Legislature(1997 - 1998)
04/11/1997 09:09 AM Senate HES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 17 CRIMINAL TRANSMISSION OF HIV
Number 346
CHAIRMAN WILKEN introduced SB 17 as the last order of business
before the committee.
JOE AMBROSE , Staff to Senator Taylor, read the following Sponsor
Statement into the record:
Senate Bill 17 was introduced with the goal of putting Alaska in a
pro-active position when it comes to dealing with individuals who
knowingly place others at risk of HIV infection. SB 17 is intended
to be preventative as well as punitive and is intended to render a
criminal rather than moral judgement.
As of December 31, 1996, 369 Alaskans had been confirmed to have
AIDS. That's since tracking began in 1982. Of these cases, 194
are known to have died.
The Epidemiology section of the Division of Public Health reports
that as of December 31, 1996, 640 Alaskans had tested positive for
HIV infection. That number represents only those who have
voluntarily tested through the State Section of Laboratories.
The statistics show that HIV/AIDS affects both male and female,
across all age groups and without respect to race or residence.
The sad fact is that the rate or infection in Alaska is increasing.
If someone intentionally sets out to kill another person by
infecting them with the AIDS virus, they can be charged under state
law with attempted first degree murder. But, what do we do with
the person who does not "intend" to kill, but who still places
others in jeopardy? In 1990, the Attorney General's office
reviewed that question and suggested that ...quote..."it might be
possible to prosecute the person for reckless endangerment"... end
quote.
That is a class A misdemeanor prohibiting reckless conduct which
create a "substantial risk of serious physical injury".
Most people would equate becoming infected with HIV as something
more than a "serious injury".
Twenty seven other states have seen fit to adopt specific laws
dealing with criminal penalties for knowingly transmitting or
exposing another to HIV infection. It would only be prudent for
Alaska to have such a statute on the books.
SB 17 is brief and to the point. It 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 the person
exposed knows beforehand that the action could result in infection.
The bill also provides a provision excluding perinatal transmission
of the virus and to assure that an individual is not prosecuted for
an involuntary act.
SB 17 is not intended to punish those who have contracted HIV. It
is intended to protect others who may be unknowingly exposed to the
virus by what should be a criminal act of irresponsibility.
Mr. Ambrose informed the committee that in drafting SB 17, the
Illinois statute was used almost verbatim which was adopted in
1989. He noted that the Illinois statute was included in the
committee packet as well as a summary of the laws passed in other
states. The committee packet also includes two court rulings on
the Illinois law. On April 6, 1994 the Illinois Supreme Court held
that the statute did not violate state or federal constitutional
protections for free speech or for free association and was not
unconstitutionally vague.
Number 287
With regard to the impact on HIV testing in Illinois, the Illinois
Department of Health reported that after the law was on the books
for six years, testing for HIV/AIDS had increased not decreased.
This year the Illinois Department of Health reported a decrease in
public testing which was attributed to the increased availability
of testing in the private sector as well as home testing. The
Alaska Department of Health reported that the majority of cases
resulted in consensual conduct. Mr. Ambrose asked if consent would
have been given if the facts were known first. SB 17 merely places
the responsibility on the infected person to advise the other
person involved.
THEDA PITTMAN , Alaska Civil Liberties Union, said that ACLU opposed
SB 17 on constitutional grounds and the bill would undermine the
efforts of the public health system. HIV transmission is a public
health problem not a criminal problem. Anyone with a transmittable
disease should understand how to avoid infecting others and utilize
the appropriate precautions. In the rare instances when an
individual recklessly or intentionally transmits HIV, Alaska law
already provides the opportunity for prosecution. Therefore, this
language will not add to the prosecutor's tools, but will likely
decrease voluntary testing and the education management which
typically accompanies testing and notification. Ms. Pittman
pointed out that on page 2, lines 11-13 and lines 1-5 raise due
process concerns regarding whether the state is providing adequate
notice to prohibited behavior. The language on lines 1-5 regarding
the affirmative defense shifts the burden of proof to the defendant
as well as suggesting that the defense must seek information about
the person allegedly exposed that would otherwise be confidential.
Ms. Pittman stated that it made little sense to add a new law when
the current law contains adequate provisions. Ms. Pittman urged
the committee's opposition to SB 17.
