Legislature(1995 - 1996)
03/08/1995 09:07 AM Senate HES
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* first hearing in first committee of referral
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SHES - 3/8/95
SB 91 CRIMINAL TRANSMISSION OF HIV
Number 350
CHAIRMAN GREEN introduced SB 91 as the next order of business
before the committee.
JOE AMBROSE, staff to Senator Taylor, explained that the goal of
SB 91 was to put Alaska in a proactive position with regard to
individuals who knowingly put others at risk to HIV infection.
SB 91 intends to be preventative, punitive, and render a criminal
rather than moral judgement. As of December 31, 1994, 272 Alaskans
have been confirmed to have AIDS, of those 152 have died. He noted
that the Epidemiology Section of the Division of Public Health
reports that 540 Alaskans, only those who voluntarily tested
through the state section of laboratories, have tested positive for
HIV infection as of December 31, 1994. The rate of infection in
Alaska is growing.
Mr. Ambrose pointed out that under current state law, someone who
intentionally attempts to kill another by infecting them with the
AIDS virus can be charged with attempted first degree murder. What
happens when an individual does not intend to kill with this virus,
but puts others at risk? He stated that in 1990 the attorney
general suggested that a person who puts others at risk with the
AIDS virus could be prosecuted for reckless endangerment. Reckless
endangerment is a Class A misdemeanor which prohibits reckless
conduct that creates substantial risk to serious physical injury;
most would view becoming infected with HIV as more than a serious
physical injury.
Mr. Ambrose stated that 26 other states have adopted specific laws
regarding knowingly transmitting or exposing another to HIV
infection. SB 91 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 an exposed
individual knows beforehand that the action could result in
infection. He said that SB 91 is not intended to punish those who
have HIV; the bill intends to protect others who may be unknowingly
exposed to the virus. An Illinois Statute that has been in place
since 1989 is the basis for SB 91. He informed the committee that
this statute has been upheld in the Illinois court system; the bill
has been upheld as constitutional. Mr. Ambrose discussed the
concern that SB 91 would discourage testing of HIV. He said that
HIV/AIDS tests have been increasing in Illinois since this statute
has been in place.
Mr. Ambrose said that the suggestions Dr. Nakamura would offer
regarding the transmission of the virus to unborn children did not
pose a problem for Senator Taylor. He recognized that SB 91 may
encourage some individuals to avoid being tested in order to
alleviate the possibility of criminal prosecution; if the other
involved party knows such information then there can be a
consensual choice. SB 91 addressed intimate contact, blood
transfusions, organ and tissue donations, and drug paraphernalia.
SB 91 should encourage safe sex practices rather than discourage
testing.
Number 423
BARBARA BRINK, Deputy Director of the Alaska Public Defender
Agency, informed the committee that she had been a public defender
in Alaska for 12 1/2 years. The Alaska Public Defender Agency
expressed concern with the broad language of SB 91. The prohibited
behavior should be clearly specified in order that the average
individual knows exactly what actions are prohibited and are
criminal. SB 91 does not provide due process notice. She pointed
out that much of what is prohibited is sexual contact which is
defined very broadly; there is much debate as to conduct that
results in the transmission of HIV. SB 91 would criminalize
behaviors that she felt were not intended to be criminalized such
as the transfer of HIV from a mother to a fetus. The
criminalization of voluntary blood and organ donations seems
unnecessary since the medical profession already does routine
screening procedures for HIV.
Ms. Brink pointed out that SB 91 shifts the burden of proof to the
person accused of the crime; normally, the constitution provides
that the state must prove someone guilty to the jury beyond a
reasonable doubt. She stated that the intent of SB 91 was good;
every effort to discourage the transmission of HIV is a positive
step. Using criminal law in order to contain a communicable
disease does not seem appropriate. She felt that SB 91 would
discourage testing. The fact that testing has increased in
Illinois since they enacted similar legislation proves nothing;
testing across the nation has increased as the number of HIV
infections and AIDS has increased. She posed the example of when
the state became involved with crack babies. Mothers did not seek
medical care that was needed for themselves and their babies due to
the criminal consequences of having a crack baby; they would lose
their baby and have criminal penalties.
