Legislature(1995 - 1996)

03/20/1995 01:34 PM JUD

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

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