Legislature(1993 - 1994)
03/17/1993 01:00 PM House JUD
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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 Number 025 REPRESENTATIVE PETE KOTT, PRIME SPONSOR of HB 109, called his legislation a "victims' rights bill." He said that sexual assault victims were faced with many difficulties, including the fear of having been infected with HIV and other sexually-transmitted diseases (STDs). He expressed an opinion that the state had a responsibility to provide some measure of relief to victims. He said that a sexual assault victim had the right to know whether or not the offender was infected with HIV or another STD. REPRESENTATIVE KOTT commented that if an offender tested positive for HIV, a victim could begin taking precautions to protect himself or herself and others. He noted that a victim could elect to be treated with the drug AZT. He said that HB 109 would require the Department of Health and Social Services (DHSS) to provide information, counseling, and referral to sexual assault victims so that they could make informed decisions concerning the health of themselves and others. Number 075 REPRESENTATIVE KOTT commented that, because of the delay between HIV infection and the time when the virus could be detected, an offender's initial negative HIV test would not necessarily mean that the virus had not been transmitted to the victim. However, he said that a negative test would be beneficial in sustaining a victim's natural hope that she or he had not been infected with the HIV virus. He mentioned the positive psychological effects of such hope. He cited the currently accepted medical practice of testing a sexual assault victim for the presence of the HIV virus several times over the months following an assault. REPRESENTATIVE KOTT stated that since 1987, 24 states had enacted laws similar to HB 109. He said that the bill would require the court to order that an offender be tested, at the request of a victim, when the court found probable cause that the defendant committed specified sexual acts during which bodily fluids were likely transmitted to the victim. Number 125 REPRESENTATIVE KOTT said that five other states allowed for a person to be tested upon a court order at the time of arrest or when charges were filed. Other states, he noted, had made testing mandatory upon arrest. He said that in light of Alaska's constitutional right to privacy, mandatory testing upon arrest might be struck down by the court. He added that some victims' advocacy groups had indicated their preference for a testing process initiated by the victim. REPRESENTATIVE KOTT commented that in 1990, Congress passed a law tying action on the issue of testing sex offenders for the HIV virus with certain federal funding. He said that unless the legislature passed HB 109 or a similar law, the Department of Public Safety (DPS) stood to lose $185,000 in federal funds. REPRESENTATIVE KOTT noted that although federal guidelines only required that states test convicted offenders, many advocacy groups insisted that the delay between the assault and conviction was too long to provide the desired reassurance to victims. That approach was, therefore, not adopted in HB 109. He called members' attention to materials in their bill packets. He noted that HB 109 had received unanimous "do pass" votes when it was passed out of the House Health, Education, and Social Services (HESS) Committee. Number 157 REPRESENTATIVE JOE GREEN asked if every state implementing a testing program would receive the same amount of federal funding, or if funding depended upon a state's population. Number 175 REPRESENTATIVE KOTT did not know the answer to Representative Green's question. Number 177 LEE ANN LUCAS, SPECIAL ASSISTANT TO THE COMMISSIONER OF THE DEPARTMENT OF PUBLIC SAFETY, said that the funds were based upon a state's population. Number 182 REPRESENTATIVE GREEN asked if there was any possibility of Alaska getting a substantially smaller amount of federal funding, due to states with large populations implementing testing programs. Specifically, he wanted to know if it was possible that the testing program might cost the state more money than it would receive from the federal government. MS. LUCAS understood that states had until October to comply with the federal law, and stated that thus far, only one additional state had implemented a testing program. CHAIRMAN BRIAN PORTER asked if it would be fair to say that Alaska's $185,000 was predicated on all states coming into compliance with the federal law. Number 205 REPRESENTATIVE KOTT believed that Alaska would