MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      June 10, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:00 a.m., June 10, 1993, in Room 119 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Robert M. Sader, Chairman

      Mr. Gene T. Porter, Vice Chairman

      Mr. Bernie Anderson

      Mr. John C. Bonaventura

      Mr. John C. Carpenter

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. Ken L. Haller

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Ms. Denice Miller, Research Analyst

 

OTHERS PRESENT:

     

      Mr. Laurance M. Hyde, Jr., Professor Emeritus, the National          Judicial College, University of Nevada

      Dr. Jerry Cade, Co-director, HIV Services,         University Medical Center

      Dr. Lisa Bechtel, Co-director, HIV Services, University            Medical Center

      Dr. Trudy Larson, Pediatric Infectious Disease Specialist                    Ms. Myra A. Sheehan, Attorney

      Mr. Kevin M. Kelly, Nevada Trial Lawyers Association and                                           Nevada Attorneys for Criminal Justice

      Ms. Alicia Smalley, Member of the Board of Directors,           National Association of Social Workers

      Dr. Dean Pierce, President, Nevada Chapter of the National            Association of Social Workers and Director, University          of Nevada Reno School of Social Workers

      Mr. Larry Hyde, American Civil Liberties Union of Nevada

      Ms. Sarah Chvilicek, Nevada Women's Lobby

      Rev. Glenda Cross Dvorak

      Dr. Paul Cameron, Director, Family Research Institute    

      Mr. Joel Hansen, Attorney

      Dr. Matthew Barulich, Obstetrician Gynecologist

      Ms. Ann Dankworth, Citizen

      Reverend Leo Kruger, Valley Christian Fellowship Church

      Mr. William R. Denney, Marriage and Family Therapist

      Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens

     Mr. Bruce Bogaert, Businessman

 

 

After roll call, Chairman Sader opened the hearing on S.B. 466.

 

Chairman Sader informed the Assembly Judiciary Committee the prime sponsor of Senate Bill No. 466 was Senator Lori Lipman Brown who had introduced the bill to the Senate Commerce and Labor Committee.  The bill had been heard before the Senate Judiciary Committee.  S.B. 466 was presented before the Assembly Judiciary Committee for further testimony and committee concurrence.

 

 

 

SENATE BILL NO. 466.          Prohibits certain sexual conduct First Reprint                        in public.

 

 

Chairman Sader opened the hearing for testimony from the proponents of S.B. 466.

 

Mr. Kevin M. Kelly, Attorney, representing the Nevada Trial Lawyers Association as well as the Nevada Attorneys for Criminal Justice, testified in favor of the passage of S.B. 466.  He stated the Nevada Constitution, under Article I, Section 1, indicated all men, by nature, were free and equal and had certain inalienable rights.  According to Mr. Kelly, when this amendment had been adopted and discussed before the legislature in 1863, they alluded to the phrase "all men, by nature, were independent".  At the time, Mr. North, who had been a member of the Constitutional Convention, had declared his intent to amend the locution to include the phrase "all men are by nature equal".

 

Mr. Kelly maintained, in the phrase, "it was to conform to the Declaration of Independence", contained in the Constitutional Convention History published by the Legislative Counsel Bureau, the word "equal" was more accurate and was the equivalent to natural or civil rights.  He claimed men were not independent of each other and all were equal in their rights.  He noted NRS 201.190 became common law in 1911.  In 1914, the Nevada Supreme Court reviewed the infamous crime against nature.

 

Mr. Kelly read a statement made by Justice McCarran, "...it is the contention of the petitioner that the infamous crime against nature is sonomous with sodomy as that crime was known and construed under the common law.  In our judgment, it is scarcely necessary to determine whether or not the term infamous crime against nature is of similar importance or significance to the crime which under the common law was designated sodomy."  Mr. Kelly continued, "Nature has provided in the male and female, the organs for the reproduction of the species.  Any copulation by male, with male, or male with female other than that copulation, by and through the organs provided by nature for the reproduction of the species is an act against the order of nature and hence must of necessity be a crime against nature in as much as it is an act against nature's law." 

 

Mr. Kelly avowed, when the aforementioned law had been enacted in 1911, it pertained to both homosexual and heterosexual persons.  Married couples could not engage in any of the acts specifically prohibited under NRS 201.190, namely fellatio, cunnilingus and anal intercourse.  However, in 1977 the Nevada legislature deleted that portion of the law which pertained to heterosexual behavior and prohibited homosexual behavior. 

 

Mr. Kelly queried if the Nevada Coalition of Concerned Citizens had testified before the Nevada Legislature in 1977.  He asked if the coalition had presented the same comments and arguments as presently attested to.  To make his point, he altered the words contained in a flyer submitted by the coalition and deleted the word "homosexual" and inserted the term "heterosexual".  He deleted the word "AIDS" and inserted the term "sexually transmitted diseases" and read the first paragraph, "The Nevada Senate voted today 14 to 1 to legalize perverting heterosexual sex acts, brushing aside all arguments about the deadly plague of sexually transmitted diseases and even ignoring the legal opinion received from its own staff that the bill also legalized heterosexual prostitution.  Can you envision the type of tourist attraction Nevada will become if this is allowed to stand."

 

Mr. Kelly stressed S.B. 466 addressed the issue of privacy.  He reminded the committee of the debate several weeks ago which pertained to the removal of three judge panels during death hearings at which time the federal court Rule 29A had been discussed.  He recalled Mr. Anderson had made the comment the decision was a jury function.  Mr. Kelly's comment to Mr. Anderson at the time had been, "Mr. Anderson, I hope you recall and keep that same argument when voting on this bill".  His point was Mr. Anderson had been consistent and had voted his conscience. 

