04/14/1998 04:05 PM House HES

SB  17 - CRIMINAL TRANSMISSION OF HIV                                          
                                                                               
Number 0130                                                                    
                                                                               
CHAIRMAN BUNDE announced the next bill to come before the committee            
was SB 17, "An Act creating the crime of criminal transmission of              
human immunodeficiency virus (HIV)."  He asked Senator Taylor's                
legislative assistant to address SB 17.                                        
                                                                               
Number 0130                                                                    
                                                                               
MEL KROGSENG, Legislative Assistant to Senator Robin Taylor, Alaska            
State Legislature, said this bill does not criminalize the disease             
of HIV or AIDS; it criminalizes irresponsible conduct that puts                
others at risk.  For those individuals who say this legislation                
criminalizes the disease, she offered the following parallel:  It              
would be like saying that owning a gun is criminal because you                 
shoot someone.  In response to the Department of Health's statement            
that the majority of HIV cases in Alaska resulted from consensual              
sex, the question is, "Would consent have been given if the risk               
were known?"  The bill does not shift the burden of proof to the               
defendant; the state would have to prove the defendant knew they               
were infected and did not warn the person being exposed.  The                  
provision of an affirmative defense protects the defendant; it does            
not shift the burden of proof.  When asked in the Senate Finance               
Committee, the Department of Health and Social Services could not              
provide any substantiation to the claim that the bill will have a              
chilling effect on testing programs.  In fact, the Illinois                    
Department of Health advised the Alaska Legislative Research                   
Section there was no decrease in testing as a result of their law.             
This statement came in March 1995, six years after the Illinois law            
had passed.  Senate Bill 17 is modeled on the Illinois statute                 
which has been upheld in both the Illinois Appellate and Supreme               
Courts.  This legislation has no effect on needle exchange programs            
in the state.                                                                  
                                                                               
MS. KROGSENG noted that Congressman Coburn of Oklahoma, a medical              
doctor, has introduced HR 1062, the HIV Prevention Act.  At the                
time SB 17 was drafted, HR 1062 had 90 co-sponsors in the U.S.                 
House of Representatives.  She referred to the summary of the HIV              
Prevention Act of 1997, which includes in its provisions, "Sense of            
the Congress language that the states should criminalize the                   
intentional transmission of HIV."  She said HR 1062 was endorsed by            
the American Medical Association.                                              
                                                                               
CHAIRMAN BUNDE asked if there were any questions of Ms. Krogseng.              
                                                                               
Number 0360                                                                    
                                                                               
REPRESENTATIVE GREEN said, "You indicated that Illinois in a four              
year period - or I got two different dates there - but at least                
they haven't seen any change in the number of tests since they've              
invoked this law.  Have you checked with any other states that may             
have done the same thing?  What I'm wondering about is, is the fact            
that the number of tests being taken not decreasing because there              
are far more people infected with AIDS each year so that the number            
of tests could be going up, but the people being tested could be               
still this stigma or this concern with a penalty like this of some             
people deciding, 'hey I don't want to be tested - I don't want to              
know' - even though the tests don't go down because the number of              
people contacting the disease is going up."                                    
                                                                               
MR. KROGSENG said she had read in a document that there had been a             
decrease, but she was not aware of any other state being contacted             
as the Legislative Research Section had conducted the research for             
Senator Taylor's's office.  She had read in a document that in one             
area there was mention of a decrease in the number of testing                  
through the Department of Health, but it was believed the reason               
for that was because of the increased testing by private sector                
physicians which would not be counted in the Department of Health              
as well as the home testing kits that can now be purchased at drug             
stores.                                                                        
                                                                               
REPRESENTATIVE PORTER noted the testimony had been rather                      
compelling both ways on this bill and it had taken him awhile to               
get it straight in his mind that the federal legislation proposed,             
and the criminal legislation passed in at least one other state                
based on that federal legislation, makes it a crime to                         
intentionally transmit HIV.  The committee had heard testimony that            
it is currently illegal under state statute to do that.  He said,              
"If I have HIV and I have sex with someone and not only don't tell             
them about it, but have intent to intentionally transmit HIV, I                
have committed a felony under our statutes.  The problem is, I                 
think the federal legislation is a little bit suspicious for lack              
of being forthright - no one can prove that.  You cannot - well I              
can't say that you can't because there's always the exception, but             
in the case - the typical kind of case - Yah, I knew I had it, but             
I didn't intend to give it to anybody - that puts a 95 percent                 
(indisc.) to prosecution unless you've got some really unusual                 
evidence.  What this does, and I must step back to my prior career,            
is make it possible to prosecute these cases.  This, to me makes               
sense.  It says we have to show that you knew you had it, but if               
you know that you've got it, you've got to be a blithering idiot               
and then you're probably not going to be culpable of being charged             
anyway, not to know the risks of this behavior and transferring it             
to somebody else, and that is what will criminalize it; not this 'I            
intend to transmit HIV' which is a next to impossible level of                 
proof to get."                                                                 
                                                                               
Number 0657                                                                    
                                                                               
REPRESENTATIVE PORTER made a motion to move SB 17 from committee               
with individual recommendations and attached fiscal notes.                     
                                                                               
REPRESENTATIVE KEMPLEN objected.                                               
                                                                               
CHAIRMAN BUNDE asked for a roll call vote.  Representatives Dyson,             
Porter, Vezey, Green and Bunde voted in favor of the motion.                   
Representative Kemplen voted against it.  Representative Brice was             
absent.  Therefore, SB 17 moved from the House Health, Education               
and Social Services Standing Committee by a vote of 5-1.