Ms. Brink stressed the need to encourage voluntary testing and
behavior modification which SB 91 does not achieve. She explained
that the moral issues attached to AIDS have created discrimination
against people with AIDS. This discrimination poses a barrier to
those with the disease and the punitive efforts in SB 91 would
further that barrier while making preventative measures more
difficult to achieve. She emphasized that there are other serious
health care concerns in Alaska besides HIV/AIDS such as
tuberculosis and hepatitis. Other health care issues do not place
criminal repercussions on the disease in order to stop the spread.
There are better manners in which to promote public health.
Ms. Brink explained that, as a practicing criminal defense
attorney, there are currently laws in Alaska that punish and
isolate persons who deliberately, intentionally, or recklessly
infect others. She informed the committee of various existing laws
one of which would prosecute a person for attempted murder if they
intentionally transmit the disease. In conclusion, Ms. Brink urged
that SB 91 not be passed in order that the criminal justice system
be left untouched in regards to this public health concern.
Number 499
SENATOR ELLIS inquired as to the difficulty in proving the infected
person's knowledge of their disease; are medical records
confidential under all circumstances in a legal proceeding? How
would the state prove that an individual knew their HIV status?
BARBARA BRINK explained that there are numerous federal and state
regulations, as well as rules of evidence and procedure which
effect the confidentiality of medical records. Many persons who
receive testing not only have confidential testing, but also
anonymous testing. There would be no way to identify people who
were anonymously tested. Anonymous testing is used in order to
prevent the misuse of confidential medical records.
SENATOR SALO asked Ms. Brink how a trial would proceed under
current law regarding the intentional transmission of the disease
as opposed to under SB 91. BARBARA BRINK explained that under
current law in Alaska when a person is charged with an intentional
crime, the State of Alaska must prove that person's intention
beyond a reasonable doubt. Under SB 91, the defense would have to
prove that the infection was not intentional because the other
person knew of the infection and consented to the conduct; the
defense would assume various obligations in order to prove his case
to the jury.
Number 544
RANDALL BURNS, Executive Director of the Alaska Civil Liberties
Union (ACLU), noted that a position paper had been sent to the
committee. He expressed concern that there would be an invasion of
privacy in order for the state to prove intentional transmission.
The case would be the word of two opposing individuals. He
reiterated the concerns with the court being able to gather
sufficient facts that a person knowingly transmitted the disease.
He restated the point that existing law already provides a
mechanism to bring claims against such persons as SB 91 addresses.
The most serious repercussion of SB 91 would be the possibility of
discouraging testing by criminalizing the transmission of the
disease. He stated that ACLU was opposed to SB 91.
DR. PETER NAKAMURA, Division of Public Health in the Department of
Health & Social Services, reiterated that SB 91 does not
significantly increase the ability to prosecute persons who
knowingly expose others to HIV beyond current law. He too pointed
out that SB 91 could discourage testing in order for persons to be
precluded from prosecution under this law. Criminalization of HIV
exposure could undermine the prevention strategy which encourages
testing of those at high risk.
TAPE 95-11, SIDE B
Number 587
DR. NAKAMURA addressed concerns that SB 91 could discourage high
risk women from HIV testing and discourage HIV positive women from
receiving prenatal care. There is no way to measure the impact of
SB 91 with regards to the possibility of decreasing testing. He
assumed that SB 91 would attempt to effect those engaging in high
risk behaviors, however, the majority of persons infected with HIV
are responsible citizens and would not be in the high risk
category. Dr. Nakamura stated that if SB 91 were pursued, he would
suggest the following amendment: page 1, line 9, add "voluntary"
before "engages" and after "person" add "without the reasonable use
of prophylactic measures designed to minimize the risk of
transmission of sexually transmitted disease."
