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.