blood work is done. DR. NAKAMURA responded not without the patient's consent. SENATOR GREEN asked if the consent is voluntary. DR. NAKAMURA stated unless there has been a significant change of which he is unaware, the patient must sign a consent form acknowledging such testing will take place, because testing should never take place without counseling. Number 455 SENATOR TAYLOR commented he would expect all health care professionals to want that information for the safety of their personnel. MR. NAKAMURA replied all health care professionals are taught and trained to use special blood-borne pathogen avoidance techniques. He added health care professionals do not know, especially in emergency situations, the HIV status of each patient, therefore they have to use those measures. Number 465 SENATOR TAYLOR asked if Dr. Nakamura had a personal position on CSSB 91(HES). DR. NAKAMURA answered that should a measure be passed, he appreciates the changes made in the committee substitute, and should he support any bill addressing this issue, it would be CSSB 91(HES). Number 476 SENATOR GREEN moved CSSB 91(HES) out of committee with individual recommendations. SENATOR ELLIS objected. A roll call vote was taken with the following result: Senators Green, Miller, and Taylor voted "Yea," and Senator Ellis voted "Nay." The motion carried.