Number 241
DR. JOHN MIDDAUGH , Chief of the Section of Epidemiology in DHSS,
opposed SB 17. The existing laws enable criminal prosecution and
punishment of egregious behaviors of intentional transmission of
HIV. Passage of SB 17 will discourage testing and participation in
efforts to identify those who have potentially been exposed.
Public health has had experience over many decades that illustrate
that criminalization of infections harms the public health efforts
to control disease transmission. Diseases such as Hepatitis B,
Hepatitis C, the Herpes virus are more likely to be transmitted in
the conducts associated with the transmission of HIV. Dr. Middaugh
was also concerned about the definition of "intimate contact" which
is so broad and could extend to many common activities that pose no
risk for disease transmission of HIV or other pathogens. Sports,
health care, EMT activity, etc. could fall under the definition of
"intimate contact".
Dr. Middaugh pointed out that the title of SB 17 reads, "An act
creating the crime of criminal transmission of human
immunodeficiency virus (HIV)" yet the bill has provisions that show
that transmission is not required for criminalization of a
potential exposure. Exposure is only when a person has contact
with the virus regardless of whether the virus actually infects
another person. In most exposures to HIV, no transmission or
infection of the exposed person occurs. Dr. Middaugh emphasized
that the department is concerned about HIV and the department's
efforts are aimed at the prevention of transmission and spread of
the disease. SB 17 will harm preventive and public health efforts
and therefore, Dr. Middaugh requested that SB 17 not be passed.
CHAIRMAN WILKEN noted the presence of Anne Carpeneti, Department of
Law, and Barbara Brink, Alaska Public Defenders.
ANDREA NENZEL , Executive Director of the Alaska Native Assistance
Association, explained that the Alaska Native Assistance
Association is a private nonprofit group which provides direct
services to persons living with HIV infection and provides
education and behavior changes for the prevention of HIV infection.
The Alaska Native Assistance Association Board and Agency are
adamantly opposed to SB 17. SB 17 will deter efforts to prevent
further HIV infection in Alaska by discouraging testing while
promoting further ignorance and discrimination. Testing and
appropriate counseling and care regarding responsible behavior to
prevent transmission is the most effective way to reduce HIV
transmission. Ms. Nenzel reiterated that the existing law provides
adequate means to prosecute and punish anyone who intentionally or
recklessly transmits HIV. SB 17 will open the door to numerous
suits and the bill is fraught with potential for abuse by unhappy
partners or people with grudges. Ms. Nenzel echoed the comments
regarding the shift of the burden of proof of innocence on the
accused person. Ms. Nenzel urged the committee to vote against
SB 17.
Number 164
BONNIE MCCORQUODALE , Executive Director of the Interior AIDS
Association, urged the committee to reject SB 17 and any other
effort to criminalize HIV transmission. Ms. McCorquodale has
worked in the HIV prevention field for almost 10 years. The
prevention of the spread of HIV is a public health issue not a
issue that can or should be addressed by the criminal justice
system. Sound public health policy encourages testing,
notification of partners, treatment, and knowledge about the
protection of others. SB 17 will discourage testing and other
potential life-saving services. HIV is preventable and persons can
protect against it. SB 17 only holds a portion of the population
responsible. Ms. McCorquodale informed the committee that the
Secretary of Health & Social Services and the National Institutes
of Health confirmed that syringe exchange programs reduce the
spread of HIV. The language in the bill which makes the exchange
of nonsterile equipment a crime may work against one of the most
effective methods for reducing HIV in Alaska. Ms. McCorquodale
emphasized that SB 17 is discriminatory and creates a criminal
class based on health status and would set prevention efforts back
years.
CAREY CUMMINGS , Interior AIDS Association of Alaska, opposed SB 17.
Ms. Cummings said that effective public policy encourages people to
make healthy individual choices and does not prohibit, limit, or
prosecute on the basis of biological behavior. SB 17 is not
prevention. By criminalizing the exchange of nonsterile
intravenous drug use equipment, those people utilizing such
programs could be prosecutable. Such criminalization would
increase the nonsterile intravenous needles on the street as well
as increasing the likelihood of the transmission of the virus. Ms.
Cummings encouraged the committee to reject SB 17 because of its
discriminatory nature.
