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.
CONCLUSIONS:
Please veto SB 239
for all of the above reasons.
Sincerely,
Ronald P. Hattis, MD, MPH
President, Beyond AIDS
