Legislature(1997 - 1998)
04/07/1998 03:05 PM House HES
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* first hearing in first committee of referral
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SB 17 - CRIMINAL TRANSMISSION OF HIV Number 0062 CHAIRMAN BUNDE announced the first bill on the agenda was SB 17, "An Act creating the crime of criminal transmission of human immunodeficiency virus (HIV)." He asked Mel Krogseng, Legislative Administrative Assistant to Senator Robin Taylor to come forward and speak to SB 17. Number 0087 MEL KROGSENG, Legislative Administrative Assistant to Senator Robin Taylor, Alaska State Legislature, said rather than re-reading the sponsor statement from the last meeting, she would prefer to speak to a hand-out on the incidents of testing which was a major issue at the last meeting. She had re-read the testimony on this legislation and throughout the testimony comments were made implying that efforts were being made to criminalize the disease, human immunodeficiency virus (HIV). She said that was not so. Senate Bill 17 only criminalizes the outrageous behavior of an individual who knowingly has HIV and then exposes an innocent victim or victims to this deadly disease under false pretenses - lack of disclosure. MS. KROGSENG said there had been testimony that the majority of HIV sexual transmissions occurred during consensual sexual activities. She submitted that the consent may very likely not have been given if the potential partner had known the suitor was HIV positive. At a previous meeting someone made the comment "just having an intimate relationship with someone if you knew you were HIV positive would be a crime." Ms. Krogseng said that is not true. It would only be a crime if the HIV positive individual didn't inform the person of the HIV positive status before engaging in the activity whether it be sex or donating blood or tissue so if the individual consents, it will be done knowingly. MS. KROGSENG said testimony had been presented at the last hearing that "this bill was singling out a specific group of people based on their sexuality." That is not so; this legislation was prompted by the incident in New York where the HIV positive male had sex with several different women. That is not the only incident where that has occurred. MS. KROGSENG believed there were many misconceptions about SB 17. At an outing over the weekend, she had spoken with a Red Cross nurse to ascertain if the Red Cross had taken a position on SB 17. The nurse was under the impression this bill criminalized transmission of HIV - not knowingly, but if individuals not knowing they were HIV positive had sex would be committing a crime. After Ms. Krogseng explained that SB 17 dealt with the knowing aspect of having the disease and not informing the partner, the nurse's attitude changed substantially. She said this legislation will not completely solve the problem of HIV transmission for the people who know they are positive, but it will provide a tool to stop people from continuing this egregious behavior. Number 0365 CHAIRMAN BUNDE said he had considered similar legislation in the past, but there had been a concern with the passing of HIV from mother to child at birth. He understands that if a mother would take a regimen of AZT the child's chance of being HIV positive are greatly diminished. He asked, "Under this bill, would a mother who knows she has HIV gives birth to a child without going through the regimen to diminish the chances of passing this on or even if she does, would she be subject to at least child abuse ...." MS. KROGSENG said she was unable to answer that question but offered to research the question and provide Chairman Bunde with an answer. Number 0470 REPRESENTATIVE J. ALLEN KEMPLEN noted comments had been made at the last hearing regarding existing laws that address the criminal act. He understands a person who transmits HIV to another individual can be prosecuted for first degree murder under AS 11.41.100 if there was intent to kill another person through infection, or a person could be charged under AS 11.41.200 with attempted assault if there was intent of serious injury and not death, or charged with reckless endangerment if a person engaged in behavior that could transmit the virus but where such transmission was not intentional or knowing under AS 11.41.250. He asked if these laws were inadequate to address this issue and if so, why? MS. KROGSENG responded that intent must be proven with a felony offense and she submitted it is difficult to prove that a person with HIV perhaps, intended to kill someone. She said under the existing statute, an individual's defense could very easily be that he didn't intend to kill the person, didn't intend to harm the person, but wanted to make love to them. Based on a 1990 Attorney General's Opinion, there is a possibility an individual could be charged with a misdemeanor offense, but in her mind contracting HIV is much more serious than a misdemeanor. CHAIRMAN BUNDE noted there were a number of individuals waiting to testify. He asked Ed Linsell to come forward to present his remarks. Number 0655 ED LINSELL, Prevention and Program Director, Shanti at Southeast Alaska, testified that Shanti's mission is to reduce the transmission and acquisition of HIV. He was appearing before the committee not to argue the language of SB 17 or to quote statistics, but to testify as the prevention program director of Shanti who has sat on many occasions across the table from people who are afraid to be tested for HIV. His job is to