Wednesday, June 07, 2017
BEYOND AIDS POSITION, HIV EXPOSURE PENALTIES; CA SB 239
The following letter to California Governor Jerry Brown outlines the Beyond AIDS position on this controversial issue. Against the opposition of Beyond AIDS, the bill was signed into law.
September 15, 2017
Hon. Governor Edmund “Jerry” G. Brown
Office of the Governor, Suite 1173, California State Capitol
Sacramento, CA 95814
Fax: 916-558-3160 (5 pages)
RE: REQUEST VETO OF SB 239 (WIENER); COSTS AND RISKS TO STATE
Dear Governor Brown:
Beyond AIDS, an organization dedicated to reversing the course of the HIV epidemic through sound public health policy, urges that you veto SB 239 (Wiener). This bill will endanger public health and safety and risk excessive costs to the state. The AIDS groups in support, who like the repeal of penalties that only apply to HIV-infected individuals, have paid no heed to the public health implications and how they would endanger the state’s population. Beyond AIDS is unique among AIDS-related organizations in that it prioritizes public health.
SPONSORS REFUSED TO COMPROMISE WITH CONCERNED PUBLIC HEALTH OPPONENTS; BILL REPEALS ALL PENALTIES FOR WILLFUL EXPOSURE TO ANY COMMUNICABLE DISEASE
On Wednesday, August 16, a conference call was held with the sponsors of SB 239 and some of the opponents, including the California Academy of Preventive Medicine. Our organizations approached this meeting with a very reasonable compromise proposal, making many concessions, including agreeing to the repeal of all current felony penalties and of all current penalties specific to HIV. The sole thing we held out for, in the interests of protecting the public against not only HIV but also many other communicable diseases affecting public health, was to retain an existing misdemeanor penalty in the Health and Safety Code (Section 120290) for willful exposure to a communicable disease. SB 239 abolishes this, along with all lthe other penalties, in effect throwing out the baby with the bathwater. We offered to soften the wording of that section to make it more specific and scientific, exempting cases in which the exposed person was informed and consented, or where precautions against transmission were taken Alternatively, other wording was offered to accomplish essentially the same thing. The sponsors would not compromise even to change a single word, leaving no choice other than to oppose the bill.
HSC 120029 applies to any communicable disease, not just HIV. It is necessary to retain this in state law, to maintain clout to control the future spread of Ebola virus, deadly new strains of influenza, SARS, and future emerging contagious diseases.
FINANCIAL COSTS TO THE STATE AND COUNTIES
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 to any communicable disease. As a result, it subjects the state to significant financial liability.
Let us take HIV not as the sole infection, but as an example. The bill removes all deterrents to reckless and unsafe behavior exposing others to HIV. Some additional cases of HIV infection are bound to result, and each one carries an estimated lifetime cost for persons who become HIV infected at age 35 is $326,500 (60% for antiretroviral medications, 15% for other medications, 25% non-drug costs). For individuals who remain uninfected but at high risk for infection, the discounted lifetime cost estimate is $96,700. (Reference: Med Care. 2015 Apr; 53(4): 293–301, full text readable online at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4359630/.) For younger patients, the costs are greater because they live longer with the virus; for untreated patients who develop AIDS and require hospitalization, the cost can be millions.
For each patient on regular Medi-Cal, 50% of this cost will be borne by the state. For expanded Medi-Cal, state costs are currently less, but will greatly increase if any Republican health reform legislation is passed. In addition to direct state costs, the county hospitals will be taxed with huge expenses for HIV treatment of uninsured patients.
The state is also fully responsible for 100% of treatment costs for incarcerated persons in state prisons and in state hospitals, who are particularly likely to willfully expose others to HIV or another communicable disease, unless there is a deterrent penalty such as an extension of incarceration.
In addition, public health data show that each person infected by a person not deterred by the weakened law will, on average, spread the infection to others. The current transmission rate is 5%/year, with an average life expectancy of over 20 years, so the epidemic will tend to get worse and worse as a result of this bill. (Reference: Public Health Rep. 2010 May-Jun; 125(3): 372–376, full text readable online at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2848261/) Of course, each new case will incur the same treatment costs as above, multiplying the expense to the state and the danger to the public.
Additional potential state costs may result from this bill. It eliminates the requirement for HIV testing and education of two extremely high-risk groups, drug users in diversion programs, and persons convicted of prostitution. These programs are effective, and their elimination can be predicted to result in more new cases of HIV, as well as more transmission by those who are already infected but may not know it. We recommended retention of these programs, but the sponsors refused to do so.
THE FALLACY OF “HIV CRIMINALIZATION” AND STIGMA
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.
Thus, shooting blindly into a crowd 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. A similar analogy is that driving under the influence of alcohol is illegal, but that does not “criminalize or serve as a disincentive to drinking.
Similarly, behaving in a dangerous manner that exposes others to a significant risk of communicable diseases, including but not limited to HIV infection, should be illegal, and does not “criminalize” those diseases (including HIV) or serve as a disincentive to being tested. The same organizations now supporting SB 239 once fought against our campaign for reporting of HIV infections to public health. They claimed that this would reduce HIV testing, but in fact, testing increased after this, and today’s National HIV/AIDS Strategy relies on testing, reporting, and outreach to those testing positive to link them to treatment.
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.
