Legislature(2005 - 2006)CAPITOL 106
03/21/2006 03:00 PM House HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
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| Start | |
| HB426 | |
| HB258 | |
| HB412 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 426 | TELECONFERENCED | |
| += | HB 258 | TELECONFERENCED | |
| += | HB 412 | TELECONFERENCED | |
| += | HB 356 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 258-SEXUAL ASSAULT BY PERSON WITH HIV/AIDS 4:28:03 PM CHAIR WILSON announced that the next order of business would be HOUSE BILL NO. 258, "An Act relating to aggravating factors at sentencing." REPRESENTATIVE BOB LYNN, Alaska State Legislature, testified as prime sponsor of HB 258, paraphrasing from the following prepared statement [original punctuation provided]: The key words here are rape and sexual assault, and the question is whether the court should consider it an aggravating factor if the perpetrator convicted of a rape or sexual assault was previously diagnosed with HIV or AIDS. That's what this bill is all about, and nothing more. How or why a perpetrator of rape or sexual assault acquired HIV/AIDS is not the issue. The sexual orientation of the perpetuator is not the issue. Any perceived stigma someone associates with this life- threatening disease -by a person guilty or innocent - is not the issue. Those topics are not the issue and have nothing whatsoever to do with this bill. This bill is only - I repeat only - about whether a convicted rapist or sexual predator previously diagnosed with HIV/AIDS should be subject to an aggravating factor at sentencing for their horrific and life-changing crime. I think it should, and I hope you agree. Some might ask why include only HIV/AIDS in this bill? What about ... Hepatitis C and other sexually transmitted diseases? Why not include those diseases in this bill as well? The answer is simple. HIV/AIDS is an incurable and potentially fatal disease that is primarily transmitted through sexual behavior - and that sexual behavior sometimes includes rape and sexual assault. Not only does the victim suffer the horrific consequences of rape or sexual assault, the victim must also suffer the effects of a life-threatening disease that is essentially a delayed death sentence. It's a sobering fact that some HIV/AIDS patients have shorter life spans than some criminals condemned to death row. We have received tremendous support for this bill from law enforcement officials, agencies for victims of sexual assault and others. Some of the witnesses you should be hearing from include: Brenda Stanfill in Fairbanks, the executive director of the Interior Alaska Center for Non-Violent Living … Juneau resident Bob Bassett, who is certified in Connecticut as an HIV/AIDS counselor and family therapist and is currently in Washington, D.C. … Barbara Mason, who is here, and is the Executive Director of the Alaska Council on Domestic Violence and Sexual Assault … Susan Sullivan, the Executive Director of Victims for Justice, planned to testify today but is home sick. So I would like to quote a sentence from her letter: "We agree that adding months of terror, and possibly years of illness and a shortened life, to the horror of rape, makes an attack by an HIV/AIDS-positive rapist a horrendous assault." We have received many letters of strong support for HB 258. Anchorage Police Chief Walt Monegan described a rapist or sexual offender with HIV/AIDS to an assailant with an insidious weapon that can be used to further strike out against victims and the victims' loved ones. Peggy Brown, the Executive Director for the Alaska Network on Domestic Assault, says a sexual offender with HIV/AIDS puts a victim at even greater risk and emotional distress. "In order to hold the perpetrator fully accountable, the sentences of these sexual predators should be enhanced," she added. Gerad Godfrey, chairman of the Violent Crimes Compensation Board, urges passage of this bill … "as a sign of respect, compassion, and understanding of the trauma experienced by victims of serious sexual offenses." There are other letters you can read in your committee packet, basically stating the same thing - please pass this bill. My staff has done considerable research on issues relating to this bill. You can see some of the results in your bill package - especially the question and answer paper. Mike Sica, a staffer in my office, has done lion's share of the work, and has become very knowledgeable of the issues involved. I believe you would be well served, and I would request, that you listen to his brief testimony before you ask me any questions. Again, the narrow focus of this bill is about victims of rape or sexual assault, and whether the fact that the convicted perpetrator was previously diagnosed with HIV/AIDS should be an aggravating factor at sentencing. 