present the facts to these people, offer them an easy way to be tested and to be there when the results are determined. Shanti has worked for years to increase the number of people making the decision to be tested. It's not an easy task and after many years of hard work by agencies such as Shanti and the Alaska Public Health Division, it's finally paying off. The public is beginning to understand that HIV acts like many other diseases such as hepatitis B and hepatitis C and are more willing to be tested because there's less of a chance of being labeled. The public is also beginning to understand in increasing numbers that it is rightfully a public health issue alone. In Shanti's effort to have people tested to slow the transmission of HIV, they have never thought of passing a law that "adds a criminal spin to being tested" which is what he believes SB 17 will do in Alaska. MR. LINSELL said there are already a lot of people who are afraid to be tested because of something that may have happened years before. The treatment of this disease is changing and the face of HIV is changing; this disease that has made it's way into mainstream Alaska through people straight and gay, male and female, young and old, who have either little knowledge of their risk behaviors or are afraid to be tested. Knowing the nature of HIV and that it takes years for a person to show recognizable signs, Shanti has instead realized that getting people tested before getting sick is the best way to slow the transmission. This is a public health issue, not a penal issue. The Division of Public Health and Shanti of Southeast Alaska have spent years demystifying this disease and putting into effect elaborate and costly prevention efforts to convey to individuals that it's okay to be tested. Shanti of Southeast Alaska supports efforts of the Division of Public Health to have HIV reportable; currently, only AIDS is reportable. This reporting indicates that it's like any other reportable disease and should be treated as such - a public health issue, not a penal issue. CHAIRMAN BUNDE thanked Mr. Linsell for his comments and asked Karen Sturnick to come forward to testify at this time. Number 0842 KAREN STURNICK, Former Executive Director, Interior AIDS Association, testified in opposition to SB 17 and all other efforts to criminalize HIV transmission. She stated existing laws already provide for criminal prosecution and punishment of intentional transmission of HIV. Criminalizing HIV will certainly take Alaska backwards in efforts to address all aspects of this public health issue. As pointed out by Dr. Middaugh, Chief of the Section of Epidemiology, public health has had experience over many decades that illustrates criminalization of infections is a bad idea and harms the public health efforts to control disease transmission. She said SB 17 will certainly discourage testing. Every community in Alaska has worked endlessly to develop education and prevention programming, part of which encourages testing, notification of partners, and treatment. For over ten years, public health agencies, HIV/AIDS service agencies and Native organizations have worked hand-in-hand to educate the public. This bill, if passed, will undermine all those statewide efforts and will further discriminate against those people living with HIV and AIDS. CHAIRMAN BUNDE thanked Ms. Sturnick for her comments and asked Dr. Michael Beller to come forward to the witness table. Number 0935 MICHAEL BELLER, M.D., Epidemiology Section, Division of Public Health, Department of Health and Social Services, thanked the committee for the opportunity to clarify several pieces of information relevant to SB 17. He restated it is very clear the Alaska Medical Association, the Public Health Association, and the Alaska Native Health Board are all very much opposed to SB 17. He said it is not correct, as the committee had heard previously, that 27-30 other states have adopted legislation similar to what's being proposed in SB 17. Of the 27-30 states that do have laws regarding HIV and criminalization, six of these laws pertain to very limited situations such as prostitution. Laws in six other states make certain acts a misdemeanor or an infraction and he is aware of only 14 states, not 27-30, that have a law similar or comparable to SB 17. It is also not correct that the Coburn bill, HR 1062, pending in the U.S. House of Representatives, supports SB 17; in fact, the Coburn bill calls for the states to make intentional transmission of HIV a felony, which is not the same as SB 17. Senate Bill 17 makes exposure a felony even when there's no evidence of transmission. He said it is also not correct that the American Medical Association (AMA) endorses laws similar to that proposed in SB 17. The AMA supports the Coburn bill which differs from SB 17 in that it deals with actual transmission; SB 17 refers to exposure. Also, it is not correct that the public health response to Typhoid Mary in New York in the early part of this century is similar to what's being proposed by SB 17. In New York, Typhoid Mary was confined and quarantined not because she had transmitted or exposed people to the bacteria that causes typhoid fever; the reason she was confined and quarantined was that she failed to follow a public health order that was given to her. There were many other - hundreds of other people identified who transmitted typhoid fever and when they followed the public health orders, there was no further need for any action or confinement on those individuals. DR. BELLER further stated that likewise