 

Mr. Kelly advised S.B. 466 was not an education bill as addressed under the Sexual Education Act, NRS 389.065, which required the counties and districts to decide these concerns.  He stated this was not a brothel bill as alluded to under NRS 244.345 which advised counties as to the licensing brothels.  S.B. 466 was not a public health issue.  He emphasized the bill addressed the right to privacy. 

 

Mr. Kelly went on to state S.B. 466 would not affect the children of the state as there were seven statutes which administered penalties for these crimes ranging from life in prison to gross misdemeanors for sexual assaults committed toward minors, solicitation of minors and indecent or obscene exposure.  S.B. 466 would not affect cases of unconsenting adults which were addressed under sexual assault charges and carried penalties of life in prison. 

 

Ms. Myra A. Sheehan, attorney, avouched her support for the passage of S.B. 466.  She familiarized the committee with the fact, until January 1993, she had owned a law practice limited to the representation of low income, battered women and children.  She had chosen to limit her law practice to domestic law because of her devotion to the laws which affected the families and children of Nevada.  She affirmed she did not represent any identifiable interest groups and chose to testify on behalf of those individuals who were hesitant to appear before the Assembly Judiciary Committee in support of S.B. 466. 

 

Ms. Sheehan circulated copies of written correspondence in support of S.B. 466 from The Honorable Judge Charles McGee and The Honorable Judge Scott Jordan of the Family Division of the Second Judicial District Court, Exhibit C.  According to Ms. Sheehan, both Judge McGee and Judge Jordan had requested the information be read into the record, "Letter to the Assembly on Senate Bill 466 by Charles McGee and Scott Jordan, Judges for the Family Division of the Second Judicial District Court in and for the County of Washoe.  To the Honorable Robert Sader, Chair, Assembly Judiciary Committee.  We support Senate Bill 466 which repeals NRS 201.190.  The current statute makes certain acts "between consenting adults of the same sex" a felony, which in our judgment is both archaic and violative of the equal protection and privacy rights guaranteed by the U. S. Constitution.

 

"As the Supreme Court stated in Thornburgh vs. American College of Obstetricians and Gynecologists, 476 US 747, 90 L Ed 2d 779, 106 S Ct 2169 (1977),  'The concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole'."

 

The correspondence from judges McGee and Jordan went on to read, "The State of Nevada should not legislate what occurs between two consenting adults of the same sex any more than the government has a right to legislate what occurs between two consenting adults of the opposite sex.  To do so would go against a long list of cases recognizing that the constitution embodies the promise of a certain private sphere of individual liberty which we kept largely beyond the reach of government.

 

"The Supreme Court of Wisconsin vs. Yoder, 406 US 205, 32 L Ed 2d 15, 92 S Ct 1526 (1972), upheld the right of the Amish to remove their children from formal schooling because it threatened their way of life.  The court declared 'a way of life that is odd or even erratic but interferes with no rights or interest of others is not to be condemned because it is different'."

 

The judges correspondence stated further, "NRS 205.190 is not only unenforceable, but it is clearly discriminatory.  This state should not punish private behavior because of intolerance or bigotry.  The Supreme Court in Palmore vs. Sidoti, 466 US 429, 80 L ed 2d 421, 104 S Ct 1879 (1984), stated 'The Constitution cannot control such prejudices but neither can it tolerate them.  Private biases may be outside the reach of the law but the law cannot directly or indirectly give them effect'.  The law which is one of selective application must be supported by a neutral and legitimate interest.  It must be something more than a habitual dislike for or ignorance of the disfavored group.  We cannot identify any such interest justifying this law."

Ms. Sheehan concluded reading the letter from the judges,

"NRS 201.190 reaches far beyond what the government has a right to regulate and has invaded the privacy of citizens of this state.  It is time that legislature took steps to abolish the law which is not enforced, is not enforceable and which if it were enforced may very well be unconstitutional.  We support S.B. 466 and believe that NRS 201.190 should be totally repealed.  Please help keep Nevada a safe harbor for individualists.  Respectfully submitted, Judge Charles McGee and Judge Scott Jordan."

 

Ms. Sheehan explained, as a family law practitioner, she had experienced the negative effects of NRS 201.190, the crimes against nature law.  She asserted clients had approached her exhibiting the fear of the loss of their children or loss of the right to have meaningful relationships with their children because spouses had threatened them with the prevailing law.  Many of these citizens had compromised their rights in fear this oppressive law might be used against them during custody or divorce proceedings.  She noted there had been instances where individuals had compromised their rights to freedom of association in order to maintain relationships with their children.  She alleged she had seen the law used to intimidate people into making decisions which might not have been in the best interest of the children.  The prevailing law was used to hurt and humiliate good people.  Ms. Sheehan asserted NRS 201.190 was so oppressive and misused it denied individuals their rightful day in court.  

 

Ms. Sheehan alleged to her belief the opponents to S.B. 466 believed there was a homosexual agenda, or a conspiracy to promote the homosexual lifestyle.  She alleged, homophobia, like racism and sexism, pervaded society.  Her argument centered around the fact homosexuality was not illegal in Nevada nor in any state in the union.  She emphasized NRS 201.190 did not make homosexuality illegal.

 

Ms. Sheehan asserted S.B. 466 would make three acts illegal for homosexuals to commit and underscored the fact homosexuality was not illegal.  A law was in existence which punished individuals who committed unlawful acts against persons as the result of their perceived or actual sexual orientations.  She stressed sexual orientation was protected by law.  Ms. Sheehan claimed NRS 201.190 had addressed the acts of consenting adults of the same sex and was clearly a law which targeted homosexuals.  She contended laws which selectively applied to particular groups of people must be supported by neutral and legitimate interests.  She posed the question, what neutral and legitimate interest was there to legislate against the intimate and private relationship between two consenting adults of the same sex. 

