SB 17 CRIMINAL TRANSMISSION OF HIV  Number 346 CHAIRMAN WILKEN introduced SB 17 as the last order of business before the committee. JOE AMBROSE , Staff to Senator Taylor, 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 judgement. 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 or 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 ...quote..."it might be possible to prosecute the person for reckless endangerment"... end quote. That is a class A misdemeanor prohibiting reckless conduct which create 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 in drafting SB 17, the Illinois statute was used almost verbatim which was adopted in 1989. He noted that the Illinois statute was included in the committee packet as well as a summary of the laws passed in other states. The committee packet also includes 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. Number 287 With regard to the impact on HIV testing 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 not decreased. This year the Illinois Department of Health reported a decrease in public testing which was attributed to the increased availability of testing in the private sector as well as home testing. The Alaska Department of Health reported that the majority of cases resulted in consensual conduct. Mr. Ambrose asked if consent would have been given if the facts were known first. SB 17 merely places the responsibility on the infected person to advise the other person involved. THEDA PITTMAN , Alaska Civil Liberties Union, said that ACLU opposed SB 17 on constitutional grounds and the bill would undermine the efforts of the public health system. HIV transmission is a public health problem not a criminal problem. Anyone with a transmittable disease should understand how to avoid infecting others and utilize the appropriate precautions. In the rare instances when an individual recklessly or intentionally transmits HIV, Alaska law already provides the opportunity for prosecution. Therefore, this language will not add to the prosecutor's tools, but will likely decrease voluntary testing and the education management which typically accompanies testing and notification. Ms. Pittman pointed out that on page 2, lines 11-13 and lines 1-5 raise due process concerns regarding whether the state is providing adequate notice to prohibited behavior. The language on lines 1-5 regarding the affirmative defense shifts the burden of proof to the defendant as well as suggesting that the defense must seek information about the person allegedly exposed that would otherwise be confidential. Ms. Pittman stated that it made little sense to add a new law when the current law contains adequate provisions. Ms. Pittman urged the committee's opposition to SB 17. Number 241 DR. JOHN MIDDAUGH , Chief of the Section of Epidemiology in DHSS, opposed SB 17. The existing laws enable criminal prosecution and punishment of egregious behaviors of intentional transmission of HIV. Passage of SB 17 will discourage testing and participation in efforts to identify those who have potentially been exposed. Public health has had experience over many decades that illustrate that criminalization of infections harms the public health efforts to control disease transmission. Diseases such as Hepatitis B, Hepatitis C, the Herpes virus are more likely to be transmitted in the conducts associated with the transmission of HIV. Dr. Middaugh was also concerned about the definition of "intimate contact" which is so broad and could extend to many common activities that pose no risk for disease transmission of HIV or other pathogens. Sports, health care, EMT activity, etc. could fall under the definition of "intimate contact". Dr. Middaugh pointed out that the title of SB 17 reads, "An act creating the crime of criminal transmission of human immunodeficiency virus (HIV)" yet the bill has provisions that show that transmission is not required for criminalization of a potential exposure. Exposure is only when a person has contact with the virus regardless of whether the virus actually infects another person. In most exposures to HIV, no transmission or infection of the exposed person occurs. Dr. Middaugh emphasized that the department is concerned about HIV and the department's efforts are aimed at the prevention of transmission and spread of the disease. SB 17 will harm preventive and public health efforts and therefore, Dr. Middaugh requested that SB 17 not be passed. CHAIRMAN WILKEN noted the presence of Anne Carpeneti, Department of Law, and Barbara Brink, Alaska Public Defenders. ANDREA NENZEL , Executive Director of the Alaska Native Assistance Association, explained that the Alaska Native Assistance Association is a private nonprofit group which provides direct services to persons living with HIV infection and provides education and behavior changes for the prevention of HIV infection. The Alaska Native Assistance Association Board and Agency are adamantly opposed to SB 17. SB 17 will deter efforts to prevent further HIV infection in Alaska by discouraging testing while promoting further ignorance and discrimination. Testing and appropriate counseling and care regarding responsible behavior to prevent transmission is the most effective way to reduce HIV transmission. Ms. Nenzel reiterated that the existing law provides adequate means to prosecute and punish anyone who intentionally or recklessly transmits HIV. SB 17 will open the door to numerous suits and the bill is fraught with potential for abuse by unhappy partners or people with grudges. Ms. Nenzel echoed the comments regarding the shift of the burden of proof of innocence on the accused person. Ms. Nenzel urged the committee to vote against SB 17. Number 164 BONNIE MCCORQUODALE , Executive Director of the Interior AIDS Association, urged the committee to reject SB 17 and any other effort to criminalize HIV transmission. Ms. McCorquodale has worked in the HIV prevention field for almost 10 years. The prevention of the spread of HIV is a public health issue not a issue that can or should be addressed by the criminal justice system. Sound public health policy encourages testing, notification of partners, treatment, and knowledge about the protection of others. SB 17 will discourage testing and other potential life-saving services. HIV is preventable and persons can protect against it. SB 17 only holds a portion of the population responsible. Ms. McCorquodale