it is not correct that Illinois did not experience any adverse effects after adopting a similar law to SB 17 in 1989. Although it is true the number of HIV tests did not go down after the Illinois law was passed, there are many factors that determine how many people will be tested, such as media attention, the availability of free or low cost testing, and other legal requirements. In 1989 when Illinois adopted a law similar to SB 17, there was intense media interest in the HIV epidemic; in fact, he recalled it was about that same time a number of celebrities disclosed their HIV positive status, including Magic Johnson, and as a result of this kind of attention, there was a very large increase in testing nationwide and Illinois was part of that. He pointed out it's very simplistic to conclude that if testing volumes did not go down, there was no adverse effect. Finally, the Division of Public Health HIV prevention program is built around the concept of personal responsibilities. He said it is their work to educate citizens on how HIV is transmitted and can therefore protect themselves; Senate Bill 17 will not do that. Existing laws already provide for criminalization and prosecution of intentional HIV transmission. Senate Bill 17 is unnecessary and is not supported by science or by professional, medical or public health organizations. He requested the committee not support this legislation. Number 1222 REPRESENTATIVE KEMPLEN noted Dr. Beller had indicated that education of various viruses and other public health issues was one of the agency's activities. He asked if this legislation could be characterized as promoting ignorance; ignorance being defined as someone who is not aware or not knowing. However, an individual could be charged with a felony for their actions after becoming aware they are HIV positive. In other words, if an individual suspects they may be HIV positive, it would be to their benefit not to get tested and in effect, promoting that ignorance is bliss. DR. BELLER said it's fair to say that's a very serious concern. On the other side of that is with legislation of this sort, people may get the idea of somehow being protected from getting HIV because a law exists that will protect them if they have unsafe sex. The law will not protect them; they need to protect themselves by learning what unsafe sex is and not engaging in unsafe sex. Number 1320 CHAIRMAN BUNDE commented that several times he's heard that existing law would cover people who intentionally infect another individual with HIV. With that in mind, doesn't that address the issue people are concerned about that there's already a huge incentive not to get tested. DR. BELLER reiterated that it's very difficult to actually measure the effect of one particular change in terms of what happens to testing, but the expectation is that a law such as this is much more likely to impede testing than to promote testing. It's difficult to measure in the real world exactly the effect of one law versus media coverage, versus changes in funding, et cetera. He referred to the incident in New York where an HIV positive individual transmitted infection and disease to a number of young women and said New York had no specific law similar to SB 17 and that individual was prosecuted under criminal statutes with existing laws. He couldn't verify that New York's existing laws are comparable to Alaska's existing laws, but New York does not have a specific law stating that HIV transmission, as an entity, is a felony. Furthermore, the Section of Epidemiology has been in contact with Chautauqua County where the incident occurred and there is no interest or need for additional legislation. CHAIRMAN BUNDE reflected the parents of the young women probably have a different view. He thanked Dr. Beller for his testimony and called Anne Carpeneti to the witness stand. Number 1435 ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, testified it is the department's position this is an issue of spreading a disease; it's not an issue involving a criminal law. Public Health officials have testified that making it criminal to expose others to HIV is counterproductive to their efforts to control the spread of this disease; the Department of Law agrees with that position. She added that in the case of an angry individual who is intentionally spreading the disease to others, such as in Chautuaqua County, Alaska has laws on the books that are generic to criminal law. These laws do not specifically address HIV transmission, but they do work. Those laws are attempted murder in the first degree which would require evidence to prove intent to cause death; attempted assault if there is evidence to prove the person intended to cause serious physical injury; and reckless endangerment for conduct where a person is aware of a risk and disregards it. With regard to Chairman Bunde's comment regarding the parents of the young women in New York, she didn't think it would make a difference to the parents if the man was prosecuted under a specific HIV statute or attempted murder statute, as long as he was successfully prosecuted. CHAIRMAN BUNDE said he did not disagree with her. He felt there was already some incentive with the laws she mentioned to not be tested if an individual wants to live a promiscuous lifestyle and have zero personal responsibility. CHAIRMAN BUNDE inquired if there were other individuals wishing to testify. There being none, he announced SB 17 would be held in committee until all members were present.
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