receive $185,000 at a minimum. If all states did not comply with the law, he added, Alaska could receive even more federal funds. ELMER LINDSTROM, SPECIAL ASSISTANT TO THE COMMISSIONER OF THE DHSS, said that HB 109 had been extensively discussed by the Department of Law (DOL), the Department of Corrections (DOC), the DPS, and the DHSS. He commented that the DHSS had submitted two fiscal notes for HB 109, one of which was for the DHSS' laboratory component, and amounted to $27,900. He said that the DHSS' laboratories would be responsible for performing tests on all blood samples required by HB 109. He mentioned that this fiscal note was the same as one which had been adopted by the HESS Committee. Number 230 MR. LINDSTROM said that the DHSS' second fiscal note was for the nursing component, and amounted to $45,500. He stated that this fiscal note had not been reviewed by the HESS Committee. The funds represented the cost of counseling for sexual assault victims and perpetrators who were not in the custody of the DOC or the Division of Family and Youth Services (DFYS). He said that he had tried without success to find another agency that would provide the counseling services. Number 270 MR. LINDSTROM commented that the provisions of HB 109 had been placed in Title 18 of the Alaska Statutes. He noted that Title 18 pertained to health matters. He mentioned that it might be more appropriate to place several of HB 109's sections into other Titles. Specifically, he felt that section 1 of the bill would more appropriately appear within Title 12. Number 300 MR. LINDSTROM noted that nowhere in HB 109 was it stated that the DOC and the DFYS had any responsibilities. However, he said that all parties had agreed that those agencies ought to be responsible for conducting testing of and counseling for perpetrators within their custody. He noted that the DHSS' Division of Public Health (DPH), would provide testing of and counseling for all other perpetrators. Number 336 REPRESENTATIVE GAIL PHILLIPS asked Mr. Lindstrom if he had suggested that the HESS Committee move sections of HB 109 to other areas of the Alaska Statutes. Number 340 MR. LINDSTROM replied in the negative. He believed the nature of the amendment was such that it would be most appropriately addressed by the House Judiciary Committee. Number 352 CHAIRMAN PORTER asked Mr. Lindstrom if he felt that not moving sections of HB 109 to other areas of the Alaska Statutes would result in certain agencies not fulfilling their responsibilities toward the testing program. Number 356 MR. LINDSTROM noted that all parties involved currently understood what their responsibilities toward the program were. However, he commented that over time, personnel would change and the current understanding might not carry forward. REPRESENTATIVE PHILLIPS asked Representative Kott if he had reviewed Mr. Lindstrom's proposed amendments. Number 373 REPRESENTATIVE KOTT responded in the negative. Number 376 REPRESENTATIVE GREEN asked Mr. Lindstrom if the desired change could be accomplished merely by changing the referenced Alaska Statute. Number 384 MR. LINDSTROM replied that as he was not a drafting attorney, he could not speak to Representative Green's question. Number 388 REPRESENTATIVE PHILLIPS expressed concern that bills coming to the House Judiciary Committee should be in somewhat final form. She said that this was the second time in less than two weeks that an agency had come to the committee with an amendment which the sponsor had not yet reviewed. Number 402 CHAIRMAN PORTER asked Mr. Lindstrom to clarify how he wished HB 109 to be amended. MR. LINDSTROM said that his amendment would provide that the DOC and the DFYS take samples from perpetrators within their custody; the samples would then go to the DPH for analysis. Additionally, the DOC and the DFYS would counsel offenders within their custody. Number 431 JERRY LUCKHAUPT, ATTORNEY, LEGISLATIVE AFFAIRS AGENCY, DIVISION OF LEGAL SERVICES, said that the provisions of HB 109 were placed in Title 18 because that section of the statutes dealt with a number of health and safety issues. He noted that not everything within Title 18 pertained to the DHSS. He commented that HB 109 dealt with many things: Children, adults, criminal procedure, sex crimes, and blood testing, subjects which were usually found within many different sections of the statutes. MR. LUCKHAUPT said that rather than put the elements of HB 109 into many different sections of the statutes, it was better to put a coordinated system of law within one section of the statutes. He commented that the revisor of statutes had the authority