Legislature(1993 - 1994)
02/16/1993 03:00 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 109: "BLOOD TESTS ON SEX CRIME PERPETRATORS CHAIR TOOHEY reconvened the meeting at 3:40 p.m., announced she was chairing the meeting, and brought HB 109 to the table. Members present were Reps. Bunde, G. Davis, Kott, Olberg, B. Davis and Brice. Absent were Reps. Vezey and Nicholia. REP. BUNDE moved that CSHB 109 be utilized as a working draft of the bill. Hearing no objection, the committee took up CSHB 109 as a working draft. CHAIR TOOHEY announced that CATHY KATSEL, GRANTS ADMINISTRATOR FOR THE DEPARTMENT OF PUBLIC SAFETY, was on line via teleconference to answer questions. Number 510 REP. PETE KOTT, PRIME SPONSOR OF HB 109, introduced himself and presented CSHB 109. He read a statement in support of the bill, calling it a victims' rights bill addressing a sexual assault victim's fears of being infected with HIV or other communicable diseases. If a defendant tests positive for HIV antibodies, the victim would have early warning of possible infection. The bill requires that a victim be offered information, counseling and referral to help make informed health decisions. While a negative test is no guarantee that infection did not take place, the information could provide a victim some valuable hope. Since 1987, according to Rep. Kott, 24 states have enacted similar legislation. House Bill 109 requires the court to order the test upon a victim's request and the court's finding of probable cause of attack likely to result in infection. Rights to privacy in Alaska might make it difficult to follow other states' practices of testing at arrest or arrest. Rep. Kott said congress indicated that states are responsible for notifying victims after their attackers are convicted, of whether the attackers carry HIV. Congress made receipt of some federal grants contingent on the assumption of such responsibility. Failure to pass a bill similar to HB 109 would cost Alaska approximately $185,000 in FY94, he said. Number 555 REP. NICHOLIA handed out a document on Department of Health and Social Services letterhead entitled, "Technical Issues Concerning House Bill No. 109," and referred to the third page, "Problems with the language of certain sections of HB 109, and the recommendation to change the word "communicable" to "sexually transmitted disease (STD)." She asked for an amendment making such changes in page 3, section (d), and page 4, section (h), of the work draft for CSHB 109. Number 578 REP. BRICE moved the amendment. REP. KOTT asked if there was a motion on the floor, and asked whether hepatitis B was included as a sexually transmitted disease (STD). REP. OLBERG asked why limit the range of diseases of which the bill requires notice. REP. BRICE responded, referring to page 3 of the "Technical Issues" document. He said that changing "communicable" to "sexually transmitted diseases" was consistent with the nature of the bill as relating to sexual offenses. Number 597 REP. OLBERG said he did not read it that way. He stated there must be some diseases that can be spread sexually that are not defined as a sexually transmitted disease in a general sense. Hepatitis B, for example, is not generally considered an STD, he said. He asked again, Why limit the bill? He said that whenever the issue of victim's rights arises, "we get picky." TAPE 93-14, SIDE B Number 000 DR. PETER NAKAMURA, DIRECTOR OF THE DIVISION OF PUBLIC HEALTH, said using the word "communicable" diseases would hugely expand the range of diseases covered, such as measles and chicken pox, which would be outside the scope of HB 109. REP. KOTT asked again whether hepatitis B would be considered an STD under the amendment. DR. NAKAMURA said no. REP. BRICE mentioned that the fiscal note referred only to tests for HIV and serum tests. He asked whether using the word "communicable" would affect the fiscal note. DR. NAKAMURA said such action would significantly increase the fiscal note by including other communicable diseases. Number 075 REP. VEZEY objected to the "Technical Issues" document, saying it arrived during the meeting and was not signed or addressed. CHAIR TOOHEY asked Rep. Kott if he had any answer to the questions raised by the "Technical Issues" document. REP. KOTT responded that he was still studying the document, having received it along with other members. He said he had no difficulty including STDs in the bill as long as it also provides for hepatitis B, a disease which concerns administrators of prisons and jails. REP. OLBERG said he had reservations about the document. He objected in particular to page 2, second paragraph, which encouraged providing victims of sexual assault with, among other things, individualized counseling regarding safer sex, as more important than blood testing of the assailant. Number 089 REP. BUNDE