4:33:38 PM MIKE SICA, Staff to Representative Bob Lynn, Alaska State Legislature, presented HB 258 on behalf of Representative Lynn paraphrasing from the following prepared statement [original punctuation provided]: This is a good bill that deals with bad people doing terrible things, and takes us into dark areas … It has to do with some of society's worst offenders - sexual predators who commit horrible crimes against innocent men, women and children … It involves unspeakable acts that leave victims devastated, not only by the attack … but also from the nightmarish anguish and terror of being exposed to HIV and AIDS … Just hearing about the crimes and factors involved … even second hand from law enforcement and victims' agencies … can keep you up at night. Some witnesses who will testify today have worked directly with victims … They can do a better job of describing these monstrous acts of rape and sexual assault and the devastating consequences when these attacks expose innocent victims to a terrifying disease that can take up to six months to surface … I can't imagine what it's like to be a sexual assault victim … waiting so long for the test results, worrying about infection, wondering how my family and close friends will react, isolating myself from my spouse or loved one due to fear of transmission … The Centers for Disease Control sums it up this way: "Fear and concern about possible HIV infection usually intensify feelings of shock, fear, disbelief, anxiety, depression and helplessness that may occur in victims of sexual assaults." As Representative Lynn mentioned, there is a Question and Answer Paper included in your committee packet. It addresses many of the issues raised about House Bill 258. Our office has talked with medical, legal and law enforcement officials … as well as agencies for victims of domestic violence and sexual assault … Questions asked, and answered, range from … How do you know a sexual offender even has HIV or AIDS … to … Why did we not include other sexually transmitted diseases in this bill … For example, why did we exclude Hepatitis C … which can also be a life-threatening disease? … It is because Hepatitis C's main route of transmission is through blood from infected persons, commonly with shared needles when "shooting" illegal drugs. The Centers for Disease Control does not even recommend testing for people having sex with multiple partners or people having sex with an infected steady partner … They consider the risk of infection from sexual behavior that low for Hepatitis C. Another example is the question of aggravators … Must the court apply them? … According to state law, the Judge is not required to increase the sentence of a defendant because an aggravator has been found. The judge must consider all circumstances and then may increase the sentence. One last example is the issue of stigma. There was a concern that a bill that only lists HIV/AIDS can reinforce the stigma for victims of this disease. We have nothing but compassion and concern for persons with HIV or AIDS. If there is a stigma attached to this virus or disease by uneducated or unthinking individuals, that stigma and the additional pain and suffering associated with it, should be an argument for, not against, an aggravator at sentencing for a convicted rapist or sexual offender who has been previously diagnosed with HIV or AIDS. There are stigmas attached to many things in life. A man crossing a woman's path on a lonely street may be considered a potential rapist. There is a stigma attached to cigarette smoking, yet we pass laws protecting others from smokers in public places. Also, HIV and AIDS are already defined in state law (in Sec. 18.15.310), not as a stigma, or a mark of shame, but as a specific virus and disease as it relates to the testing of defendants of sexual crimes. This bill does nothing to change that. Twenty-seven states and selected possessions have some type of law that specifically criminalizes exposure or transmission of HIV in their jurisdictions … It's time Alaska get joins them … This state has the highest per capita rape rate in the nation … by far … This bill makes it possible to enhance the sentences for convicted rapists and sexual offenders who have been previously diagnosed with HIV and AIDS … It may not deter many of these criminals … but it will keep them in jail longer and thereby limit their damage in society … And it sends a message to the victims … that we acknowledge their additional pain and suffering caused by exposure and possible transmission of a life-threatening disease from a rapist or sexual offender … by passing a law that can hold them more accountable. 