Legislature(1995 - 1996)
03/20/1995 01:34 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
March 20, 1995
1:34 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
Senator Johnny Ellis
MEMBERS ABSENT
Senator Al Adams
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 91(HES)
"An Act creating the crime of criminal transmission of human
immunodeficiency virus (HIV)."
CS FOR HOUSE BILL NO. 9(FIN)
"An Act relating to recovery of damages from a person having legal
custody of a minor when property is destroyed by the minor, and to
recovery from a minor's permanent fund dividend for injury or
damage caused by the minor."
CS FOR SENATE BILL NO. 85(STA) - SCHEDULED BUT NOT HEARD
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
PREVIOUS SENATE COMMITTEE ACTION
SB 91 - See Health, Education & Social Services minutes dated
3/8/95 and 3/10/95.
HB 9 - No previous Senate action.
WITNESS REGISTER
Barbara Brink
Public Defender Agency
Department of Administration
900 W 5th Ave., Ste. 200
Anchorage, AK 99501-2090
POSITION STATEMENT: Opposed to CSSB 91 (HES)
Margaret Berck
American Civil Liberties Union
227 7th St.
Juneau, Alaska 99801
POSITION STATEMENT: Opposed to CSSB 91 (HES)
Peter Nakamura, MD
Division of Public Health
Department of Health & Social Services
P.O. Box 110610
Juneau, Alaska 99811-0610
POSITION STATEMENT: Opposed to CSSB 91 (HES)
Rep. Gene Therriault
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Sponsor of HB 9
Margot Knuth
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Supported CSHB 9 (FIN)
ACTION NARRATIVE
TAPE 95-13, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:34 p.m. The first order of business was CSSB 91 (HES).
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.
SJUD - 3/20/95
HB 9 DAMAGE TO PROPERTY BY MINORS
Number 486
REPRESENTATIVE THERRIAULT, sponsor of HB 9, testified before the
committee. He read a sponsor statement into the record. HB 9 is
a victims' rights bill, which encourages parents to accept
responsibility for damages caused by juveniles and to provide
recourse for victims who have lost property. It is based on the
principle that the person having custody of the juvenile who has
caused the damage is monetarily responsible for the loss. HB 9
increases the amount the victim may recover from $2,000 to $10,000.
REPRESENTATIVE THERRIAULT explained changes made by the House
Judiciary Committee. The words "as the result of knowing or
intentional act," were added to limit liability to damages that
were caused purposely, but also includes unintentional damages that
might be caused as the result of the intentional act. That
language would cover damages resulting from a situation in which a
person breaks into a home in the winter to steal a television by
breaking a window to gain entry, causing additional damage
sustained as a result of the broken window, i.e. frozen pipes. The
House Judiciary committee substitute added a new section to
incorporate the intent of HB 36. It updates the permanent fund
dividend law to permit the taking of part, or all, of the dividend
to satisfy judgement. It increases the amount that can be
recovered from the minor's permanent fund dividend for injury or
damage caused by the minor from $2,000 to $10,000 to maintain the
parallel recovery provisions.
REPRESENTATIVE THERRIAULT noted the House Finance Committee further
revised HB 9 to include a provision that relieves the legal
custodian from liability in a runaway situation, when the runaway
report is filed by a parent before the damage occurs.
REPRESENTATIVE THERRIAULT reviewed the history of this measure. A
similar bill was acted upon by the Senate Rules Committee during
the last session. The Senate Rules Committee added a provision
allowing the parent to mitigate the liability by showing that they
had taken action to try and control their child. He was not
opposed to such an amendment, and stated he preferred that language
to the blanket provision relieving the parent from liability by
declaring the child a runaway.
Number 500
SENATOR TAYLOR referred to page 2, and commented that the
roadblocks placed in front of recovery in existing statute have
probably resulted in no one ever bringing a writ of execution. He
cited the attachment of a permanent fund dividend provision on
lines 23 through 28. Before an execution can be made on the
dividend, a judgement is required, and the crime must be defined as
a crime against a person that injured the plaintiff, and for which
the minor was adjudicated a delinquent, or convicted as an adult.
He commented if the Department of Health and Social Services
chooses not to follow through with the petition and actually have
a decree rendered, which is normal procedure, often the juvenile
will plea out and enter into something short of an adjudication
making a declaration of delinquency, which takes a severe offense.
He explained under the provisions in CSHB 9(FIN) the victim would
have to be injured by the juvenile and all of the state agencies
would have to follow through with their procedures before the
victim could sue for the amount of $2,000.
REPRESENTATIVE THERRIAULT clarified the amount of damages one could
sue for is not capped at $2,000; that is the cap on the dividend
amount. SENATOR TAYLOR felt the hurdles created by the measure
would discourage anyone from seeking restitution. REPRESENTATIVE
THERRIAULT stated he was amenable to using the bill to change
existing statutory language. SENATOR TAYLOR suggested ending
Subsection (A) of Section 3 on line 22.
Number 570
MARGOT KNUTH, assistant attorney general with the Criminal Division
of the Department of Law, commented CSHB 9(FIN) is consistent with
one of the Governor's crime bills which increases opportunities for
restitution by juveniles and their parents, therefore she assumed
the Administration would support the measure.
SENATOR TAYLOR cited the provisions for recovery on page 2, and
reiterated that they were too restrictive to be useful. MS. KNUTH
replied it is the civil division rather than the criminal division
that works with juveniles, therefore she could not provide a
definitive answer, but she did not feel the provisions were
onerous.
TAPE 95-13, SIDE B
SENATOR TAYLOR discussed the Fairbanks school system damage, and
stated no money from permanent fund dividends could be collected
according to the provisions in this measure. MS. KNUTH agreed, in
the case of a separate civil action brought with respect to that
incident. She noted the Governor's crime bill would allow
restitution in this situation as part of a delinquency
adjudication.
SENATOR TAYLOR noted line 26 contains the word "or."
REPRESENTATIVE THERRIAULT explained that requires the plaintiff to
jump through less hoops.
SENATOR GREEN asked if child support and other payments must be
made before restitution. MS. KNUTH agreed, and stated child
support is the number one obligation that must be fulfilled before
anything else. Court ordered restitution would be the second
obligation. SENATOR TAYLOR stated once restitution has been
defined, the greater qualifier would be applicable. This
restitution standard would apply to all people who receive a
permanent fund dividend, and as a result the court could order
restitution under any of the provisions, but Subsection (A) states
damages can be covered under civil action if injury occurs, and to
cover property damage.
SENATOR ELLIS asked if the Governor's bill would be before the
committee in the near future. SENATOR TAYLOR replied affirmatively
but it is still in the House. He commented he would like to
further consider Subsection (A) and its possible deletion, and hold
it over until Wednesday.
REPRESENTATIVE THERRIAULT clarified that any judgement made under
this bill would have to account for the parent's financial
situation, therefore no one would end up bankrupted by the bill.
SENATOR TAYLOR added an individual has to earn over $34,000 per
year before an execution can be made on their wages.
SENATOR TAYLOR adjourned the meeting at 2:29 p.m.
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