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.