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Wednesday, June 07, 2017

BEYOND AIDS POSITION, HIV EXPOSURE PENALTIES; CA SB 239

The following letter to California state Senator Scott Wiener outlines the Beyond AIDS position on this controversial issue. Beyond AIDS will engage in dialog with any party in any state concerning solutions to this troublesome issue.



June 2, 2017

Honorable Senator Scott Wiener
California State Capitol
Sacramento, CA

RE: WE OPPOSE SENATE BILL 239 AND SUGGEST AMENDMENTS TO CHANGE THE BILL

Dear Senator Wiener:

Beyond AIDS opposes SB 239, because it eliminates safeguards to public health. Beyond AIDS is a national organization, based in California, which is dedicated to reversing the HIV/AIDS epidemic through sound public health policy. The wording in SB 239 substituting for existing law fails to provide a disincentive to irresponsible willful or negligent behavior that endangers unknowingly exposed persons. The bill also does not take into account scientific advances that determine the degree of communicability.

In recent years, a virtual ideology has arisen in the name of “decriminalization of HIV.” We believe that this way of thinking is dangerously erroneous, and regret that it seems to have persuaded a number of well-intentioned organizations to support this bill as well as periodic initiatives in other states.

Penalties against endangering the lives and health of others are universal and considered necessary among all societies on earth, and they are directed at dangerous behavioral abuses rather than at a state of being. Thus, shooting at someone without cause is illegal, but this does not “criminalize” gun ownership or serve as a disincentive to it. Similarly, dangerous acts in a vehicle such as driving a car into a crowd of pedestrians, or negligently running someone over, are illegal, but that does not “criminalize” or serve as a disincentive to driving, car ownership, or obtaining a driver’s license. 

Similarly, behaving in a dangerous manner that exposes others to a significant risk of HIV infection must be illegal, and that does not “criminalize” HIV or serve as a disincentive to being tested.
Another invalid argument against penalties for dangerous behavior exposing others to HIV is that they somehow add to the stigma of HIV, or of minorities that have higher HIV prevalence rates. The opposite is more likely and logical, i.e., people with HIV, gay men, etc. should be less subject to stigma as a source of danger, if it can be noted that they are unlikely to endanger others since there would be penalties for that. Dangerous behavior may be committed by anyone, and cannot be attributed only to one group.

We shall take this opportunity to address the various things that SB 239 would do, so that we can explain our specific objections and some alternative proposals that take into account recent scientific evidence. The statements about existing law come from the Legislative Counsel’s statements in the bill itself.

      A. Existing law makes it a felony punishable by imprisonment for 3, 5, or 8 years in the state prison to expose another person to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV.  SB 239 would repeal this provision.

There are valid criminal justice and public health justifications for this provision of law. This type of egregious behavior should be treated similarly to assault with intent to inflict death or grievous bodily harm. Although current treatment helps most patients with HIV to live for many years, HIV/AIDS is still an often-lethal disease. The number of deaths attributed to HIV in 2014 was 6721, more than a sixth as high as the number of new HIV infections in 2015, 39,513 https://www.cdc.gov/hiv/statistics/overview/ataglance.html). The public health concerns are amplified by the likelihood of secondary infections. Although it is difficult to prove intent, and such prosecutions are rare, having such a provision for felony prosecution in the law serves as a warning against intentional acts to infect another person with HIV/AIDS. Softer approaches such as education will have no effect, since the perpetrator is already aware of his infection. This provision should not be repealed. Some of our Board members, however, would be comfortable with reducing the offense from a felony to a misdemeanor.

B. Existing law makes it a felony punishable by imprisonment for 2, 4, or 6 years for any person to donate blood, tissue, or, under specified circumstances, semen or breast milk, if the person knows that he or she has acquired immunodeficiency syndrome (AIDS), or that he or she has tested reactive to HIV. SB 239 would repeal this provision.

There are valid criminal justice and public health justifications for this provision of law. We need to safeguard the life-saving blood bank supply. Anyone who violates this provision has lied in the course of the blood donation process, and has endangered the public health, as well as wasting the time and resources of blood bank and laboratory staff. Knowingly donating blood or tissue if one knows one is HIV positive is a reckless endangerment of the life and health of the potential recipient. The public health concerns are amplified by the likelihood of secondary infections. There are screening tests for donated blood, but they are not foolproof, and there are some false negatives. This provision should not be repealed. Some of our Board members, however, would be comfortable with reducing the offense from a felony to a misdemeanor.

      C. Also as per the Legislative Counsel, existing law provides that a person who is afflicted with a contagious, infectious, or communicable disease, who willfully exposes himself or herself to another person, or any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor. SB 239 would repeal this provision, and replace it with a misdemeanor penalty, but only if the exposure actually caused infection.

