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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= bill was previously heard/scheduled
+ teleconferenced
= 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.
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