said that recommendation seemed to put the responsibility for the assault on the victim. He asked how hepatitis B was transmitted, how it poses a health hazard, and why it was included in the bill. REP. KOTT said hepatitis B is easy to transmit and does not require sexual penetration. Institutions are therefore more concerned about inmates transmitting hepatitis B than AIDS, which requires closer contact. (Rep. Olberg left at 3:57 p.m.) REP. BUNDE said the bill mentions sexual assault and penetration, and hepatitis B did not seem to fit in well with a sexual assault bill. REP. KOTT invited a staff member to comment. Number 100 JACK PHELPS, LEGISLATIVE AIDE TO REP. KOTT, said the bill has been characterized as an HIV testing bill, but the drafters' concerns for victims extend beyond HIV tests. It seemed that, as hepatitis B could be transmitted during sexual assault, it might be appropriate for the bill to require hepatitis B testing as well. He said he had no objection to changing "communicable" to STD, as long as provisions were made for hepatitis B. He noted that the fiscal note from Health and Social Services (HSS) included the cost of screening for hepatitis B. Number 154 REP. NICHOLIA said the "Technical Issues" document she passed out was ordered from the HSS Division of Public Health's epidemiology section in Anchorage. REP. BETTYE DAVIS asked Dr. Nakamura's comments on including hepatitis B in the bill. DR. NAKAMURA said the was glad the emphasis was no longer solely on HIV and AIDS. He said the bill, by expanding to include STDs detectible by blood tests, also included syphilis. He expressed surprise that hepatitis B was included because it is not an STD, though it can be tested through a blood test. Number 181 REP. KOTT responded that he believed hepatitis B could be transmitted sexually, and results from early testing of sexual assailants could be of benefit to their victims. DR. NAKAMURA said hepatitis B is blood-borne, and he did not see why it should be included in HB 109. CHAIR TOOHEY asked if the committee would agree to include STDs and communicable diseases. DR. NAKAMURA said such an action would broaden the bill's scope. Number 210 REP. BUNDE said he basically supports the bill, but said if hepatitis B was a problem with inmates, then hepatitis B testing should be required of all inmates, not just those arrested and charged with sexual assault, for their health and that of others. He reminded the committee of the amendment under consideration to change "communicable disease" to "sexually transmitted disease" and noted Rep. Kott's desire for hepatitis B testing to be included. REP. G. DAVIS said it looked like the bill needed more amending so as to accommodate STDs and hepatitis B testing. Number 230 CHAIR TOOHEY asked Dr. Nakamura whether hepatitis B was serious enough a problem in jails that it deserved attention by the legislature. DR. NAKAMURA responded that he would not want to see the problem addressed in HB 109. He said the bill addresses HIV, then expanded to other STDs detectible by blood tests. Though hepatitis B is a problem with significant numbers of inmates, it is a different issue. REP. KOTT asked Dr. Nakamura whether victims of sexual assault were at risk from hepatitis B. DR. NAKAMURA said he could not testify 100 percent against that, but he was not aware that such a risk was common. Number 265 CHAIR TOOHEY asked whether there were ways to treat hepatitis B after exposure. DR. NAKAMURA responded yes, that immune globulin treatment soon after exposure could immunize a victim against the disease. REP. KOTT said that, in light of Dr. Nakamura's testimony, he would withdraw his attempt to include hepatitis B in HB 109. Number 280 REP. BUNDE restated the amendment to replace the words "communicable disease" with "sexually transmitted disease." REP. G. DAVIS said he had seen hepatitis B referred to only in the fiscal note. JACK PHELPS said hepatitis B was included in the bill only under definition of communicable diseases, and excluding it from the bill would affect the fiscal note. CHAIR TOOHEY called for a roll call vote on the amendment. REP. VEZEY asked to see the amendment in writing. Number 305 REP. NICHOLIA pointed out the areas in the work draft that would be affected by the amendment. The committee members asked informal questions on the changes, discussed possible wordings among themselves, and restated the amendment. Number 379 CHAIR TOOHEY called for a voice vote on the amendment to change "communicable diseases" to "sexually transmitted diseases" in several places in the working draft. Hearing no objection, Chair Toohey declared the amendment passed. Number 385 MARGOT KNUTH, OF THE DEPARTMENT OF LAW'S CRIMINAL DIVISION, said she had concerns about some language in the bill as it concerned victims' rights. She asked whether it