05/07/1998 04:15 PM House JUD

SB 17 - CRIMINAL TRANSMISSION OF HIV                                           
                                                                               
Number 0040                                                                    
                                                                               
CHAIRMAN GREEN announced the committee would address SB 17, "An Act            
creating the crime of criminal transmission of human                           
immunodeficiency virus (HIV)," sponsored by Senator Taylor.                    
                                                                               
WAYNE MALONEY, Legislative Assistant to Senator Robin Taylor,                  
Alaska State Legislature, came before the committee.  He explained             
the bill has been extensively heard in the House Health, Education             
and Social Services (HESS) Committee.  Mr. Maloney informed the                
committee that SB 17 was introduced with the goal of putting Alaska            
in a proactive position when it comes to dealing with individuals              
who knowingly place others at risk of HIV infection.  He stated                
that 27 other states have adopted specific laws dealing with                   
criminal felonies for knowingly transmitting or exposing others to             
HIV.                                                                           
                                                                               
MR. MALONEY pointed out that SB 17 is brief and to the point.  It              
creates the crime of criminal transmission of HIV.  It covers the              
actions and conduct known to transmit the disease.  The legislation            
doesn't criminalize the disease; it criminalizes irresponsible                 
conduct that puts others at risk.  It also doesn't shift the burden            
of proof to the defendant; it must be proved that the defendant                
knew that he or she was infected and (indisc.) of being exposed.               
The provision of an affirmative defense protects the defendant and             
does not shift the burden of proof.  Senate Bill 17 is modeled on              
an Illinois statute, which has been upheld in both the state                   
appellate and supreme courts.  He indicated he would answer any                
questions the committee may have.                                              
                                                                               
Number 0207                                                                    
                                                                               
DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services              
Section - Juneau, Criminal Division, Department of Law, came before            
the committee.  He said, "I know you've heard testimony about this             
bill before.  I know you've heard testimony that there is, under               
Alaska current criminal law, ways in which this kind of conduct, at            
least at the most egregious and someone who intentionally passes               
on, or attempts to, can prosecuted for attempted murder.  And on               
the lower end, there is a misdemeanor offense of reckless                      
endangerment that is a possibility for prosecution.  I'm not going             
to sit here and tell you that these are the best laws to prosecute             
under, but there are at least possibilities and I think in                     
appropriate cases we can use those laws.  As prosecutors, however,             
we review this problem as a public health problem and, in some                 
ways, a mental health problem.  Some of the cases that we've heard             
about, at least anecdotally, they haven't formally been submitted              
for us for prosecution, involve people who have -- mentally                    
retarded people, people with some intellectual functioning                     
problems, both the person who is infected and the partner."                    
                                                                               
MR. GUANELI continued, "It's hard to know what they understand                 
about their particular situation.  And those kinds of cases we do              
not believe are really adequately dealt with under ... as a                    
criminal law problem, but really as a public health and a mental               
health problem and that's where we think the efforts ought to be               
addressed.  To the extent that this does have chilling effect on               
people coming forward or getting tested, I think that's a shame                
because it really needs to be dealt with as a public health issue.             
I understand the Dr. Middaugh from the Division of Epidemiology is             
on the line.  I don't know if you need any further testimony from              
him, but I believe he is available.  That concludes my comments,               
I'd be happy to answer any questions that you might have."                     
                                                                               
Number 0354                                                                    
                                                                               
CHAIRMAN GREEN said Mr. Guaneli spoke about prosecution.  He asked,            
"Is the fact that it's knowing, does that give you some                        
reassurance?  I mean I know that's a lower standard to prove, but              
I'm just wondering if ... as you said, between these two partners              
is that still a pretty difficult thing to try and prove?  I guess              
if he's got a test in front of him or some place, then he would                
have to be knowingly but...."                                                  
                                                                               
MR. GUANELI stated, "That's correct.  It's certainly if you've got             
a test or if a doctor has told you.  I think even in some                      
circumstances, the definition of 'knowing' under our law is                    
practically certain.  So I think even in some circumstances                    
something even less than a test result might allow prosecution                 
under statute.  And that's certainly ... it's conduct that should              
not be condoned.  There is no question about that, but the question            
is how to address it and whether a person belongs in jail or                   
whether, you know, some kind of treatment ought to be offered.                 
That's really, I guess, a question for you to decide."                         
                                                                               
Number 0418                                                                    
                                                                               
REPRESENTATIVE JAMES said the argument that she has heard is that              
these people want to get tested.  She said she can't buy into that             
as an effect to this bill.  Representative said, "I just don't                 
understand that argument.  And you mentioned it too that, you know,            
you think that they won't get tested.  I just don't see that that's            
an effect."                                                                    
                                                                               
REPRESENTATIVE PORTER said the bill raises a misdemeanor to a                  
felony.  He said, "You can throw in how many more folks may not                
register because of that or want to get tested.  I can't answer                
that question, but the problem right now is for all the felony                 
crimes you have to prove that not only did they know that they had             
HIV, but they intended to transmit it, and that's pretty tough if              
not impossible.  Reckless endangerment, a class A misdemeanor,                 
which you can go to jail for a year for, is the same elements as               
the felony that's established in this crime - knowing you have it              
and engaging in a practice that ... is likely to give it.  And so              
most everybody agrees that in that kind of a situation of these                
elements that reckless endangerment could be used, but it's a                  
misdemeanor.  So basically, what this does is raise a misdemeanor              
to a felony."                                                                  
                                                                               
Number 0670                                                                    
                                                                               
REPRESENTATIVE ROKEBERG indicated he had heard this legislation two            
years ago in the House HESS Committee.  He then made a motion to               
move SB 17 out of committee with individual recommendations and                
with the attached fiscal notes.  There being no objection, SB 17               
moved out of the House Judiciary Standing Committee.