 

Ms. Sheehan pronounced there were amendments attached to S.B. 466 which insulated those legislators who were knowledgeable of the fact NRS 201.190 was an unenforceable and discriminatory law.  She alleged amendments had been proposed to placate the opposition.  The bottom line was S.B. 466 would abolish a law which was not enforced, was unenforceable, and was unconsti-tutional.  It was her belief society had every right to encourage citizens to follow particular traditions in expressing affection for one another in public and there were laws which addressed those issues.

 

As Ms. Sheehan understood, the opposition argued S.B. 466 would permit the instruction of the homosexual lifestyle in schools, it would promote the spread of AIDS and the bill would open the doors for homosexual brothels.  She emphatically declared this was not the intent of S.B. 466.  There were no legally sound arguments to support this and no evidence to prove the hypotheses.  She believed the opposition promoted an agenda of fear, intolerance, misunderstanding and hatred toward a lifestyle which was misunderstood. 

 

Nevada had always respected the rights of individuals and had not allowed other states or individuals to dictate morality.  Ms. Sheehan contended S.B. 466 would accomplish the goals which would make it unlawful to commit certain acts against minors, it would protect prisoners from those activities which could spread the AIDS virus, and the bill would repeal the current law which was neither legally sound nor enforceable.  She encouraged support for the passage of S.B. 466.

 

Dr. Jerry Cade stated he was the co-founder of the University Medical Center AIDS inpatient and outpatient clinics and ward.  He apprised the committee he was also the codirector of HIV Services at the University Medical Center and worked directly with Dr. Lisa Bechtel.  He was also a member of the Governor's Task Force on AIDS and cochairperson on AIDS and AIDS discrimination and worked closely with Dr. Trudy Larson.  He certified his support of the passage of S.B. 466.  Dr. Cade distributed three copies of correspondences to the Assembly Judiciary Committee, Exhibit D. 

 

Dr. Cade read one paragraph from the correspondence initiated by Mr. David E. Rice, Chief Health Officer, District Health Office, Reno, Washoe County and Sparks which read, "I would like to express the support of the Washoe County Health District for the passage of S.B. 466 which would repeal the sodomy law.  The role of the District Health Department is not legislating morality.  Our mission is to promote health and prevent the spread of disease.  The sodomy law is a barrier to those of us who are fighting the spread of AIDS in Nevada." (Exhibit D).

 

Dr. Cade recited a portion of correspondence received from Dr. Otto Ravenholt, Chief Health Officer, Clark County Health District, which read, "I support the passage of S.B. 466, which would amend the sodomy law to forbid sex acts in public but no longer govern acts in private between consenting adults."

(Exhibit D).  Dr. Cade summarized Dr. Ravenholt regarded the current law as a barrier to reporting and tracking the HIV disease in the community. 

 

The third correspondence featured by Dr. Cade had been received from Former Governor Grant Sawyer which read as follows, "I am familiar with S.B. 466.  Please be advised that I fully support the bill as modified.  It appears to me that the facilitation, care and treatment of HIV patients is alone sufficient reason for its passage."

 

Dr. Cade professed for eight years he had the privilege of caring for the men and women in Nevada who had contracted the AIDS virus.  He related his life had been deepened and enriched by his patients' examples of courage, dignity and grace in the face of their mortality and added humanity could learn from the examples set by these individuals.

 

Dr. Cade informed the committee the state of Nevada had one of the highest incidences of AIDS of any state in the nation.  It was important to do everything possible to prevent further spread of this sexually transmitted plague.

 

Several years ago the Governor had appointed a panel of experts to study the AIDS crisis in Nevada and present recommendations in an effort to prevent the spread of the virus.  According to Dr. Cade, he and  Dr. Trudy Larson had cochaired the subcommittee which addressed AIDS discrimination and its impact on the spread of the disease.  He maintained discrimination against individuals with HIV hampered those individuals from being tested and seeking early medical intervention.

 

Dr. Cade reported the AIDS subcommittee had developed an anti-discrimination policy which had concluded with the recommendation Nevada's sodomy statute should be repealed.  According to Dr. Cade, almost every group which testified before the task force cited the current law presented ample reasons for HIV-infected individuals not to test for HIV contraction.  The law also encumbered health care providers in reporting those HIV anti-body positive individuals to the appropriate health care authorities.

 

Dr. Cade recounted the AIDS task force had adopted this policy on a vote of nine to zero without dissention.  The membership of the task force included Dr. Allen Busby from the State Board of Health; Dr. Vicky Carwein, Dean of the College of Health Sciences at the University of Nevada Las Vegas;  Mr. Larry Matheis, Executive Director of the Nevada State Medical Association; Mr. David Parks; Senator John Vergeils; Dr. Patrick Harper, from the dental community; Natalie Silva; and Dr. Otto Ravenholt, Chief Health Officer for the Clark County Health District along with Dr. Larson and Dr. Cade.  He stated those individuals who had been charged with dealing with this crisis and protecting the public health believed the current law stood in the way of good public health policy and medical intervention.

 

Dr. Cade continued by emphasizing AIDS was not just a gay disease.  HIV was a virus which had experienced its genesis by first attacking the gay community in this country.  Worldwide, he asserted, the disease was more prevalent among heterosexuals.  According to Dr. Cade, in this country, the highest percentage of increase in new AIDS cases were among women and children.  He emphasized the crisis could be addressed in Nevada by passing S.B. 466.