would be possible to make changes to allow prosecuting attorneys to have blood tests done on victims of sexual assault with or without a victim's request. She said that would help relieve the frequent reluctance of young victims to take responsibility for pushing prosecution forward. She said prosecutors would not insist on such tests if they were harmful to the victim. REP. VEZEY stated that a crime cannot be prosecuted without a complainant. MS. KNUTH said it was true that there must be some legal proceeding for a prosecutor to be involved, but the Department of Law wanted the bill to allow either a victim, or the prosecutor, to request the blood test. REP. VEZEY repeated his statement that prosecutors represented the victim. MS. KNUTH demurred, saying that prosecutors represent the state, and will prosecute in cases in which the victims did not want the prosecution to continue. This frequently occurs in cases such as domestic violence or intra-family sexual abuse, she said. REP. BUNDE asked if there could be a situation in which a victim could not request the blood testing, but in which it would be in the victim's best interest. CHAIR TOOHEY interjected, noting that standard procedures for emergency room treatment of rape victims include treatment with antibiotics to combat STDs. MS. KNUTH said that a situation such as Rep. Bunde described was possible. Number 494 REP. KOTT asked if Ms. Knuth's proposed amendment left prosecutors the right to require a blood test in defiance of the victim's wishes. MS. KNUTH responded yes. She said it could not hurt the victim to compel the assailant to submit to a blood test, and that such a test could provide some factual information that could help the victim. Number 510 MR. PHELPS asked what use a blood test on an assailant might be to a victim who did not want to know the results. MS. KNUTH responded that the information would be available when the victim had a change of heart. REP. BRICE asked whether allowing blood tests without a victim's authorization might provide information that could be conveyed to any institution in which the defendant might be detained. MS. KNUTH agreed that such information could be made available to such an institution. MR. PHELPS suggested making provisions in the bill to allow a victim's parent or guardian to request blood tests of an assailant. MS. KNUTH said that would be an appropriate consideration, as it is unreasonable to assume a three-year-old would request such a test. Number 549 CHAIR TOOHEY and Ms. Knuth discussed the most appropriate amendment language to effect the changes Ms. Knuth suggested. TAPE 93-15, SIDE A Number 000 CHAIR TOOHEY called for a vote on the amendment to add language to page 2, line 1, of the working draft: "...juvenile petition, the parent or guardian, or the prosecuting attorney on the behalf of an alleged victim, may ..." She called for a voice vote, and then, upon hearing opposition, called for a roll call vote on the amendment. Those voting in favor of the amendment were Reps. Toohey, Bunde, G. Davis, Kott, B. Davis, Nicholia, Brice. Those voting against the amendment were Rep. Vezey. Rep. Olberg was not present. CHAIR TOOHEY invited Ms. Knuth to offer her next concern with HB 109. Number 030 MS. KNUTH offered an amendment that would avoid the need for a separate hearing, complete with cross-examination, in order to establish probable cause and therefore allow the blood test. Instead of waiting until after conviction to allow such tests, she suggested allowing a judge to rely on evidence presented in a grand jury or preliminary hearing. Number 050 REP. BUNDE said it might be necessary for committee members to see the amendment in writing. MS. KNUTH read the amendment aloud, striking from page 2 line 5 and 6 the words "if such a determination has not already been made", and striking from lines 8, 9 and 10 the words, "The court may hold a hearing at which evidence may be received concerning the probable cause determinations required by this subsection." The amendment adds the following language to line 10: "In making the determination the court may rely on the evidence presented at a grand jury proceeding or preliminary hearing." Number 075 CHAIR TOOHEY indicated that Ms. Knuth's proposed amendment was included in the working draft of HB 109, and invited Ms. Knuth to present her next amendment. MS. KNUTH referred to elements of the bill on page 5 that made disclosure of the identity of people taking blood tests ordered under the bill a class C misdemeanor. She said the ban on disclosure, as written, also bars victims from naming their assailant as possibly infected. She suggested making such disclosure a contempt of court violation, and leaving it up to a judge's discretion to impose sanction for such disclosure. Number 140 REP. VEZEY said he could not conceive of