Negligently exposing someone to HIV is still a great public health problem, and there should be a penalty because the infected patient is already aware of his status, so further education is highly unlikely to be of any help. However, the current law is unfair in that it does not specifically require that the infected person be aware of the infection, and that the exposed person not have been informed. It is also unscientific, in that it does not mitigate punishment to the extent that and that precautions have been taken to reduce infectiousness, and it treats all contagious diseases as if they were equally dangerous and contagious. Someone with the flu who went out in public could theoretically be charged with a misdemeanor under the current wording. SB 239 would replace this with a misdemeanor penalty of up to 6 months incarceration, but only for intentional infection that actually occurred. As mentioned above, it is almost impossible to prove intent, and this would leave no recourse to persons who had been negligently exposed without their knowledge, regardless of whether they were actually infected.

The following amendments to the current provision (not in legal language) are therefore proposed:
1)   Since HIV is incurable and is so much deadlier and more serious than most other contagious diseases, many of which resolve spontaneously or are curable with treatment, it would be reasonable to limit this provision to HIV. Should it continue to apply to all contagious diseases, a clause should be added whereby the court should take into account the severity, spontaneous resolution, or curability of the infection in determining any penalty.
2)      This provision should require that the infected person be aware of the infection, and that the exposed person(s) not be informed.
3)      There should not be a requirement that the exposed person(s) actually become infected. However, the penalty could be cut in half if infection did not actually occur. This is in keeping with Penal Code Section 664, whereby an unsuccessful attempt to commit a crime generally results (upon conviction) in a penalty half that if the attempt were successful. A similar reduction in penalty for willful or negligent endangerment (as with willful exposure to HIV) seems reasonable.
4)      There should be a clause whereby the court should take into account as mitigating factors any protective measures taken by the infected person, including: a) barrier protection; b) the use of medication that reduces infectiousness; c) any recent test that gave evidence of non-contagiousness; d) the concurrent administration to the exposed person(s) of prophylactic medication that reduces the risk of acquiring the infection.
  
      D. Under existing law, if a defendant has been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed, the previous conviction and positive blood test results are to be charged in any subsequent accusatory pleading charging a violation of prostitution. Existing law makes the defendant guilty of a felony if the previous conviction and informed test results are found to be true by the trier of fact or are admitted by the defendant. SB 239 would repeal this provision.

There are valid criminal justice and public health justifications reasons for this provision of law. Even though the clients of prostitutes are violating other provisions of law, they should not be at risk of unknowingly acquiring a highly dangerous and potentially lethal infection. The public health concerns are amplified by the fact that such clients are likely to infect wives and other partners, keeping the HIV epidemic expanding. This provision in existing law should not be repealed. However, it could be made more fair and scientific. The following amendments to the current provision, and their rationale, are hereby proposed (not in legal language):

1)      If the prostitute has warned all of her clients about her infection, AND insists on the use of condoms for sexual intercourse, AND is taking antiretroviral medications and has received a most recent viral load result showing an undetectable level of virus, the heavier penalty in this provision should be waived. This provides an incentive for safe practices for the prevention of HIV, which helps to protect the public health. It also is an incentive for helping to assure that clients are not exposed without their knowledge.
2)      If the prostitute has warned all of her clients about her infection, AND EITHER insists on the use of condoms for all sexual intercourse, OR is taking antiretroviral medications and has received a most recent viral load result showing an undetectable level of virus, the offense should only be a misdemeanor, not a felony. This provides a partial incentive for safer practices, which are of benefit to public health. It also is an incentive for helping to assure that clients are not exposed without their knowledge.
  
E. Existing law requires the court to order a defendant convicted for a violation of soliciting or engaging in prostitution for the first time to complete instruction in the causes and consequences of acquired immunodeficiency syndrome (AIDS) and to submit to testing for AIDS. Existing law requires such a defendant, as a condition of either probation or participating in a drug diversion program, to participate in an AIDS education program, as specified. SB 239 would repeal this provision.
This provision should be retained, because it has benefits to public health and is not excessively burdensome.

F. SB 239 would also vacate any conviction, dismiss any charge, and legally deem that an arrest under the deleted provision never occurred. The bill would require any court or agency having custody or control of records pertaining to the arrest, charge, or conviction of a person for a violation of the deleted provision to destroy, as specified, those records by June 30, 2018. By imposing this duty on local agencies, the bill would impose a state-mandated local program. The bill would also authorize a person serving a sentence as a result of a violation of the deleted provision to petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case. The bill would require a court to vacate the conviction and resentence the person to any remaining counts while giving credit for any time already served.

This provision of SB 239 is unwise. It is important for both public health and criminal justice to retain a record of repeat offenses that endanger public health and safety.
Beyond AIDS is willing to join in negotiations on amendments to SB 239. We suggest that this become a two-year bill, and that stakeholders discuss the above considerations during the coming months. Please notify us of any proposed amendments, as this bill moves through the Assembly.

Sincerely,

Ronald P. Hattis, MD, MPH
President, Beyond AIDS