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SB 65 Opens Discussion with SD Legislators

Wednesday, 20 February 2008 10:03

Equality SD engaged in discussion with legislators on Senate Bill 65. SB 65 would add an additional penalty to the existing crime of intentionally exposing someone to HIV/AIDS by requiring the offender to register as a sex offender.

While the board of Equality SD did not take a stand to oppose SB 65, it believed there were serious questions and concerns that the legislators needed to consider before voting on SB 65. These concerns were presented as testimony by EqSD board secretary David Fischer of Aberdeen before the Senate Judiciary Committee when the committee conducted a public hearing on SB 65 on January 23.

Several EqSD board members had individual conversations with their legislators and/or the bill's sponsors. The legislators ensured EqSD board members that SB 65 was not targeted towards the GLBT community. In fact the very few cases in South Dakota of someone intentionally infecting another with HIV involved heterosexuals. SB 65 was intended to add another deterrent to this activity.

Through Fischer's testimony and positive individual conversations, the legislators now realize there is an advocacy organization for LGBT issues. Several legislators expressed interest in working with EqSD on future issues that would impact our community. SB 65 passed the Senate by 34-0 and the House by 70-0. No doubt the Governor will sign this into law.

Testimony presented on SB 65

Greetings Chairman Abdallah and distinguished members of the Senate Judiciary Committee, my name is David Fischer. I was born in Eureka, have made my home in South Dakota for many years, now live in Aberdeen where I work at Avera St. Lukes Hospital as a Nurse Anesthetist. I have a daughter who also lives in Aberdeen.

I come before you today representing a new organization on whose board of directors I serve as secretary and today I serve as its registered lobbyist. Equality South Dakota is a bipartisan, statewide advocacy group dedicated to achieving fairness and equality for everyone in our state. Our mission is to secure and protect the rights and well being of lesbian, gay, bisexual and transgender (LGBT) South Dakotans and their families. Our vision is of a South Dakota where LGBT people have equal rights and can live safely, honestly and openly at work, at home, in church and in the community. Our supporters are as diverse as the general population—young, old, rich, poor, gay, straight, bipartisan, nonpartisan and of all faith backgrounds and colors.

We join together to promote fairness through education, lobbying and full participation in the democratic process. One thing that unites us as a state is the belief that everyone should be treated equally and all families deserve both respect and support. Equality South Dakota wants to find common ground with you and other South Dakota public servants, so that we can work together to build a better state. We hope you will use us as a resource on LGBT issues.

It is in this spirit that we offer testimony today.

When SB 65 came to our attention, we were keenly interested in understanding it. This is because we are one of several communities with special concern about HIV. We’ve studied and debated this particular measure seeking to understand the approach, the potential consequences and perhaps the unintended consequences. While we have not drawn any definitive conclusions, we do have questions, observations and concerns we wanted to share with you as you deliberate today. Please know that we do not question the motives of sponsors and agree with their fundamental premise: malicious intent to transmit HIV virus is without defense! Our interest is the same as yours, to do what is best for the all citizens of our State.

The following are some questions/issues to consider:

Is there data to suggest that our current law is not serving us well and must be amended? Is it not the case that a judge can already add someone to the sex offender registry, if appropriate, as part of the sentencing process? We wonder, must the law be modified if this outcome is already possible?

The sexual offender registry exists in America not as punishment but because law enforcement and psychologists have learned that certain perpetrators of violent sex crimes, especially pedophiles, are at great risk of committing these crimes again. SB 65 would make a blanket assignment of all "willful exposure" offenders to the sex offender registry. We believe this is a bad precedent, because it dilutes the offender registry's effectiveness in enhancing the public safety. We would rather have a judge make a sex offender determination in "willful exposure" sentencing on a case-by-case basis.

This measure reintroduces some concerns of unintended consequences that surfaced when the original law (22-18-31) was passed in 2000. Adding the required sex offender registration as an additional "penalty" could exacerbate these concerns.

For example:

1. Why is the HIV virus being singled out here for special penalties? There are other debilitating, sometimes fatal diseases (for example Hepatitis C, syphilis and gonorrhea) that could be transmitted under the definition of "willful exposure".
2. Some believe that this law, in combination with the HIV test reporting requirements in South Dakota, may be causing a drop in voluntary testing that leads to greater public danger. Here’s how it might work. People at risk for HIV may be discouraged from being tested due to a fear that they could be falsely charged and convicted of intentional exposure.
   • This may seem irrational but consider for a moment how years of stigmatization and discrimination can erode one’s belief that justice will always be served. Responsible, well-intentioned LGBT people who have been the subject of open hatred may worry that it could happen to them. Imagine a scenario where a relationship goes sour and one partner claims not to have known about the HIV status of the other partner when in fact full disclosure was made. Imagine a prosecutor harboring his own negative feelings about what he would call "the gay lifestyle" and allow that to color his decision about filing charges.
   • Although these situations may seem far-fetched, there are those who, through their personal experience, feel safer if they do not know their HIV status. Of course, we know that “not getting tested” is self-destructive behavior, but under certain circumstances, it happens out of a self-protective impulse. We have anecdotal evidence of this. While it is hard to know just how widespread “non testing” is, as a heath care provider I firmly believe non testing is bad for South Dakota. Non testing allows the virus to go undetected and the infection to spread indiscriminately.
3. There is also a concern that the reported number of HIV cases in South Dakota may be artificially lowered due to people either not getting tested, not reporting, or getting tested in adjacent states where reporting requirements are different than in South Dakota. When this occurs, under-reporting in turn causes reduction in vitally needed Federal funds for prevention and education in our state.

As I mentioned earlier, Equality South Dakota would like to make ourselves available to legislators as a resource on LGBT issues. Please visit our website at www.eqsd.org. On behalf of Equality South Dakota I would like to thank each of you for your time.

Respectfully submitted,

David D. Fischer

See EqSD blog for more on SB 65

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