barring someone who contracted AIDS from an assailant from telling the world about it, or of any court punishing them for doing so. REP. KOTT deferred the issue to Jerry Luckhaupt, who drafted the bill. Number 150 JERRY LUCKHAUPT, LEGISLATIVE COUNSEL FOR THE DIVISION OF LEGAL SERVICES, said HB 109 allows victims to make some disclosures about his conditions, to keep his family safe, secure medical treatment, and achieve other aims. He said the bill could be modified to meet the committee's intent. Number 190 REP. VEZEY said he was unhappy at creating a misdemeanor, which is punishable by up to a year in prison, which can cost up to $50,000. REP. BUNDE expressed concerns about victimizing the victim gain for proclaiming the facts of an attack. He expressed hope that the contempt of court provision would be a good compromise. Number 209 REP. VEZEY asked whether any health care professional who disclosed results of a blood test would not be subject to sanction. CHAIR TOOHEY responded that most hospitals do not release such information without a patient's consent as a matter of policy, not state law. REP. NICHOLIA asked what contempt of court meant and what punishments it carried. MS. KNUTH responded that it is a sanction for violating a court order. While it is punishable by up to $300 in fines, a judge also has the latitude to require or forgo an appearance before the bench, which can be an intimidating procedure. Number 232 REP. KOTT said that, based on Ms. Knuth's testimony, he had no objection to her amendment concerning disclosure. He said the intent of the bill was not to prevent the victim, but correctional authorities, health professionals or others from disclosing information on blood testing. REP. BUNDE suggested specifically giving victims the right to disclose such information. MS. KNUTH said it does look funny to grant victims an exemption from the disclosure sanction. She hoped to avoid having two standards for the rule. REP. BUNDE moved the amendment. MS. KNUTH read the amendment, which would change page 5, line 15, striking the words "is guilty of a class A misdemeanor" and adding "may be held in contempt of court." REP. VEZEY asked whether making disclosure against the law, and providing a contempt of court penalty would not be redundant. CHAIR TOOHEY called an at-ease at 4:49 p.m. She called the meeting back to order at 4:51 p.m. Number 320 MS. KNUTH said including the contempt of court language would demonstrate the legislature's intended method of sanction for disclosure, and as such, would be useful. REP. KOTT expressed satisfaction with the amendment, saying it is better to be safe than sorry. CHAIR TOOHEY reread the amendment, asked for objection, and heard none. REP. B. DAVIS asked why the bill does not allow the court to order the blood test within seven days after arrest. MR. LUCKHAUPT said that was to avoid giving the test to people until it was reasonably clear that the charges would not be dropped, which, when it happens, occurs in the first week after arrest. It also allows time for a defendant to secure legal counsel before the test. REP. B. DAVIS asked why the hurry to test, when it may take months for evidence of recent HIV infection to appear in an assailant. She suggested performing the test later. Number 343 MR. LUCKHAUPT said the bill sponsors want the tests soon after arrest so victims can seek treatment if the test shows a chance of infection. REP. B. DAVIS asked Rep. Kott about other states with similar laws, and asked when those laws require testing of assailants. REP. KOTT responded that the different laws in other states require testing ranging from seven days after arrest to following conviction, which can take two years. He said the seven-day provision allows the establishment of probable cause, either through preliminary hearing or grand jury indictment. Number 375 MS. KNUTH said waiting longer than seven days may have medical value, as infection does not manifest itself immediately. She suggested requiring that tests be performed more than once. REP. KOTT reminded the committee that they gad added other STDs, including syphilis and gonorrhea. He said victims need to know soon if they are infected, so as to protect their partners and families. REP. BUNDE said more tests make more surety. Number 394 REP. BRICE asked when the CDVSA (Council on Domestic Violence and SExual Assault) position paper would be adopted. REP. BUNDE moved passage of HB 109 with individual recommendations. CHAIR TOOHEY called for a voice vote on the motion. Hearing no objections, she declared the bill passed from the committee with individual recommendations. CHAIR TOOHEY announced a joint Senate-House meeting for the following day in the Butrovich room, and ADJOURNED the meeting at approximately 5:00 p.m.
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