Legislature(1997 - 1998)

04/22/1997 09:15 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
Senate Bill 17                                                               
                                                                               
     "An Act creating  the crime of criminal transmission  of human            
     immunodeficiency virus (HIV)."                                            
                                                                               
JOE  AMBROSE,  STAFF,  SENATOR  ROBIN  TAYLOR,  SPONSOR,  read  the            
following Sponsor Statement into the record:                                   
                                                                               
     Senate  Bill  17  was introduced   with the  goal  of  putting            
     Alaska  in a  pro-active  position when  it  comes to  dealing            
     with  individuals who  knowingly place others  at risk  of HIV            
     infection.  SB 17 is  intended to be  preventative as  well as            
     punitive  and is  intended to  render a  criminal rather  than            
     moral  judgment. As  of December  31, 1996,  369 Alaskans  had            
     been confirmed  to have AIDS.  That's since tracking  began in            
     1982.  Of  these  cases,  194  are known  to  have  died.  The            
     Epidemiology   section  of  the  Division  of   Public  Health            
     reports  that  as  of December  31,  1996,  640  Alaskans  had            
     tested  positive  for HIV  infection. That  number  represents            
     only  those  who have  voluntarily  tested through  the  State            
     Section of Laboratories.                                                  
                                                                               
     The  statistics  show  that  HIV/AIDS affects  both  male  and            
     female, across  all age groups and without respect  to race or            
     residence.  The sad  fact  is that  the rate  of infection  in            
     Alaska  is increasing.  If someone intentionally  sets  out to            
     kill  another person by  infecting them  with the AIDS  virus,            
     they  can be  charged  under state  law with  attempted  first            
     degree  murder. But, what  do we do  with the person  who does            
     not  "intend"  to  kill,   but  who  still  places  others  in            
     jeopardy?  In 1990,  the  Attorney General's  office  reviewed            
     that  question and  suggested that  "it might  be possible  to            
     prosecute  the person  for reckless endangerment."  That  is a            
     class  A  misdemeanor   prohibiting  reckless   conduct  which            
     creates  a  "substantial  risk of  serious  physical  injury."            
     Most  people  would  equate  becoming  infected  with  HIV  as            
     something  more than  a "serious  injury." Twenty-seven  other            
     states  have seen  fit  to adopt  specific  laws dealing  with            
     criminal  penalties  for knowingly  transmitting  or  exposing            
     another  to  HIV  infection.  It would  only  be  prudent  for            
     Alaska  to have such a  statute on the  books. SB 17  is brief            
     and  to   the  point.  It   creates  the  crime   of  criminal            
     transmission  of HIV and covers  actions and conduct  known to            
     transmit  the disease. The  bill also provides an  affirmative            
     defense  when the  person exposed  knows  beforehand that  the            
     action could result in infection.                                         
                                                                               
     The  bill  also  provides  a  provision   excluding  perinatal            
     transmission  of the virus  and to  assure that an  individual            
     is  not  prosecuted  for an  involuntary  act.  SB 17  is  not            
     intended  to  punish those  who  have  contracted  HIV. It  is            
     intended to  protect others who may be unknowingly  exposed to            
     the   virus   by   what   should   be  a   criminal   act   of            
     irresponsibility.                                                         
                                                                               
Mr.  Ambrose  informed  the  committee  that  an  Illinois  statute            
(adopted in  1989) was used almost  verbatim in drafting  SB 17. He            
noted  that the  Illinois  statute was  included  in the  committee            
packet as  well as  a summary of  the laws  passed in other  states            
and two court  rulings on the Illinois  law. On April 6,  1994, the            
Illinois  Supreme  Court held  that  the  statute did  not  violate            
state  or federal  constitutional  protections for  free speech  or            
for free association  and was not unconstitutionally  vague. In its            
ruling, the supreme court of Illinois stated:                                  
                                                                               
     Vagueness,  like beauty,  may be in the  eye of the  beholder.            
     However,  we read  the statute  to be  sufficiently clear  and            
     explicit, so  that a person of ordinary intelligence  need not            
     guess  at  its  meaning  or  application.   It  also  provides            
     sufficiently  definite standards for law enforcement  officers            
     and triers of fact, so that its application need not depend               
     merely on their private conceptions.                                      
                                                                               
Mr.  Ambrose  continued that  the  Illinois  court, in  a  separate            
case,  also ruled  that  the Illinois  statute  was  not vague.  He            
noted  opinion  that  adoption  of  the  statute  would  discourage            
HIV/AIDS testing  in Alaska; in  Illinois, the Illinois  Department            
of Health  reported that  after the  law was on  the books  for six            
years,  testing for  HIV/AIDS  had  increased. The  current  year's            
decrease  in  public  testing  was  attributed   to  the  increased            
availability  of  testing in  the  private sector  as  well as  the            
availability of home testing.                                                  
                                                                               