THERE IS NO VALID SCIENTIFIC EVIDENCE TO SUPPORT THE SPONSORS’ CLAIMS
The sponsors claim that having criminal penalties for egregious behavior that threatens to spread HIV and other communicable diseases does not reduce the incidence of those diseases. However, there is no evidence for that claim. The most recent article cited by the sponsors is by Sweeney et al. in the journal AIDS in June of this year. (http://journals.lww.com/aidsonline/Citation/2017/06190/Association_of_HIV_diagnosis_rates_and_laws.15.aspx). It found that states that 30 states that have laws criminalizing HIV exposure do not have lower HIV diagnosis rates. However, we would expect that the states with higher rates would have been more prone to adopting such laws, and that states with high rates would do more testing and therefore find more cases. So the fact that these states do not have higher rates could in fact be cited as evidence of effectiveness, not ineffectiveness. Most other articles in the literature on this subject are just emotional and ideological essays, or scattered anecdotal examples of miscarriages of justice in places like Zimbabwe.
THE SPONSORS CONCEDE THAT SOME EXPOSURE SHOULD BE CRIMINAL BEHAVIOR, BUT ARBITRARILY EXCLUDE WILLFUL/RECKLESS EXPOSURE
The current bill does create a misdemeanor penalty for intentional and successful transmission of an infectious or communicable disease, but legal experience has shown that proof of intent is almost impossible, and such statutes can rarely be used. The bill also creates a misdemeanor penalty for intentional exposure without requiring actual transmission, but the penalty of only 90 days is so mild for such an egregious offense as to be inadequate. The proposed amendments include increasing this penalty to six months, which was in the original wording of the bill. This is still a significant reduction from the current law, which makes intentional and successful exposure a felony when applied to HIV. Also, if our amendments were accepted (either alternative), there would be no remaining criminal penalties specifically relating to transmission of HIV, although ironically, criminal and civil penalties would remain for informing someone that a person has HIV without the consent of the infected person. This demonstrates that the supporting organizations want to evade all accountability for irresponsible behavior, and not to totally de-exceptionalize the disease.
SB 239 also creates a new offense entitled “reckless exposure to an infectious or communicable disease,” but it only applies for 4-8 days, and only if a health officer happens to know of a specific individual who poses a specific risk. SB 239 also does not specify a penalty for this offense, so as a misdemeanor it could be up to a year in county jail, 4 times more severe a penalty than for the more egregious offense of intentional exposure. Ironically, in the case of HIV, it is illegal for anyone (even a physician) to actually notify a health officer of a risky exposure situation without the infected person’s written authorization (see Health and Safety Code Section 121015), so this provision would almost be moot for that disease.
Imagine if the only penalty for other life-threating endangerments were to apply only if law enforcement were able to predict the perpetrator and the offense, and to have issued an order in advance not to commit the offense. That is not how the criminal justice system works; we rarely can predict a crime in advance, and we prosecute after the fact. The California penal code is unlike that of many other states in lacking a crime of reckless endangerment (reference: California Penal Code), so the offense of reckless exposure to an infectious or communicable disease can be most useful if it applies to actions that fulfill three of the five conditions for intentional, successful infection of another person, as provided in an alternative we proposed with our proposed amendments:
a) The defendant knows of the infection (A above);
b) The defendant engages in the reckless behavior causing exposure (C above); and
c) The person exposed did not know of the infection (E above).
Violation of a health officer instruction would be an alternative criterion for this crime. The proposed amendments, Alternative 2, sets a maximum of 90 days of jail time, which would be appropriately less than for intentional exposure. All of the other wording in the section providing for protection of the defendant’s rights would be retained.
EXAMPLES OF WHY A CRIMINAL PENALTY FOR WILLFUL/RECKLESS EXPOSURE OF OTHERS TO COMMUNICABLE DISEASES IS NECESSARY FOR THE PROTECTION OF PUBLIC HEALTH
Public health ultimately relies on police powers, including the power to punish, isolate, or quarantine, to protect the public from serious communicable disease threats. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/) A significant portion of all transmission of communicable diseases is caused by behavior that exposes others without notifying them and without any precautions against transmission, and also without specific intent to infect an individual. Even a single person engaged in such behavior can cause an outbreak. It is this irresponsible type of behavior which cannot be deterred by threat of punishment in the current SB 239.
A man infected with multi-drug-resistant TB traveled through the U.S. and Canada and flew on commercial flights to get married, and was only isolated upon his return by a CDC order followed by the imposition of Georgia state law (https://en.wikipedia.org/wiki/2007_tuberculosis_scare.) Without such provisions in state laws, or the threat of incarceration, it can be impossible to control the spread of dangerous organisms.
Control of the SARS epidemic would not have been successful without involuntary isolation and the threat of punishment for violating it.
One young man with HIV in New York infected 13 girls at the school, several of whom became pregnant and had HIV-infected babies.
A patient at Patton State Hospital with some psychopathy traits wanted to infect as many men with HIV as she could, by seducing them and by exposing them to her blood, her rationale being that “some guy” had infected her. Had she gone to court, her behavior could have been proven, but she could have easily denied intent to infect any specific individual.
ARGUMENTS FOR PUNISHMENT FROM CRIMINAL JUSTICE THEORY
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.
Criminal justice theory justifies punishment on several bases:
a Utilitarian: deter future crime by the defendant; includes rehabilitation
b Retributive: includes keeping the offender off the streets to temporarily avoid re-offence
c Denunciation: make the public aware of the penalty, to deter future crime by others
All of these rationales are appropriate in the case of willful/reckless exposure to a communicable disease.
Please veto SB 239 for all of the above reasons.
Ronald P. Hattis, MD, MPH
President, Beyond AIDS