4:37:52 PM REPRESENTATIVE GARDNER asked whether there is any opposition to this bill. 4:38:03 PM MR. SICA responded that Trevor Storrs of the Alaska Aids Assistance Association [Four-A's] would be testifying in opposition to bring concerns primarily around the stigma factor. The committee took a brief at-ease from 4:38:18 PM to 4:39:04 PM. 4:39:04 PM REPRESENTATIVE GARDNER explained that subsequent to the original drafting of this bill additional subsections have been included. She proposed and moved to adopt Amendment 1, as follows: Page 1, line 4: before "the" remove "(31)" Insert "(33)" There being no objection, Amendment 1 to HB 258 was adopted. 4:39:59 PM TREVOR STORRS, Executive Director, Alaska AIDS Assistance Association (Four A's), stated opposition to HB 258, paraphrasing from the following written statement [original punctuation provided]: The Alaskan AIDS Assistance Association (Four A's) recognizes and empathizes with individuals who have to live with the trauma of a sexual assault. After reviewing House Bill 258 - Sexual Assault of Persons with HIV/AIDS, the Four A's has concerns of the greater consequences of such a bill. Stigma is the leading cause of the transmission of HIV. Individuals have lost family support, employment, medical care, and their homes because of the fear and hate caused by HIV stigma. HIV stigma causes people to not know their HIV status. If a person is not tested, they usually take on the identity of a person who is HIV negative. If a person learns of their positive status, stigma has prevented them from accessing services. Most HIV positive individuals have concerns regarding disclosure due to knowing the anger, hate and discrimination associated with HIV/AIDS. It is our opinion that House Bill 258 does not protect the community but fuels to HIV stigma. The purpose of a law is to hold an individual accountable for their actions and to deter individuals from engaging in specific behaviors. Although the bill does hold a person accountable, laws already exist that achieve the same goal. If an individual is sexually assaulted and infected with HIV, the court system (i.e. the judge) has the ability to increase the automatic sentence due to an aggravating factor. Judges also have the authority to require suspected rapists to be screened for HIV/AIDS. From a public health perspective, criminal punishment leads to prevention of only negligible risks of disease transmission and not the disease itself (L.O. Gostin; Studies in Social Medicine). House Bill 258 will not deter an individual from committing rape. It will only encourage individuals not to know their status. In addition, House Bill 258 will provide a new myth to be added to the already long list that gives life to HIV stigma. Individuals living with HIV/AIDS will now be seen as rapists versus fellow community members. Such a perception will only discourage anyone from knowing their status, accessing services and taking the necessary steps to help secure the safety of their community. The supporting information attached to Bill 258 is a perfect example of the stigma that exists today. The quote from Minnesota Court of appeals stating, "If she does become HIV-positive, it's a death sentence." is incorrect. With the advancement of treatment (i.e. medical, medications, social services), the life expectancy of an individuals living with HIV/AIDS is a natural life span. It is these statements and these types of laws that allow HIV/AIDS to continue to spread in our communities. In addition, House Bill 258 only focuses on one aggravating factor; HIV. However, the chance of getting HIV from a rape is less than 1%. Yet the risk of getting a sexually transmitted disease during a rape is about 5% to 10%. The risk of pregnancy is also disregarded. House Bill 258 is too narrow minded which leaves sexual assault victims unprotected and jeopardizes the elimination of HIV stigma. It is our opinion that House Bill 258 is not required. The purpose of the bill is already in existence within our legal system. This bill will only add to HIV stigma causing the disease to continue to affect and infect our communities. 4:48:38 PM REPRESENTATIVE ANDERSON requested clarity regarding the current aggravated assault laws in relation to the conviction of an HIV/AIDS carrier. MR. SICA responded that the transmission of HIV/AIDS by the rapist must be proven at the time of sentencing. Because it may take a lengthy time for the HIV/AIDS antibodies to manifest in the victim' system, the rapist could be convicted without the aggravated assault being factored into the sentence. He explained that once convicted, the sentence could not be amended later due to the protective laws of double jeopardy. 