Senator  Adams agreed with  health providers  that the  legislation            
would  deter  people  from  getting  tested,  especially  in  rural            
Alaska,  and  would  have  a  negative  impact  on  prevention.  He            
maintained that the  burden of proof was being shifted  in the bill            
to the  defendant. Mr.  Ambrose disagreed  and  pointed out  that a            
person  would  have  to  "knowingly"   transmit  the  disease;  the            
affirmative defense  would be if they had advised  the other person            
involved.                                                                      
                                                                               
Senator Adams wanted  an opinion from the Department  of Law on the            
matter.                                                                        
                                                                               
ELMER   LINDSTROM,   SPECIAL   ASSISTANT   TO   THE   COMMISSIONER,            
DEPARTMENT  OF HEALTH AND  SOCIAL SERVICES,  summarized that  SB 17            
would criminalize  an individual knowingly exposing  another to HIV            
through:                                                                       
                                                                               
   1. Voluntarily engaging in intimate sexual or other physical                
      contact which could result in infection;                                 
   2. Transferring, donating, or providing blood, tissue, semen,               
      organs, or other potentially infectious bodily fluids for                
      transfusion, transplantation, insemination or other                      
      administration to another; or                                            
   3. Dispensing, delivering, exchanging, selling, or in any                   
      manner transferring to another non-sterile, intravenous,                 
      or intramuscular drug paraphernalia.                                     
                                                                               
Mr. Lindstrom  asserted that the  legislation could interfere  with            
public health  interventions that have  been shown to  be effective            
in  preventing  the spread  of  HIV. The  interventions  have  been            
based on  encouraging individuals  to seek  testing, receive  early            
medical  diagnosis and  treatment, receive  on-going education  and            
supportive   services  to   reduce  high-risk   behavior,  and   to            
participate  cooperatively in  partner-notification activities.  He            
maintained that  criminalization of  consensual sexual  conduct and            
introduction  of additional  criminal  penalties  for illicit  drug            
use activities relative  to a person's knowledge of  his or her HIV            
status could prevent individuals from seeking medical support.                 
                                                                               
[SFC-97, Tape 121, Side B]                                                     
                                                                               
Mr.  Lindstrom  observed  that   current  programs  were  based  on            
voluntary   and  confidential   identification   of  partners   and            
notification  of  partners.  He  maintained  that  the  legislation            
could  reduce participation  because  of  fear of  prosecution.  As            
written, he believed  SB 17 could create criminal  liability for an            
HIV-positive  person who did many  things without first  disclosing            
their HIV  status and  getting consent.  For example, people  could            
be  come  criminals  who  coach sports  or  work  in  health  care,            
emergency  response,  firefighting,  childcare, or  participate  in            
other  activities in  which bodily  fluids could  be exchanged.  He            
pointed  out that  there were  new techniques  to  reduce risk.  He            
believed  the  willingness   to  be  tested  was  at  the  core  of            
controlling HIV.                                                               
                                                                               
Senator   Parnell    queried   statistical   correlation    between            
implementation  of  the  law in  other  states  and a  decrease  in            
testing. Mr. Lindstrom  was not aware of any information  regarding            
a downward  trend,  but observed  that testing  through the  public            
sector   had  decreased   in  Illinois.  He   suggested  that   the            
legislation would encourage in-home and confidential testing.                  
                                                                               
Mr.  Lindstrom   opined  that  part   of  the  confusion   was  the            
difference between  transmission and  exposure. He pointed  to page            
1,  line   7  of  the   bill,  which   referred  to  the   criminal            
transmission  of  HIV  and  the  behaviors  that  could  result  in            
transmission.  He argued that  in the majority  of instances  where            
the  behaviors could  occur,  the  likelihood of  transmission  was            
small.  He  thought   the  bill  would  be  more   accurate  if  it            
criminalized potential  exposure of HIV, rather than  transmission.            
He observed  that the  chance of  transmittal for  one instance  of            
sexual intercourse was low.                                                    
                                                                               
Senator  Parnell   pointed  out  that  public  testing   originally            
increased  in Illinois after  implementation of  the law.  He asked            
whether the department  had looked at the response  in other states            
with similar  laws. Mr. Lindstrom  did not know and offered  to get            
the information.                                                               
                                                                               
Senator  Phillips queried  existing  statute  related to  knowingly            
transmitting  other diseases. Mr.  Lindstrom responded that  he was            
not  aware of  other statutes.  He  noted department  concern  with            
criminalizing  any  infectious  disease,  which he  maintained  was            
inconsistent  with effective  public health  practice. He  asserted            
that there was no  scientific basis for criminalizing  HIV exposure            
and that other  infectious agents  (such as hepatitis B  or C) were            
more  likely  to  cause  infection  after  exposure  and  to  cause            
serious  illness.  He  argued  that   there  were  many  infectious            
diseases,  many  of  which  were  more   infections  than  HIV.  He            
emphasized  that  the state  did  not criminalize  transmission  of            
other diseases.                                                                
                                                                               