to place statutes wherever he saw fit, in order to make it easier for people to understand the law. He was of the opinion that the revisor would be reluctant to place the provisions of HB 109 into more than one section of the statutes. REPRESENTATIVE JIM NORDLUND, reviewing Title 18 of the Alaska Statutes, said that it pertained to many different departments within state government. He was of the opinion that placing the provisions of HB 109 into Title 18 did not mean that the DHSS would have to implement all of those provisions. Number 515 MR. LUCKHAUPT commented that AS 18.15, where the provisions of HB 109 had been placed, dealt with the DHSS; however, he noted that that did not mean the DHSS was responsible for implementing all of the provisions. Number 522 CHAIRMAN PORTER understood that HB 109 would require the court to make a determination as to which agency would draw samples and provide counseling. Number 523 MR. LUCKHAUPT indicated that he had the same understanding. Number 537 REPRESENTATIVE KOTT said that the intent of HB 109 was to not place the responsibility of testing and counseling on any one agency. Number 541 CINDY SMITH, EXECUTIVE DIRECTOR, ALASKA NETWORK ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT (ANDVSA), commented that transmission of STDs such as syphilis and gonorrhea during sexual assault was not uncommon. She said that it was currently standard practice at most hospitals to give a rape victim an automatic course of antibiotics, without waiting to hear about whether or not an offender had an STD. She noted that the chances of a sexual assault victim contracting HIV were thought to be very low, about .2%, but could be higher in some cases. Number 561 MS. SMITH said that in 1990, the first documented case of HIV transmission as a result of a rape was recorded at a London hospital. She stated that unfortunately, an offender's negative test did not ensure a victim that she or he had not contracted the HIV virus. Conversely, an offender's positive test did not mean that a victim had contracted the disease. She noted that a victim would still need to be tested approximately every three months for a year after an assault. MS. SMITH commented that there would be two purposes, medical and legal, served by testing offenders. The first was that a victim could undergo AZT treatment if there was known exposure to the HIV virus. She stated that in the absence of a testing requirement, perpetrators were known to use their willingness to be tested as a chip in charge bargaining. She said that the ANDVSA believed that testing of offenders could be beneficial to victims, and should be available to them as an option. MS. SMITH requested that two changes be made to HB 109. She asked that the committee delete the specific citation of sexual assault statutes referenced in section 1, line 8. The deletion would allow for testing for offenders of any crime of sexual penetration, she said. Number 600 MS. SMITH also asked that HB 109 be amended so as to broaden who a victim could tell about contracting an STD as the result of a sexual assault. She said that it was her understanding that the sponsor was proposing to add language addressing her concern that a victim be able to tell a person with whom she or he was in a dating or engagement relationship. She expressed her concern that many rape victims were young and single, and would most likely confide in a best friend. That, however, would be a violation of HB 109, as currently drafted, she said. MS. SMITH commented that the penalty for telling someone not authorized by law was currently contempt of court. She noted that raising the penalty to a misdemeanor would be very unfortunate. She expressed her organization's concern that confidentiality provisions for STD testing in HB 109 not affect current use of STD tests by prosecutors. In summary, she said that HB 109 was no panacea, but would be of some help to sexual assault victims. Number 652 CHAIRMAN PORTER indicated that Joanne Lopez, from the Council on Domestic Violence and Sexual Assault was present, as were Lee Ann Lucas and Alaska State Trooper, Colonel John Murphy from the DPS. Number 657 CHAIRMAN PORTER asked Margot Knuth, from the DOL's Criminal Division, to address a question regarding penalties for disclosure of information to unauthorized persons. Number 661 MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DOL, said that there was concern about involuntarily identifying persons with the HIV virus. She said that the question centered around how the state would balance a perpetrator's right to privacy with the public's and the