 

Dr. Cade concluded his testimony with a quotation from Dr. C. Everett Koop, former Surgeon General of the United States, "At the beginning of the AIDS epidemic many Americans had little sympathy for people with AIDS.  The feeling was that somehow people from certain groups deserved their illness.  Let us put those feelings behind us.  We are fighting a disease, not people.  The country must face this epidemic as a unified society.  We must prevent the spread of AIDS while at the same time preserving our humanity and intimacy.", Exhibit D.

 

Dr. Lisa Bechtel, Codirector for HIV Services, University Medical Center, declared she also represented the Community Health Centers of Southern Nevada as well as the U.S. Public Health Services facility.  She informed the committee she had not only served metropolitan Las Vegas but had worked as a family physician in Lincoln County.  She maintained the passage of S.B. 466 would have a direct affect on health care in Nevada.  Nevadans fiercely believed in their independence and right to privacy.  She asserted, to effectively educate individuals in the activity of safer sex and family reproductive issues, there must be a safe and comfortable environment in which to do so.

 

Dr. Bechtel alleged the same-sex sodomy laws which were currently in existence were not a boon to public health but were direct barriers to the public's best interest as these statutes did not create an environment in which people felt comfortable disclosing their sexual practices.  She supported the passage of S.B. 466 in the belief health care providers would further the efforts to educate individuals.  It would provide an environment where individuals could feel comfortable disclosing their sexual practices and would be better educated in disease prevention. 

 

Dr. Trudy Larson, specialist in pediatric infectious diseases, affirmed her support of S.B. 466.  She apprised the committee members she had been involved in the care of AIDS patients and policy as the result of her activities with the Governor's State Advisory Task Force on AIDS.  She was codirector of the Early Intervention Clinic for HIV Services in Washoe County.  One of the concerns in Washoe County was the fact many individuals would not consent to being tested for HIV infection due to their fear positive test results might be reported in Nevada.  She pointed out, by being HIV positive, it could imply they had engaged in illegal activities.

 

It was Dr. Larson's understanding many Washoe County citizens had traveled to other states to test for HIV infection.  This situation had two major detrimental effects.  Washoe County would not be able to offer HIV-infected individuals direct services which was important because early intervention, medication and follow up treatment might prolong and improve the quality of life.  Secondly, the fact HIV-infected individuals were tested in other states made it difficult to address the issue of HIV transmission in Nevada.  The health care industry was not able to receive reported contacts as an effort to reduce the spread of HIV infection.  According to Dr. Larson, this was a direct result of fear HIV-infected individuals had engaged in illegal activities.

 

Dr. Larson alluded to the fact there would be a financial impact with the passage of S.B. 466.  The majority of the federal funds received in the state were based on the number of reported HIV and AIDS cases.  When individuals tested for HIV infection outside the state, Nevada could not claim the cases for financial reimbursement.  This situation did not assist the state in supporting the AIDS prevention programs. 

 

Dr. Larson informed the committee HIV infection was spread by behaviors and not by people who had sexual preferences.  The major risk of contracting HIV and AIDS was due to multiple sexual partners.  She insisted it did not matter whether these activities involved the same sex or opposite sexual partners.  She noted one of the fastest growing HIV infected groups were women and their children.  Most of the sexually transmitted diseases in the country were spread by heterosexual contacts.  She stressed, in order to address the issue of AIDS in Nevada, the barriers must be reduced.  Her contention was the passage of S.B. 466 would improve the health care industry's ability to disclose and track the disease.  Passage of the bill would increase the competence, maintain confidentiality, and improve services to HIV infected individuals in Nevada. 

 

Reverend Glenda Cross Dvorak, Director, Bridges in Consciousness, testified in favor of S.B. 466.  She stated her ministry supported individuals who dealt with catastrophic illnesses.  She addressed the issue of gay civil rights and quoted Lt. Terry Thorn, "Prejudice can never be validated by majority consent."

 

Ms. Alicia Smalley, social worker and rehabilitation counselor, affirmed her support of S.B. 466.  She alleged she was on the Board of Directors for the National Association of Social Workers (NASW) who were in favor of the passage of S.B. 466, Exhibit E.

 

Dr. Dean Pierce, Director, School of Social Work, University of Nevada Reno, stated he was president-elect of the Nevada Chapter of the National Association of Social Workers.  He testified in support of S.B. 466, Exhibit F.  He asked the Assembly Judiciary Committee members to reexamine the existing Nevada statute which did not grant homosexuals the same measure of privacy as it did heterosexuals. 

 

Dr. Pierce reported, historically, the profession of social work had opposed discrimination against all groups, including homosexuals.  The National Association of Social Workers code of ethics opposed this type of discrimination.  The NASW's code of ethics mandated each social worker to prevent and eliminate discrimination against any person or group on the basis of sexual orientation.  To deliver on this mandate, the professional association had adopted a public policy on lesbian and gay issues.  According to Dr. Pierce, this policy statement indicated NASW would support the repeal of all laws which had been enacted against consensual adult sexual activities. 

 

Dr. Pierced continued, NASW's policy statement and code of ethics recognized that same-sex relations should be afforded the same respect as those of opposite-sex relations.  NASW also affirmed all individuals were entitled to the same rights, including the right to privacy, as long as the rights of others were not infringed upon.  He continued, the resolve of social workers to end such discrimination was strengthened by work done with homosexuals, especially with those individuals who had been harmed by non-acceptance and hatred. 