Senator Adams  suggested that  current statutes regarding  reckless            
endangerment  and  assault  in the  first  degree would  cover  the            
intent of the legislation.                                                     
                                                                               
AMY SKILBRED, ALASKA  CIVIL LIBERTIES UNION (ACLU),  testified that            
ACLU was  opposed to SB  17 on constitutional  grounds and  because            
of  the  adverse  effects  on  the  state's  public  health  system            
efforts  to combat  the spread  of HIV  through voluntary  testing,            
counseling, partner  notification, and prevention  case management.            
She maintained that  HIV infection was a public health  problem and            
not  a   criminal  problem.   She  believed   individuals   with  a            
transmittable   disease  (HIV,   tuberculosis,   Hepatitis  B,   or            
Hepatitis  C) should  be encouraged  to be tested,  and those  with            
positive  test results  should  be educated  to  understand how  to            
avoid infecting others and to use appropriate precautions.                     
                                                                               
Ms.  Skilbred argued  that SB  17 was  likely  to reduce  voluntary            
testing,  education,  and  case  management  of  HIV  cases,  which            
typically  accompanied being  tested and  learning results.  People            
would not  want to be tested (especially  by a public  institution)            
if the  result of  a voluntary  medical test  for HIV could  become            
the prosecution's  lynchpin  in a criminal  case against them.  She            
stressed  that  Alaska  law already  addressed  those  cases  where            
someone   intentionally  or   recklessly   transmitted  HIV   under            
criminal  and assault  laws; other  states  had successfully  tried            
the cases under fear  of imminent personal injury,  felony assault,            
assault  with  a  deadly  instrument,  reckless  endangerment,  and            
serious  bodily harm.  She maintained  that adding  the statute  to            
existing   Alaskan  law   would   not  provide   prosecutors   with            
additional  tools.  She  noted  that the  fiscal  notes  were  zero            
because  relevant individuals  would  already  be prosecuted  under            
existing law.                                                                  
                                                                               
Senator Donley  commented that  the position  of the ACLU  would be            
stronger if  it also advocated  for protection of Second  Amendment            
rights.                                                                        
                                                                               
Co-chair Sharp  queried the penalty  for a Class B felony.  Senator            
Donley replied zero to five years.                                             
                                                                               
Senator Donley MOVED to ADOPT a conceptual amendment:                          
                                                                               
     Line 9:                                                                   
     Add "unprotected" after "voluntary" and add "unprotected"                 
     before "intimate contact" in the definitions                              
     Line 13:                                                                  
     Add "and no protective devise was used"                                   
                                                                               
Mr. Ambrose  referred to prior  discussion regarding the  issue and            
argued  against the  amendment. He  maintained that  the thrust  of            
the bill was  that an individual  needed to make someone  they were            
potentially exposing  aware of the infection. He observed  that the            
amendment would  add another element  that would have to  be proven            
in a  criminal case.  He noted  that condoms  break and the  person            
being exposed needed  to know that they had the potential  of being            
infected.  He maintained  that  the  department had  testified  the            
previous year  that most of  the cases in  the state resulted  from            
consensual  sex; the question  was whether  the consent would  have            
been given  if the individual was  informed upfront. The  amendment            
would criminalize the act, not the disease.                                    
                                                                               
In response to a  question by Senator Phillips, Mr.  Ambrose stated            
that he  did not  know of  any laws  currently in  place in  Alaska            
that prohibited  a person  from transferring  any other  infectious            
disease. He  added that a person  in Alaska with an active  case of            
tuberculosis  could be  involuntarily detained,  but the  detention            
was a civil action, not a criminal one.                                        
                                                                               
Senator  Phillips expressed  concerns. Mr.  Ambrose responded  that            
the  concern  related  to  the  consequences   of  contracting  the            
disease;  hepatitis cases  could be  fatal, but  could be  treated,            
while HIV was deadly.                                                          
                                                                               
Senator  Pearce  MOVED  to  REPORT  SB 17  out  of  committee  with            
individual recommendations and the accompanying fiscal note.                   
                                                                               
An OBJECTION was MAINTAINED.                                                   
                                                                               
A roll call vote was taken on the motion.                                      
                                                                               
IN FAVOR: Pearce, Donley, Phillips, Torgerson, Sharp                           
OPPOSED: Adams                                                                 
                                                                               
The MOTION PASSED (5-1).                                                       
                                                                               
SB 17  was REPORTED out of  Committee with "no  recommendation" and            
three previously published fiscal notes: ADM, LAW, and DPS.                    
                                                                               

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