ANDY BINKLEY, Community Outreach Worker with the Interior AIDS
Association, opposed SB 17 because it treats HIV transmission
different from other diseases which could be just as life
threatening. Mr. Binkley opposed the intravenous drug
paraphernalia language which seems headed in the wrong direction.
BARBARA BRINK, Director, Alaska Public Defender Agency, was
concerned with using criminal laws to promote public health instead
of using testing, education, and behavior modification. Ms. Brink
assured the committee that Alaska laws are already sufficiently
available to prosecute any person who either intentionally or
recklessly transmits the HIV virus. She disagreed with the 1980
assessment that one can only be charged with reckless endangerment.
The Alaska assault statutes vary with regard to what one can be
charged with based both on the person's state of mind, whether the
action was intentional, reckless, or negligent, and on the result
of that conduct. Reading from the assault in the first degree
statute, Ms. Brink clarified that a person commits assault if the
person knowingly engages in conduct that results in serious
physical injury to another under circumstances manifesting extreme
indifference to the value of human life. Someone who engages in
that type of behavior can be prosecuted for assault in the first
degree - or assault in the second degree, if a person recklessly
causes serious physical injury to another person. The Alaska
Criminal Code is based on the Oregon Criminal Code which recently
was successful in prosecuting someone when the person engaged in
such intentional behavior.
Number 045
Ms. Brink expressed concern with how broadly the statue is drafted.
The broad definition of "intimate contact" makes unlawful not only
unsafe sex, but safe sex. There is no provision for reasonable
prophylactic measures - something education efforts have been
trying to encourage. A person playing basketball, for instance,
who incurs a bleeding wound could be charged unless he/she could
prove that he/she informed everyone of his/her HIV positive status
and that the people willingly assumed that risk. The meaning of
reasonable efforts to inform medical personnel is unclear. Given
universal precautions, this seems an unnecessary addition. With
regard to the nonsterile paraphernalia provision, needle exchange
programs have been proven to be very effective. Alaska has been
chosen to receive a national grant to study the effect which she
believed would come to a halt because people would be liable for
turning in used and nonsterile needles.
Ms. Brink was concerned with the shifting of the presumption of
innocence. Normally going to trial with a criminal charge, one is
presumed to be innocent, but in this case to prove that the person
knowingly engaged in that conduct is an impossible task.
TAPE 97-39, SIDE A
Ms. Brink said that the American Bar Association has considered
using criminal laws to try to curb the transmission of HIV and
actively adopted a resolution to discourage that. A program of
public education about HIV should be implemented as the most
effective method of deterring behavior which poses a high risk of
transmitting HIV.
SENATOR LEMAN pointed out the definition for "intimate contact" on
page 2. He believed at basketball games it was policy to identify
those players who are carrying HIV which would be covered in the
subparagraph about intimate contact. BARBARA BRINK agreed that in
such organizations and circumstances as the NBA, precautions have
been taken, but "any contact" is so broad and would not be limited
to the NBA or NCAA. What if there was a car accident, more than
one person was injured, there's bodily fluids, and the people in
the car the person has been riding with have not been notified. It
is not limited to only sexual contact. SENATOR LEMAN doubted that
anyone voluntarily engaging in intimate contact would be in a car
accident.
RUTH EWIG strongly supported SB 17 because the person who had
irresponsibly spread the deadly disease to another was held
accountable. Ms. Ewig informed the committee of a newspaper
article about a person who called an ambulance for a friend. The
caller withheld the information about the friend's AIDS infection
and mouth to mouth was performed by the ambulance attendant on the
AIDS infected person.
SHARON SMITH testified in favor of SB 17 because it makes a person
accountable for spreading a deadly disease. Testing for HIV should
be mandatory.
Number 127
LISA SITES testified in favor of SB 17. There is so much
information available on social issues, but it is not really
working. Ms. Sites believed that our society has laws to protect
people when others do not take personal responsibility.
ANNE CARPENETTI, Department of Law, reiterated the department's
opposition to SB 17. The Administration does not take the position
that HIV is not a serious disease nor a serious problem. The
Administration has compassion for the people who are suffering from
the disease. The Administration believes that the best way to deal
with HIV is through a public health effort. Our criminal laws do
cover the conduct in question.
SENATOR WARD moved to pass SB 17 out of committee with individual
recommendations and the accompanying fiscal notes. There were no
objections and it was so ordered.
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