victim's right to know and to share that information. Number 689 CHAIRMAN PORTER asked Ms. Knuth if any problem would result from removing the section pertaining to disclosure. Number 694 MS. KNUTH was of the opinion that omitting the section would not result in any problems. She believed that if a person was charged with a felony sexual assault, that person's right to privacy was greatly reduced. She commented that her opinion was not universally shared, however. She stated that part of the problem with HB 109 was that it required testing for persons charged with an offense, not just those convicted of an offense. Number 715 REPRESENTATIVE PHILLIPS asked if the sponsor would object to removing the disclosure section. She found the notion of finding a victim guilty of an offense for telling a friend that his or her attacker was HIV-positive very distasteful. Number 724 CHAIRMAN PORTER asked whether, if the committee removed the disclosure section, a person who disclosed certain information could or could not be found to have violated someone's right to privacy. He further asked if including the disclosure section established that a victim would definitely be guilty of violating someone's right to privacy, if she or he disclosed the offender's HIV-positive status to a friend. Number 729 MS. KNUTH felt that the Chairman was correct. She added that a judge could enter an order requiring non-disclosure in any case. That, she noted, would invoke all of the contempt sanctions. Number 737 REPRESENTATIVE KOTT commented that the section prohibiting the disclosure of HIV test results was put into HB 109 because of Alaska's constitutional right to privacy. He noted that the disclosure section in the HESS committee substitute was somewhat watered down, as compared to the same section in the original HB 109. He said that in the original HB 109, disclosure was considered a misdemeanor, not contempt of court, as it was in the committee substitute. REPRESENTATIVE KOTT stated that most states which had implemented laws similar to HB 109 punished disclosure violations as misdemeanors. He noted that HB 109 would require testing for those charged with sex offenses, not just those who were convicted. He commented that he was trying to maintain a balance between a defendant's right to privacy and a victim's rights. Number 752 CHAIRMAN PORTER wondered aloud whether the balance to which Representative Kott had referred already existed, as any person could sue any other person for violating their right to privacy. He expressed concern that the disclosure section in HB 109 gave offenders a tool with which to "go after" victims. Number 761 REPRESENTATIVE PHILLIPS supported removing the section prohibiting disclosure of HIV test results from HB 109. Number 765 CHAIRMAN PORTER relayed a comment from the committee's counsel that if a court order prohibited a victim from disclosing a defendant's HIV status, then violation of that court order would be contempt of court. Number 772 MS. KNUTH commented that the committee substitute for HB 109, on page 3, lines 26-27, required that the court order confidentiality. She suggested that if the committee chose to delete the disclosure section of the bill, they should also make the order of confidentiality discretionary, by changing the word "shall" to "may" on line 26. CHAIRMAN PORTER said that he would entertain a motion to strike proposed section 18.15.330 and change, on page 3, line 26, the word "shall" to "may." REPRESENTATIVE JEANNETTE JAMES made the MOTION. TAPE 93-35, SIDE B Number 000 JACK PHELPS, LEGISLATIVE AIDE TO REPRESENTATIVE PETE KOTT, asked that the committee get assurance from the DOL that making the amendment would not compromise the constitutionality of HB 109. Number 015 MS. KNUTH commented that the amendment did not present constitutionality problems. She noted that at some point, an HIV-positive defendant, whose HIV status was disclosed, and who was acquitted, might sue. The result of that, she said, would be that courts would be required to order confidentiality. The result, in her opinion, would not be to cease testing. CHAIRMAN PORTER, hearing no objection to the amendment, stated that the AMENDMENT had been ADOPTED. Number 039 MS. KNUTH noted that Representative Kott had proposed several amendments to HB 109, one of which was important to the DOL. She suggested that the committee add the word "exclusively" to language regarding letting the court rely on evidence presented to a grand jury or at a preliminary hearing. Number 060 REPRESENTATIVE JAMES made a MOTION to ADOPT the HESS Committee substitute for HB 109. There being no