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
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.