4:50:18 PM REPRESENTATIVE ANDERSON questioned whether Mr. Storrs was minimizing the negative affects of HIV/AIDS as an aggravating factor in a rape. MR. STORRS maintained that today HIV/AIDS is a chronic disease not a death sentence and thus does not warrant this type of onus. 4:52:26 PM REPRESENTATIVE GARDNER, setting the nomenclature aside, asked whether Mr. Storrs would consider an assault a greater crime if the perpetrator knowingly exposing the victim to a communicable, incurable, and potentially life-changing, if not life- threatening, disease. MR. STORRS reiterated that this bill is not necessary because of the current statute providing for aggravating factors in an assault. 4:53:33 PM REPRESENTATIVE GATTO offered that law holds separately an attack with a deadly weapon versus other forms of attack, and said that rape by an HIV/AIDS carrier is similar to an attack with a deadly weapon. 4:54:17 PM ROBERT BASSETT, Jr., Master Family Therapy (MFT), Certified HIV/AIDS Counselor and Educator, State of Connecticut, Washington D.C., stated support for HB 258, saying that it is horrifying when someone with HIV/AIDS knowingly assaults and infects another person. 4:55:54 PM BARBARA BRINK, Vice President, Alaskan AIDS Assistance Association, informed the committee that she is a former Director of the Alaska Public Defenders Agency, and stated opposition to HB 258 as unnecessary, unconstitutional, and unfair. She explained that Alaska has a presumptive sentencing scheme whereby factors of aggravation allow a judge to increase a sentence up to the maximum. She cited the two current laws which provide for aggravators that would apply in the sentence of someone convicted of rape as a carrier of HIV/AIDS. Ms. Brink refuted the example of the 1995 Minnesota case referred to in the sponsor's statement, saying that the aggravator used in that sentencing was due to other factors not HIV/AIDS. She stressed that current law provides maximum sentencing power, and maintained that HB 258 unnecessarily singles out HIV/AIDS from other sexually transmitted diseases, effectively increasing existing social stigmas. 4:59:21 PM JON BENORDEN, as a person living with HIV/AIDS, stated opposition to HB 258, echoing that this is no longer a life- threatening disease, but a life-changing event. He related his fear that he will be looked upon as a rapist if this bill passes. 5:00:37 PM ELIZABETH SCHENK SALTONSTALL, MD, Medical Director, Ryan-White Title Three Program, Alaska Native Tribal Health Consortium (ANTHC), stated opposition to HB 258, stressing that the data referenced in the bill dates to 1995. Given today's approach, she said that HIV/AIDS is no longer medically considered a life- threatening disease. She explained the post exposure prophylactics can be administered to people who are exposed via any means to the virus. She maintained that this bill is not an appropriate way to approach HIV/AIDs either from a medical, legal, or moral standpoint. 5:02:02 PM JOHN CYR, Business Manager, Public Safety Employees Association (PSEA), stated support for HB 258, and quoted the numbers of aggravated rapes committed in Palmer, Glennallen, and Juneau last year, and pointed out that this bill deals with the sentencing of convicted sex offenders. 5:03:54 PM BARBARA MASON, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety (DPS), stated support for HB 258, explaining that a rapist who knowingly transmits this disease creates an additional layer of social, health, and life changes to the anguish experienced by every rape victim. 5:05:01 PM BRENDA STENFILL, Executive Director, Interior Alaska Center for Non-Violent Living; Chair, Alaska Network on Domestic Violence and Sexual Assault validated the points made by the previous supporters of HB 258, and added that contracting HIV/AIDS through sexual assault affects the victim in a paralyzing way, incurring life-long trauma. 5:06:30 PM MR. SICA said that those opposed to this bill have focused on the stigma of HIV/AIDS sufferers, but rape itself carries a stigma. He stressed that HB 258 is about protecting potential victims from rapists and sexual offenders who would expose other people to this disease. 5:07:44 PM REPRESENTATIVE SEATON directed the committee's attention to the fiscal note from the Department of Corrections, which reports that there are five inmates of the 5,001 currently housed, who have been diagnosed with HIV, and none of those are incarcerated for sexual crimes. He pointed out that this data does not support the stigma that HIV sufferers commit sexual crimes, and clarified that the bill is to impose an aggravator for someone who does commit a sexual crime. 5:08:35 PM REPRESENTATIVE GARDNER offered support for HB 258, stating that there are other life-changing transmittable diseases that this bill could be broadened to encompass. 5:10:07 PM REPRESENTATIVE SEATON moved to report HB 258, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 258(HES) was reported out of the House Health, Education and Social Services Standing Committee. 5:10:18 PM
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