SENATOR ELLIS asked if the amendments Dr. Nakamura would be
suggesting were in writing. CHAIRMAN GREEN explained that she
intended to have the written amendments at the March 10, 1995
meeting.
DR. NAKAMURA offered another possible amendment on page 1, line 12,
after "another" add the following language, "excluding perinatal
transmission."
SENATOR SALO inquired as to the position of the Department of
Health & Social Services. DR. NAKAMURA stated the department's
opposition to SB 91.
SENATOR LEMAN asked what are the "reasonable prophylactic measures
designed to minimize the transmission of sexually transmitted
disease" and what are the percentages with such measures. DR.
NAKAMURA pointed out that with the use of condoms, the possibility
of transmission would be reduced to approximately 1 to 10,000.
DEBORAH VANDRUFF, Director of Stop AIDS, reiterated the concern
that SB 91 would discourage HIV testing. Currently three quarters
of the Alaskan population have not been tested for HIV.
Number 535
RITA DE SOUZA, Executive Director of Alaskans Living with HIV,
informed the committee that this is a state-wide agency which does
prevention education and advocacy services on behalf of persons
infected with HIV and AIDS and their family and friends. She
applauded the common sense approach of the previous witnesses. She
indicated that SB 91 would not encourage testing. This epidemic
has been in progress for 14 years. She mentioned the notion of
contributory negligence which means that engaging in high risk
behavior without some protection indicates that the newly infected
person has been negligent in their own infection.
Ms. De Souza read the letter that she intended to send to
newspapers across the state. In the letter, she said that SB 91
was counter productive in combating HIV disease. She did not
understand why existing statutes such as assault, sexual assault,
rape and attempted murder were not sufficient. Why not include
other sexually transmitted and communicable diseases in with the
criminalization of HIV; why is HIV being singled out? She
expressed concern that SB 91 would discourage testing for HIV. The
World Health Organization states that 90 percent of those infected
with HIV do not know they have the disease. She indicated that
testing would not work unless it was confidential or anonymous;
people desiring testing may need to be warned of the possibility of
becoming liable for the transmission of HIV under SB 91. Measures
such as SB 91 have been defeated in the lower 48 because such
legislation would leave people fearful of being tested and the
disease would be driven underground where it would continue to
spread.
Ms. De Souza felt that legislative concerns regarding HIV could be
better addressed through education prevention. She expressed
disillusionment that last year's Senate killed the healthy student
bill. She pointed out that the state-wide survey done by the
Epidemiology Section every two years for the past six years has
expressed the need to teach HIV education in public schools; 96
percent of those polled said that children should be taught how to
protect themselves. SB 91 would address the rare case in which an
individual would purposely transmit HIV to another. Comprehensive
HIV education to teens and adolescents would save young lives; they
are the fastest growing group of those contracting HIV, according
to the CDC.
Number 479
SENATOR LEMAN said that he was glad to meet Ms. De Souza. He
indicated that Ms. De Souza had made a number of comments in the
letter that she read that were not true. He suggested that Ms. De
Souza review the record in order to find the truth. In regard to
the mandatory sex education bill, sex education was already being
done so why mandate what was being practiced? He discussed the
amendment that he had offered on past legislation. He too wanted
positive measures to end the spread of HIV and he too wanted to
educate the public about HIV. He said that Ms. De Souza was doing
an injustice when she distorted his efforts.
CHAIRMAN GREEN indicated the need to begin the presentation by the
Division of Public Assistance.
RITA DE SOUZA expressed the need to talk with Senator Leman. She
pointed out that her facts came from the CDC, the World Health
Organization, and the Epidemiology Section of the Alaskan
Department of Health & Social Services. She informed the committee
of a poll of parents by the Department of Education which found
that 52 percent of parents said that their children were receiving
sex education as opposed to the 100 percent that Senator Leman
suggested.
SENATOR ELLIS requested that SB 91 be held until next week because
he would be unable to attend Friday's meeting due to state and
personal business. He indicated that he had questions for the
sponsor. He hoped that this committee would spend more time on
SB 91. SENATOR SALO made the same request.
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