 

It was of Dr. Pierce's opinion discrimination against individuals or groups was un-American.  To protect such persons from discrimination did not constitute granting special privileges to them.  He advised there was a fear of a homosexual agenda of which a portion of this belief was that special treatment was provided to lesbian and gay individuals.  As a social worker, he was more concerned with the anti-homosexual agenda which he maintained had been designed to reinforce special discriminatory treatment and hatred toward homosexuality.  Dr. Pierce believed the anti-homosexual agenda, if any existed, promoted hatred.  He sought the same treatment for homosexuals as was afforded all Americans.  He believed citizens would not side with hatred but with homosexuality.  The American agenda had always focused on the decent and fair treatment for all and was the basis for the profession of social work.  The proposal would extend fair treatment to homosexuals.  He urged support of S.B. 466 and an end to the discrimination against homosexuals. 

 

Mr. Michael Quackenbush, member, Nevada Chapter of the National Association of Social Workers, supported the passage S.B. 466.

 

Ms. Smalley requested to add further testimony to her position in support of S.B. 466, Exhibit E.  She pronounced human behaviors over the eon had been defined as deviant as exemplified in the act of masturbation, sexual relationships between unmarried people, birth control, etc.  The social definitions of homosexuality had also varied with the passage of time.  She emphasized homosexuality was no longer viewed as a pathological concern by the mental health profession.

 

Ms. Sarah Chvilicek, Chairwoman, Nevada Women's Lobby, Northern Division, spoke in support of S.B. 466, Exhibit G.  According to Ms. Chvilicek, the Nevada Women's Lobby had been established as a grassroots voice for the people of Nevada.  She attested the Nevada Women's Lobby actively supported and lobbied for the rights of all people.  It was her contention NRS 201.195 did not provide equal representation under the law.  According to Ms. Chvilicek, the passage of S.B. 466 would send a clear message that all people would be guaranteed their rights were protected and upheld under the constitution.  She professed the Nevada Women's Lobby did not discuss the question of values or morals on the issue of homosexuality but addressed the question of constitutionality in the present law.  Ms. Chvilicek urged passage of S.B. 466. 

 

Ms. Chvilicek submitted a composite of letters and articles written in support of S.B. 466, Exhibit G.  She expressed her desire to have the list of the names of the submitters to be part of the record: Former Nevada Governor Grant Sawyer, Jean Ford, UNR President Joe Crowley, American Association of University Women, Nevada Women's Political Caucus, Community Counseling Center, Nevadans for Accountable government, UNLV Students for Choice, Planned Parenthood of Northern Nevada, NOW-Southern Nevada Chapter, Aid for AIDS of Nevada, Delta Lambda Phi Fraternity, Alicia Montgomery, Virginia Uribe, Judy Phoenix, Dr. Jerry Cade, Gudrun Fonfa, Raven Fonfa, Lorraine Koblick, Holly Wilson, Myra Foifer.

 

Mr. Larry Hyde represented the American Civil Liberties Union of Nevada who firmly supported passage of S.B. 466.  He stated he was a twenty-eight year member of the Nevada Bar and was professor emeritus at the National Judicial College.  He elucidated S.B. 466 addressed the right to privacy and the private sexual practices of individuals.  According to Mr. Hyde, this was not a special interest bill.  Passage of S.B. 466 would benefit everyone by setting limits on governmental interference in private lives.  He professed he looked to his church for moral and spiritual guidance and not to the Nevada Revised Statutes.

 

At this time, Chairman Sader asked members of the Assembly Judiciary Committee to present their questions to those testifiers who had presented their testimonies. 

 

Mr. Carpenter directed his concern to Ms. Sheehan and addressed her comment which alluded to the fact she believed NRS 201.190 was unconstitutional.  He asked if Ms. Sheehan had considered challenging the current law before the Supreme Court to ascertain its constitutionality.  In reply, Ms. Sheehan noted she practiced domestic law which did not address the criminal aspects of NRS 201.190.  

 

Mr. Kelly interjected and informed Mr. Carpenter there had been a petition where an individual had been charged under the current statute.  The constitutionality of NRS 201.190 had been challenged in the Nevada Supreme Court.  According to Mr. Kelly, the referenced case had been dismissed and the State of Nevada had reduced the charges.  Mr. Sader ascertained there had not been an adjudication of the issue as yet. 

 

Ms. Sheehan added it was difficult to bring forward these types of actions forward as they were often reduced by the courts.  She stated this was not an action where someone had been charged and the charges were later reduced.  She maintained this was the reason the law remained unenforceable. 

 

There being no further questions presented to the proponents of S.B. 466 by the Assembly Judiciary Committee members, Chairman Sader opened the hearing for testimony from the opponents of the bill.

 

Dr. Paul Cameron, Chairman, Family Research Institute, testified in opposition to the passage of S.B. 466.  According to Dr. Cameron, Judge Brandise had addressed the issue of homosexuality during the period of the 1910's through the 1930's.  At that time, every state had an anti-sodomy law.  The popular thought then was heterosexuality was required for procreation. 

 

Homosexuality, according to Dr. Cameron, was worthless from a social standpoint as it did nothing to contribute to the populace.  He alleged, during the 1940's, homosexuality had been debated.  It had been decided it was appropriate to discriminate against homosexuals because the activity had been declared worthless.  During the 1940's, according to Dr. Cameron, the renown researcher, Mr. Kinsey had interviewed homosexuals regarding their behavior which was the basis for the earlier data on homosexuality.  In 1961, Illinois had been the first state to rescind the anti-sodomy law.  The question presented at that time, Dr. Cameron recounted, was should society discriminate against activities which were considered worthless from a social standpoint.

