MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 7, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:10 p.m., on Monday, June 7, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus*
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Bob Erickson, Research Director
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Jerry Cade, M.D., Medical Director, HIV Services, University Medical Center, Las Vegas, Nevada
Ben Graham, Nevada District Attorney's Association
Kevin Kelly, Nevada Attorneys for Criminal Justice
Ron Angelone, Director, State of Nevada, Department of Prisons
Bob Gagnier, Executive Director, State of Nevada Employees Association (SNEA)
Michael H. Johaneson, Service Employee International Union (SEIU)
Victoria D. Riley, Nevada Trial Lawyers Association (NTLA)
Janine Hansen, Nevada Eagle Forum
Senator James opened the hearing on Senate Bill (S.B.) 514.
SENATE BILL 514: Prohibits certain conduct through which human immunodeficiency virus may be transmitted after testing positive for disease.
Senator James said the bill addresses two issues which must be resolved: First, the different degrees of culpability between "willful," "wanton" and "negligent" conduct; and secondly, the question of whether there are other diseases which can be passed on which should be included in the legislation.
The first to testify was Jerry Cade, M.D., Medical Director, HIV Services, University Medical Center, Las Vegas, Nevada. Dr. Cade stated he believed there were times when the transmission of human immunodeficiency virus (HIV) should be criminalized, particularly in cases of rape, transmission to a minor and intentional transmission. He said he had a concern with singling out HIV, "...when it really is simply another virus...you have other diseases which are like it." Dr. Cade mentioned hepatitis B, which is transmitted in the same manner as HIV. He said many individuals die from the complications of hepatitis B. Dr. Cade asked if other sexually transmitted diseases should be included in the bill. He also referenced situations where one partner is HIV positive and the other partner is aware of that but chooses to engage in sexual activity. Dr. Cade concluded:
I am very glad that this committee is addressing HIV disease. As I pointed out earlier, it is a crisis in this state. I appreciate your support of S.B. 466, and I hope to continue to work with you as we do address this crisis.
Senator Jacobsen asked Dr. Cade if there was one type of disease which was easier to contract than another. Dr. Cade answered hepatitis B was more easily contracted than HIV, but had a lower percentage of fatalities. He added the number of cases of HIV contracted through a "needle-stick" was four in one thousand; with hepatitis B it is 24 percent.
Senator James referred to a situation where one partner is HIV infected, the other is not but is aware of his partner's infection, and they have consensual sexual contact. He questioned whether the person infected with the virus would still be criminally liable with the bill as written, even though it would be a consensual situation. Senator James reviewed the language of the bill and asked Dr. Cade if he would comment on the possibility of changing the language of the bill to "...willfully and wantonly engaged in conduct with the intent of transmitting...." Dr. Cade replied it would be an improvement but asked what would prove "intent." Senator James said most states who have adopted such legislation have included as an offense blood donation by a person who knows he or she has HIV. He said that action would be covered by the bill since it could be interpreted as "willful or wanton conduct."
The next to testify were Ben Graham, Nevada District Attorney's Association and Kevin Kelly, Nevada Attorneys for Criminal Justice. Mr. Graham indicated there were different kinds of conduct to consider and "negligence" would have a little higher degree of culpability than "accidental." He indicated there should be different degrees of punishment for those classifications than there would be for "willful or wanton conduct." Mr. Graham suggested removal of the word "negligent" and retention of the words "willful" and "wanton."
Senator Titus suggested the possibility of amending the bill to only refer to blood donations. Senator James responded a number of states have done that.
Mr. Kelly stated he saw a problem with the bill as written was the matter of proof. He said he felt the law might be held unconstitutional because of the "negligence" aspect.
Mr. Graham referred to a "consensual" situation and said there was a theory of law that if it takes two to commit a crime, you do not have a punishable offense. He said if two persons choose to engage in "careless activity," regardless of the consequences, there would be no offense.
Mr. Kelly indicated there was a potential for false allegations by a person who is aware another person is HIV-positive. He said there would be a difficulty in proving unprotected sexual activity took place.
Senator James indicated he would return to a discussion of S.B. 514 after hearing the other bills on the agenda.
The chairman opened the hearing on Senate Bill (S.B.) 515.
SENATE BILL 515: Extends time certain offenders are placed under supervision of director of department of prisons for participation in program of regimental discipline.
The first to testify was Ron Angelone, Director, State of Nevada, Department of Prisons. Mr. Angelone explained the bill as a "housekeeping measure." He indicated it took 30 days to take an inmate through a physical and psychological testing process, which left only 120 days for that inmate to complete the program of regimental discipline. Mr. Angelone said the extension of time will allow the judge and the Department of Prisons to work together in order to keep certain persons in the program for a full 150 days after the testing has been completed. He indicated there would be no major fiscal impact on the state, since it was a small number of inmates which would require the additional time.
Senator McGinness asked if it ever took less than 30 days to determine an inmate's eligibility for the regimental discipline program. Mr. Angelone answered it usually took the entire time to do the testing process. Senator McGinness suggested a change from language which indicated they "must" use the 30 days to "may." Mr. Angelone agreed it would be beneficial not to be locked into the entire 30-day time period if they did not need it.
SENATOR SMITH MOVED TO AMEND AND DO PASS S.B. 515.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS AND SENATOR JACOBSEN WERE ABSENT FOR THE VOTE.)