objection, IT WAS SO ORDERED. Number 084 REPRESENTATIVE KOTT had four amendments to offer. His FIRST AMENDMENT would ADD the word "presentment" AFTER the word "indictment" to page 1, lines 7, 12 and 14. He commented that this amendment would tighten up the constitutionality of the bill. Number 100 REPRESENTATIVE GREEN MOVED the AMENDMENT. Number 124 MR. PHELPS explained that presentment occurred when a charge was brought by a grand jury, on its own information and knowledge. He added that it happened very rarely in Alaska. He said that in contrast, an indictment was an action taken by a grand jury upon information laid before it by the government. There being no objection, the AMENDMENT WAS ADOPTED. Number 154 REPRESENTATIVE KOTT OFFERED his SECOND AMENDMENT, DELETING the comma on page 2, line 1, and ADDING "of an alleged victim who is a minor or incompetent". He said that the amendment would clear up a technical oversight in the HESS Committee version of HB 109. REPRESENTATIVE JAMES MOVED the AMENDMENT. There being no objection, the AMENDMENT WAS ADOPTED. Number 171 REPRESENTATIVE KOTT said that his NEXT AMENDMENT was the one which Ms. Knuth had discussed earlier. It would ADD the word "exclusively" AFTER the phrase "may rely" on page 2, line 8, and was being offered at the request of the DOL, he said. He said also that the amendment would tighten up HB 109's language. CHAIRMAN PORTER commented that the amendment would give the court an indication of the legislature's intent that the court should not hold another hearing, but instead rely on the record of previous hearings. There being no objection to adoption of the amendment, IT WAS ADOPTED. Number 199 REPRESENTATIVE KOTT offered his LAST AMENDMENT, which would DELETE, on page 3, line 31, AFTER the phrase "immediate family" the word "or." On page 4, line 1, he said, the period would be DELETED, a comma INSERTED, and the phrase "or a person in a dating, courtship, or engagement relationship with the victim" ADDED. Number 227 REPRESENTATIVE GREEN asked what effect the amendment would have on the occurrence of a spousal rape. Number 243 CHAIRMAN PORTER commented that the amendment gave the court the ability to require confidentiality regarding HIV test results, but would broaden the group of people whom a victim could tell to include persons with whom the victim was involved in a dating, courtship, or engagement relationship. There being no objection to adoption of the amendment, IT WAS ADOPTED. The Chairman announced that the committee now had the HESS Committee substitute, as amended, before it. Number 259 REPRESENTATIVE NORDLUND asked what would happen if a defendant refused to be tested for sexually-transmitted diseases. He asked if that person would be held in contempt of court. Number 261 CHAIRMAN PORTER commented that court-ordered blood drawing in other circumstances was simply performed, regardless of any objections from the defendant. Number 263 REPRESENTATIVE KOTT concurred. Number 277 REPRESENTATIVE JAMES made a MOTION to MOVE the amended bill out of committee with individual recommendations. Number 280 GAYLE HORETSKI, COMMITTEE COUNSEL, HOUSE JUDICIARY COMMITTEE, asked the Chairman if he wished to address Ms. Smith's suggestion regarding broadening the class of crimes on page 1, line 8. She noted that the crimes included in HB 109 were both felonies and misdemeanor offenses, and required that sexual penetration be an element of the offense. She said that the list of crimes did not include assault, because sexual penetration was not an element of that offense, although penetration in fact may have occurred. CHAIRMAN PORTER noted that the state would obviously not want to order HIV testing in every non-sexual assault case. Number 309 MS. KNUTH indicated that the committee could probably leave a reference to sexual penetration, that was not an element of the offense, in HB 109. She commented that the issue was complex. Number 329 MS. HORETSKI asked if the committee wanted to leave the language as it was, but also add another section which referred to "any crime during which penetration occurred"? Discussion ensued between Ms. Knuth and Ms. Horetski. Number 347 CHAIRMAN PORTER said that it might be advisable to pass HB 109 out of committee in its present form, rather than to insert potentially inappropriate language that would address one recent case which hopefully would never happen again. Hearing no objection to moving the bill out of committee, IT WAS SO ORDERED. The Chairman announced that HB 127 was the next item of business before the committee.
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