 

Dr. Cameron presented the issue as to whether worthless activities were socially dangerous.  He professed he would present evidence homosexual activities were not only worthless to society but were dangerous and costly to the participants and the populace. 

 

Dr. Cameron displayed copies of the report he published titled The Homosexual Lifespan, Exhibit H.  To emphasize his credibility, he informed the committee members he had been the first scientist to document statistics on the effects of second-hand tobacco smoke and had studied epidemiological concerns for the better part of his career.  To briefly clarify the science of epidemiology, he said researchers studied the relationship between food, exercise or mannerisms and the effects they might have on longevity.

 

According to Dr. Cameron, researchers from the Family Research Institute had complied information from the obituary columns in the "Washington Post" and "Oregonian" newspapers.  In his report, Exhibit H, old age was considered to be over 65 years of age.  The studies revealed married men had a median age at death of 75 years and 80 percent attained old age.  Divorced or males who had never married had a life span of 57 years.  Married women had a median age of 79 years and 85 percent attained old age.  Divorced women had a median life span of 71 years and 60 percent attained old age.  According to Dr. Cameron, these figures paralleled the U.S. Census Bureau data.  He surmised marriage was salutary for individuals' longevity.

 

To determine the longevity of individuals involved in the homosexual lifestyle, Dr. Cameron pronounced researchers from the Family Research Institute had gathered information from obituaries published in homosexual publications over the previous twelve years, Exhibit H.  The research data disclosed homosexual males who died of AIDS had a median age at death of 39 years and 1 percent attained old age.  The reviews of medical literature reported Europe and the United States paralleled this data.  In other words, the obituaries supported information obtained from medical data.

 

Dr. Cameron demonstrated for homosexuals who died of non-AIDS causes, the median age of death was 42 years old.  Of the 140 lesbian deaths sampled, the median age of death was 45 years old.  The results of the data collected revealed married women outlived married men, unmarried or divorced women outlived unmarried or divorced men, and lesbians outlived gays.  Dr. Cameron pointed out the law which alluded to the fact homosexual activities were injurious to those who participated in these activities accorded with the statistics reported on heterosexuality and homosexuality.  Dr. Cameron reported it appeared intravenous drug users and homosexuals had the shortest lifespans.  He pointed out all other epidemiological statistics did not approach the differential in the statistics.  He maintained the present law would be exceptionally useful in guiding individuals away from the homosexual lifestyle. 

 

Dr. Cameron believed individuals who practiced useless social activities often disrupted society.  To support his hypothesis, he presented two brochures.  The first brochure was entitled Child Molestation and Homosexuality, produced by the Family Research Institute, Inc., Dr. Cameron, Chairman, Exhibit H.  This pamphlet outlined the relationship between homosexuality and child molestation.  Dr. Cameron contended it was a fact homosexuality was involved in approximately 15 to 40 percent of all recorded child molestations in the United States.  He maintained homosexuals recruited others to their lifestyle.  He suggested a small minority of approximately 1 to 3 percent of the U.S. adult population accounted for a disproportionate amount of child molestations. 

 

Dr. Cameron focused attention on the brochure entitled Violence and Homosexuality, produced by the Family Research Institute, Inc., Dr. Cameron, Chairman, Exhibit H.  According to Dr. Cameron, the state of Colorado had claimed reporting AIDS cases had no effect on the number or proportion of AIDS cases and had no effect on the prevalence of AIDS in their community.  In other words, Dr. Cameron maintained, there was no evidence S.B. 466 inhibited or decelerated the number of individuals with AIDS.  Secondly, according to the only scientific publication based on random samples of heterosexuals and homosexuals, Dr. Cameron stated one percent of heterosexuals and 5 percent of homosexuals had admitted they had tried to infect others.

 

Dr. Cameron cited Mirko Grmek, History of AIDS (citation entry number 13, Exhibit H, Violence and Homosexuality).  He insisted individuals who deliberately infected others were important components of every sexually-transmitted disease epidemic.  He maintained the data and money spent on educating individuals on sexually transmitted diseases had fallen on deaf ears.  He believed AIDS education did nothing other than fill the pockets of AIDS educators.  It did not appreciably affect the spread of the disease. 

 

Dr. Cameron explained during the 1840's when sodomy laws were being enforced, the amount of promiscuity the researcher Mr. Kinsey recorded among homosexuals was approximately one third of the homosexual promiscuity reported today.  He surmised the more tolerant society was toward homosexuality, the more promiscuous homosexually-inclined individuals became.  Promiscuity was the key factor in driving sexually-transmitted disease epidemics which was true with AIDS.  According to Dr. Cameron, names and addresses of numerous homosexuals who had deliberately infected others was made record.  He urged the committee not pass S.B. 466.

 

Mr. Joel Hansen, attorney for the law firm Edwards, Hale and Hansen Ltd., Las Vegas, NV, declared he had been a member of the Nevada Bar Association for 15 years as well as a member of the Clark County Bar Association.  He was also a member of the Defense Trial Lawyers of Nevada.  He alleged he did not speak on behalf of these organizations although he spoke on behalf of those lawyers who did not recognize Mr. Kelly's testimony.

 

Mr. Hansen stated, in his testimony, Mr. Kelly had claimed he represented the views of the Nevada Trial Lawyers Association.  Mr. Hansen contested this and emphasized many lawyers did not support the position taken by Mr. Kelly.  As a defense trial lawyer, Mr. Hansen did not support Mr. Kelly's position and stated he spoke on behalf of those attorneys who believed decency and not decadence should be the basis for the law. 