* * * * *
The chairman opened the hearing on Assembly Bill (A.B.) 175.
ASSEMBLY BILL 175: Prohibits persons from directly or indirectly threatening or intimidating state employees.
The first to testify was Bob Gagnier, Executive Director, State of Nevada Employees Association (SNEA). Mr. Gagnier stated the bill was introduced at the request of SNEA to address problems state employees have encountered more frequently in the past few years. He said the bill would provide "some modest protection" to state employees who are threatened because they are in a position to make a decision, "...and someone wants to influence that decision." Mr. Gagnier indicated they wished to place state employees within existing law, and added appeal referees in the Employment Security Department are covered by the law at this time. He said the law will only apply to "threats and intimidation for the purpose of influencing a decision...." Mr. Gagnier indicated the bill did not apply to acts of rudeness. He said he did not believe you could pass laws "to require members of the public to observe common sense and etiquette." Mr. Gagnier indicated the association is becoming concerned regarding the privacy of employees' home addresses and telephone numbers.
Mr. Gagnier cited several cases of threats against state employees, including an incident which was not taken seriously and later led to the shooting of two employees. He said state employees should not have to worry about their lives or those of their families because they are carrying out the state's business.
Senator James asked if city and county employees are covered by the legislation. Mr. Gagnier indicated he was asked during hearings in the assembly why the bill would only be applicable to state employees. He answered the state employees are the only group he represents but he would have no objection to the addition of local government employees.
The next person to testify was Michael H. Johaneson, Service Employee International Union (SEIU). Mr. Johaneson stated he had earlier requested the substitution of the words "public employee" for "state employee." He said that addition might create a problem when the bill
returned to the assembly for approval of such amendment and indicated he would not want to see the bill defeated at this time.
There was no further testimony, and the chairman closed the hearing on A.B. 175. The hearing was then reopened on S.B. 514.
Mr. Kelly again appeared with Mr. Graham and Vicki Riley, Nevada Trial Lawyers Association (NTLA.) Mr. Kelly stated they had discussed the legislation and had developed an amendment. He referenced line 5 of the bill and suggested the language, "...actual notice of the fact intentionally, knowingly or willfully...." Senator James asked if "knowingly" would take in "recklessness," and Mr. Graham answered it would not. Ms. Riley suggested the deletion of the word "negligently." Mr. Kelly stated he believed such amendments would be broader than including transplants and blood donations in the bill. However, he said, the words "...such as blood donation, tissue transplants, sexual activity or the like" could be added at line 6 after the word "conduct."
Mr. Graham stated he felt the words "any conduct" would be the broadest language which could be used and added he would prefer that to a specific listing. Senator Adler also indicated he would be against a listing of specific acts.
There was continued discussion regarding the situation where one party is HIV positive, the other is not but is aware of the first party's disease, and chooses to engage in sexual activity. Mr. Kelly said he felt the intent of the bill was to also include that situation within the provisions of the bill. Senator James asked if the penalty should be the same in an "agreed" situation. Mr. Kelly answered he did not believe the situation would ever "surface." Mr. Graham stated he was not "confident" a partner could be deemed guilty of the offense if the other partner was aware of the disease and agreed to continue their relationship. Mr. Kelly suggested an exemption in the law for married couples.
Mr. Graham asked, "Does the state have an interest in trying to prevent people from acquiring HIV? Are we going to give statutory consent to a noninfected spouse to agree to become infected?" Senator McGinness stated whether a couple was married or not married "should not have a whole lot to do with it" if one consents to have sexual relations with an infected partner. Mr. Kelly said the real focus of the bill should be on the innocent person who is unaware of the partner's illness. He said he could not imagine the state prosecuting a partner or spouse who is engaging in activity knowingly with a partner who is HIV-positive.
Mr. Graham cited the case of State v. Gordon (citation omitted), which prohibits conviction for uncorroborated testimony of an accomplice, which would be the only evidence available in the situation discussed above. Mr. Graham stated a partner who knew the other had the virus would be "a knowing accomplice."
Senator James stated the bill should protect not just the person who will get the disease but also society, which should be protected from the spread of the disease. The chairman indicated he would need additional time to study the statutes in effect in other states. He stated he would reschedule the bill for hearing at a later date.
Janine Hansen, Nevada Eagle Forum, asked to testify on S.B. 514. Ms. Hansen expressed concerns regarding testing and the possibility persons would avoid being tested if penalties were involved in connection with being responsible for transmitting HIV. She referenced the "reasonable man" theory which states "...he knew or should have known," and suggested language of that type be inserted into the bill. Ms. Hansen reiterated the importance of developing a policy which indicates to the public "...that the state wants to protect the individual as well as society from the costly spread of AIDS." She stated she did not believe there was a system of "contact tracing" which is utilized in other forms of sexually transmitted diseases. Ms. Hansen said the legislature should encourage health officials to pursue contact tracing of HIV.
Dr. Cade returned to the committee to announce that beginning January 1, 1993, the State of Nevada began reporting and contact tracing HIV positive cases.
There was no further testimony on S.B. 514.
Senator James returned to a discussion of A.B. 175. He said the only issue outstanding was the question of whether the bill should be amended to include public employees of cities and counties, as well as the state. The committee members agreed the bill should be so amended.
SENATOR SMITH MOVED TO AMEND AND DO PASS A.B. 175.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
There was no further business to come before the committee and the hearing was adjourned.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
June 7, 1993
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