informed the committee that the Secretary of Health & Social Services and the National Institutes of Health confirmed that syringe exchange programs reduce the spread of HIV. The language in the bill which makes the exchange of nonsterile equipment a crime may work against one of the most effective methods for reducing HIV in Alaska. Ms. McCorquodale emphasized that SB 17 is discriminatory and creates a criminal class based on health status and would set prevention efforts back years. CAREY CUMMINGS , Interior AIDS Association of Alaska, opposed SB 17. Ms. Cummings said that effective public policy encourages people to make healthy individual choices and does not prohibit, limit, or prosecute on the basis of biological behavior. SB 17 is not prevention. By criminalizing the exchange of nonsterile intravenous drug use equipment, those people utilizing such programs could be prosecutable. Such criminalization would increase the nonsterile intravenous needles on the street as well as increasing the likelihood of the transmission of the virus. Ms. Cummings encouraged the committee to reject SB 17 because of its discriminatory nature. ANDY BINKLEY, Community Outreach Worker with the Interior AIDS Association, opposed SB 17 because it treats HIV transmission different from other diseases which could be just as life threatening. Mr. Binkley opposed the intravenous drug paraphernalia language which seems headed in the wrong direction. BARBARA BRINK, Director, Alaska Public Defender Agency, was concerned with using criminal laws to promote public health instead of using testing, education, and behavior modification. Ms. Brink assured the committee that Alaska laws are already sufficiently available to prosecute any person who either intentionally or recklessly transmits the HIV virus. She disagreed with the 1980 assessment that one can only be charged with reckless endangerment. The Alaska assault statutes vary with regard to what one can be charged with based both on the person's state of mind, whether the action was intentional, reckless, or negligent, and on the result of that conduct. Reading from the assault in the first degree statute, Ms. Brink clarified that a person commits assault if the person knowingly engages in conduct that results in serious physical injury to another under circumstances manifesting extreme indifference to the value of human life. Someone who engages in that type of behavior can be prosecuted for assault in the first degree - or assault in the second degree, if a person recklessly causes serious physical injury to another person. The Alaska Criminal Code is based on the Oregon Criminal Code which recently was successful in prosecuting someone when the person engaged in such intentional behavior. Number 045 Ms. Brink expressed concern with how broadly the statue is drafted. The broad definition of "intimate contact" makes unlawful not only unsafe sex, but safe sex. There is no provision for reasonable prophylactic measures - something education efforts have been trying to encourage. A person playing basketball, for instance, who incurs a bleeding wound could be charged unless he/she could prove that he/she informed everyone of his/her HIV positive status and that the people willingly assumed that risk. The meaning of reasonable efforts to inform medical personnel is unclear. Given universal precautions, this seems an unnecessary addition. With regard to the nonsterile paraphernalia provision, needle exchange programs have been proven to be very effective. Alaska has been chosen to receive a national grant to study the effect which she believed would come to a halt because people would be liable for turning in used and nonsterile needles. Ms. Brink was concerned with the shifting of the presumption of innocence. Normally going to trial with a criminal charge, one is presumed to be innocent, but in this case to prove that the person knowingly engaged in that conduct is an impossible task. TAPE 97-39, SIDE A Ms. Brink said that the American Bar Association has considered using criminal laws to try to curb the transmission of HIV and actively adopted a resolution to discourage that. A program of public education about HIV should be implemented as the most effective method of deterring behavior which poses a high risk of transmitting HIV. SENATOR LEMAN pointed out the definition for "intimate contact" on page 2. He believed at basketball games it was policy to identify those players who are carrying HIV which would be covered in the subparagraph about intimate contact. BARBARA BRINK agreed that in such organizations and circumstances as the NBA, precautions have been taken, but "any contact" is so broad and would not be limited to the NBA or NCAA. What if there was a car accident, more than one person was injured, there's bodily fluids, and the people in the car the person has been riding with have not been notified. It is not limited to only sexual contact. SENATOR LEMAN doubted that anyone voluntarily engaging in intimate contact would be in a car accident. RUTH EWIG strongly supported SB 17 because the person who had irresponsibly spread the deadly disease to another was held accountable. Ms. Ewig informed the committee of a newspaper article about a person who called an ambulance for a friend. The caller withheld the information about the friend's AIDS infection and mouth to mouth was performed by the ambulance attendant on the AIDS infected person. SHARON SMITH testified in favor of SB 17 because it makes a person accountable for spreading a deadly disease. Testing for HIV should be mandatory. Number 127 LISA SITES testified in favor of SB 17. There is so much information available on social issues, but it is not really working. Ms. Sites believed that our society has laws to protect people when others do not take personal responsibility. ANNE CARPENETTI, Department of Law, reiterated the department's opposition to SB 17. The Administration does not take the position that HIV is not a serious disease nor a serious problem. The Administration has compassion for the people who are suffering from the disease. The Administration believes that the best way to deal with HIV is through a public health effort. Our criminal laws do cover the conduct in question. SENATOR WARD moved to pass SB 17 out of committee with individual recommendations and the accompanying fiscal notes. There were no objections and it was so ordered.