 

Mr. Hansen presented copies of the U.S. Supreme Court Reports, 92 L Ed 2d, 478 US 186, Michael J. Bowers, Attorney vs. Michael Hardwich, Case No. 85-140 argued March 31, 1986 and decided June 30, 1986, Exhibit I.  He recapitulated proponents for the passage of S.B. 466 had quoted Justice Brandise and the case Wisconsin vs. Yoder and had maintained the United States Constitution guaranteed the right to privacy.  He contested the opposition.

 

Mr. Hansen requested attention be focused on the highlighted sections of the case Bowers vs. Hardwick, Case No. 85-140, U.S. Supreme Court Reports, Exhibit I, commencing with page 144 (second page).  He recapped this case had involved a homosexual who had been charged with committing sodomy in the state of Georgia.  The footnote read, "The only claim properly before the Court, therefore, is Harwick's challenge to the Georgia statute as applied to consensual homosexual sodomy".  Mr. Hansen alleged the issue here was whether or not it was illegal for states to prevent homosexual sodomy under the United States Constitution. 

Mr. Hansen addressed page 145 (page 3, second column), Exhibit I, which read, "...disagreement with the Court of Appeals and with the respondent that the Courts' prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case."  In other words, according to Mr. Hansen, the lower court had reviewed the privacy cases of the United State Supreme Court and determined it conferred the right of privacy on homosexual acts.  The Supreme Court of the United States had determined the issues pertained to child rearing, education, family relationships, procreation, marriage, etc.

 

Mr. Hansen alluded to Page 146 (page 4), Exhibit I, which read, "Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy."  In other words, the court brushed aside the privacy argument and said no.  According to Mr. Hansen, there was no such right to commit sodomy in private or in public.

 

Mr. Hansen addressed Exhibit I, Page 146 (page 4, second column) noting this was a fundamental right.  The insert read, "implicit in the concept of ordered liberty," or was "deeply rooted in this Nation's history and tradition."  His contention was there was no such thing.  As the U.S. Supreme Court Reports cited, when the Fourteenth Amendment was ratified, all but five of the thirty-seven states had anti-sodomy laws.  Until 1961, as stated later in the case, all the states had laws prohibiting sodomy. 

Mr. Hansen read the entry contained on page 148 (page 6), Exhibit I, which read, "Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." 

 

Mr. Hansen contended the United States Supreme Court cases presented before the Assembly Judiciary Committee by Mr. Kelly and the other two attorneys had been facetious.  He stated the argument homosexuals had a right to privacy protected by the United States Constitution was misleading.  He maintained attorneys should cite controlling law and emphasized the aforementioned attorneys had left out the most important case heard in the United States on this issue.  He alleged the proponents for S.B. 466 failed to present the whole truth. 

 

Referencing earlier testimony, Mr. Hansen insisted a professor of constitutional law had no excuse to present such testimony in support of the bill because the Bowers vs. Harwick case which supported Mr. Hansen's presentation had been easily researched and retrieved.  He referenced Exhibit I, page 149 (page 7), where the U.S. Supreme Court addressed the right of privacy, which read, "otherwise illegal conduct is not always immunized whenever it occurs in the home.  Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home."  According to Mr. Hansen, victimless crimes such as the possession and use of illegal drugs, did not escape the law even when practiced at home.  The Supreme Court did not condone the privacy of sodomy, according to Mr. Hansen.      

 

Mr. Hansen maintained the term "legislating morality" meant individuals could not be forced in becoming moral.  He alleged all laws were based on someone's conception of morality and this was what the U.S. Supreme Court case decided as referenced on page 149 (page 7), Exhibit I, [4] "Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.  This is said to be an inadequate rationale to support the law.  The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.  Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate.  We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis."  

 

Mr. Hansen pointed out the U.S. Supreme Court had decided the rational basis for the law had been based on the fact the majority of the people in the United States believed homosexuality was immoral and improper behavior.  He alluded to the material titled Separate Opinions, page 149 (page 7), Exhibit I, which reported the laws against homosexual sodomy dated back to the Roman Era and had been a consistent part of civilized society since ancient times.

 

Mr. Hansen stated the U.S. Supreme Court had destroyed the argument which supported privacy.  He contended there was no such right.  The case referenced had confirmed there was no constitutional right of privacy to commit sodomy or to be a sodomite.  He maintained there had to be a rational basis for a law to support a constitutional challenge.  He referenced the brochure entitled Medical Consequences of What Homosexuals Do, Exhibit I, produced by Family Research Institute, Inc. by Dr. Paul Cameron, Chairman.  He directed attention to the rational basis for the current law which outlawed sodomy.  In addition to what the U.S. Supreme Court had determined on the matter of irrational basis, he alleged here was a rational basis which proved homosexual activities were high risk behaviors which spread disease to those who engaged in the practice as well as to others. 

 

To further support his testimony, Mr. Hansen used the analogy of the use of intravenous drugs which was done in private and was considered a victimless crime.  He asked if it was appropriate to consider the elimination of drug laws because individuals were afraid to be tested for AIDS as they might be determined to be drug users.  The answer to this query, he stated, was emphatically no.  He maintained the laws were needed to protect society from the spread of disease.  He believed it was the height of hypocrisy for Mr. Kelly to allege people would not come forward and submit to AIDS testing because they were afraid they might be prosecuted.  Mr. Hansen recapped a case in which Mr. Kelly had been an active participant. 

