SB 17 - CRIMINAL TRANSMISSION OF HIV Number 0130 CHAIRMAN BUNDE announced the next bill to come before the committee was SB 17, "An Act creating the crime of criminal transmission of human immunodeficiency virus (HIV)." He asked Senator Taylor's legislative assistant to address SB 17. Number 0130 MEL KROGSENG, Legislative Assistant to Senator Robin Taylor, Alaska State Legislature, said this bill does not criminalize the disease of HIV or AIDS; it criminalizes irresponsible conduct that puts others at risk. For those individuals who say this legislation criminalizes the disease, she offered the following parallel: It would be like saying that owning a gun is criminal because you shoot someone. In response to the Department of Health's statement that the majority of HIV cases in Alaska resulted from consensual sex, the question is, "Would consent have been given if the risk were known?" The bill does not shift the burden of proof to the defendant; the state would have to prove the defendant knew they were infected and did not warn the person being exposed. The provision of an affirmative defense protects the defendant; it does not shift the burden of proof. When asked in the Senate Finance Committee, the Department of Health and Social Services could not provide any substantiation to the claim that the bill will have a chilling effect on testing programs. In fact, the Illinois Department of Health advised the Alaska Legislative Research Section there was no decrease in testing as a result of their law. This statement came in March 1995, six years after the Illinois law had passed. Senate Bill 17 is modeled on the Illinois statute which has been upheld in both the Illinois Appellate and Supreme Courts. This legislation has no effect on needle exchange programs in the state. MS. KROGSENG noted that Congressman Coburn of Oklahoma, a medical doctor, has introduced HR 1062, the HIV Prevention Act. At the time SB 17 was drafted, HR 1062 had 90 co-sponsors in the U.S. House of Representatives. She referred to the summary of the HIV Prevention Act of 1997, which includes in its provisions, "Sense of the Congress language that the states should criminalize the intentional transmission of HIV." She said HR 1062 was endorsed by the American Medical Association. CHAIRMAN BUNDE asked if there were any questions of Ms. Krogseng. Number 0360 REPRESENTATIVE GREEN said, "You indicated that Illinois in a four year period - or I got two different dates there - but at least they haven't seen any change in the number of tests since they've invoked this law. Have you checked with any other states that may have done the same thing? What I'm wondering about is, is the fact that the number of tests being taken not decreasing because there are far more people infected with AIDS each year so that the number of tests could be going up, but the people being tested could be still this stigma or this concern with a penalty like this of some people deciding, 'hey I don't want to be tested - I don't want to know' - even though the tests don't go down because the number of people contacting the disease is going up." MR. KROGSENG said she had read in a document that there had been a decrease, but she was not aware of any other state being contacted as the Legislative Research Section had conducted the research for Senator Taylor's's office. She had read in a document that in one area there was mention of a decrease in the number of testing through the Department of Health, but it was believed the reason for that was because of the increased testing by private sector physicians which would not be counted in the Department of Health as well as the home testing kits that can now be purchased at drug stores. REPRESENTATIVE PORTER noted the testimony had been rather compelling both ways on this bill and it had taken him awhile to get it straight in his mind that the federal legislation proposed, and the criminal legislation passed in at least one other state based on that federal legislation, makes it a crime to intentionally transmit HIV. The committee had heard testimony that it is currently illegal under state statute to do that. He said, "If I have HIV and I have sex with someone and not only don't tell them about it, but have intent to intentionally transmit HIV, I have committed a felony under our statutes. The problem is, I think the federal legislation is a little bit suspicious for lack of being forthright - no one can prove that. You cannot - well I can't say that you can't because there's always the exception, but in the case - the typical kind of case - Yah, I knew I had it, but I didn't intend to give it to anybody - that puts a 95 percent (indisc.) to prosecution unless you've got some really unusual evidence. What this does, and I must step back to my prior career, is make it possible to prosecute these cases. This, to me makes sense. It says we have to show that you knew you had it, but if you know that you've got it, you've got to be a blithering idiot and then you're probably not going to be culpable of being charged anyway, not to know the risks of this behavior and transferring it to somebody else, and that is what will criminalize it; not this 'I intend to transmit HIV' which is a next to impossible level of proof to get." Number 0657 REPRESENTATIVE PORTER made a motion to move SB 17 from committee with individual recommendations and attached fiscal notes. REPRESENTATIVE KEMPLEN objected. CHAIRMAN BUNDE asked for a roll call vote. Representatives Dyson, Porter, Vezey, Green and Bunde voted in favor of the motion. Representative Kemplen voted against it. Representative Brice was absent. Therefore, SB 17 moved from the House Health, Education and Social Services Standing Committee by a vote of 5-1.