 

In conclusion, Mr. Hansen asserted there was a homosexual agenda and the first item on this agenda was to repeal the sodomy law.  In the states of New Jersey and Hawaii, laws had been passed which prohibited discrimination in hiring and firing employees based on sexual orientation.  He alleged a law had been passed in Hawaii where employers could not publish material which might be determined discriminatory toward homosexuals.  He went on to pronounce homosexuals wanted to make adoption and marriage among homosexuals legal.  Homosexuals wanted a gay curriculum in the schools and legalize multi-partner unions where several individuals would get married.  He maintained homosexuals wanted to legalize pedophilia and require the Boy Scouts of America to accept gays and homosexuals into the organization and admit homosexuals as scout leaders. 

 

Mr. Hansen contended homosexuals wanted their rights but were unwilling to respect the rights of others.  He believed homosexuals wanted to take away the rights of others for their right of association while demanding respectability and legality and force others to accept their pervert practices.  He alleged homosexuals wanted to recruit children into the homosexual lifestyle. 

 

In closing, Mr. Hansen read an insert from the "Gay Revolutionary", written by Michael Swift which had been printed in the Congressional Record, Exhibit I, entitled "Homosexual Activist Outlines Goals of Homosexual Movement", "We shall sodomize your sons, emblems of your feeble masculinity, of your shallow dreams and vulgar lies.  We shall seduce them in your schools, in your dormitories, in your gymnasiums, in your locker rooms, in your sports arenas, in your seminaries, in your youth groups, in your movie theater bathrooms, in your army bunkhouses, in your truck stops, in your all-male clubs, in your houses of Congress, wherever men are with men together.  Your sons shall become our minions and do our bidding.  They will be recast in our image.  They will come to crave and adore us". 

 

Mr. Hansen asked S.B. 466 not be passed.  He claimed the current law was not enforced in such a way as to interfere with private activities, although if passed, S.B. 466 would place a stamp of approval on homosexual activities.  He alleged they would not be able to prevent homosexual bathhouses and homosexual houses of prostitution nor would citizens be able to prevent homosexuals from teaching their curriculum in public schools, etc.

 

Dr. Mathew Barulich, Board Certified Obstetrician/Gynecologist, testified in opposition to the passage of S.B. 446.  He explained he would deliver his testimony based on a scientific and medical perspective.  According to Dr. Barulich, understanding the act of sodomy required knowledge of the anatomy and physiology of the lower digestive and reproductive tracks.  He circulated copies of a handout, Exhibit J, taken from the Ham Textbook of Histology, entitled "The Vagina" and the LIBA Digestive System Netter, entitled "Rectum".

 

Dr. Barulich made reference to the handout titled, "The Vagina", Exhibit J.  He stated the vagina consisted of stratified squamous epithelium which meant there were multiple layers of cells, one on top of another, which served a protective function.  These layers were 20 to 30 cells thick and were similar to the skin and clearly designed for the friction of intercourse.  He explained the body's defense cells were under the multiple layers of cells. 

 

According to Dr. Barulich, the rectum pictured on the subsequent handout titled "Rectum", Exhibit J, did not have multiple layers but only one cell layer of thickness.  These cells were called goblet cells; directly below each of these cells were the bodies' defense cells called macrophages and lymphocytes.  It was important to know macrophages and T-4 lymphocytes were where the HIV and AIDS virus must enter to replicate and infect individuals.  These cells were only one cell away from any object in the rectum.  He expounded and stated any object in the vagina was 20 to 30 cells away from these same cells.

 

Dr. Barulich informed the committee when individuals put a penis, tongue or other object into the lower intestinal tract, they were placing that part of their anatomy in contact with living tissues in a way which did not happen in heterosexual intercourse or by kissing.  According to Dr. Barulich, this meant the AIDS virus was more likely to be transmitted in a single act of anal intercourse versus vaginal intercourse. 

 

Dr. Barulich estimated the risk of contacting AIDS from a single heterosexual encounter was one in 500, as per Jama, 1988.  The risk of homosexual intercourse was twice this, or one in 250, as per Enlancid, 1988.  He quoted the July 1992 publication "Medical Monograph" which read, "Receptive anal intercourse is a very high risk sexual practice for both men and women". 

 

Dr. Barulich asserted homosexuals who participated in sodomy also participated in other high risk behaviors which included the practice of "fisting" which involved the use of a hand or an entire arm inserted in the rectum which caused significant trauma or bleeding in the lower digestive tract.  Defecating on one another spread the germs which were normally found in feces.  "Golden showers" was the practice of urinating on one another.  Dr. Barulich presented an example of abnormal dangerous behavior as experienced by a colleague of his who cared for a patient who reportedly had been on the receiving end of a blood pressure cuff which had been inserted in the rectum wherein it had been blown up until the colon ruptured and had to be surgically repaired.

 

Dr. Barulich went on to report multiple sexual partners increased the risk of transmission of all sexually transmitted diseases.  The researcher Mr. MeKusick had reported in 1985 that 28 percent of homosexuals had committed sodomy with one thousand or more partners and 70 percent of homosexuals had participated in sodomy with 50 or more partners; only 2 percent had monogamous relationships.  Of those 2 percent, 5 percent of them drank urine, 7 percent incorporated "fisting", 33 percent ingested feces, 53 percent swallowed sperm, and 59 percent received sperm up the rectum as per the "American Journal of Public Health", 1985.

 

Dr. Barulich revealed much of the multiple sexual partner behaviors occurred at gay bathhouses.  According to the researcher Mr. Jaffee (1985), male homosexuals were 14 times more prone to have contracted syphilis than heterosexuals, 3 times more apt to have had gonorrhea, 3 times more likely to have gentile warts, 8 times more apt to have hepatitis, 3 times more susceptible to infection from penile contact, and thousands of times more likely to contract the AIDS virus.  Compared to heterosexual females, lesbians were 19 times more likely to have syphilis, 2 times more apt to have had gentile warts, 7 time more likely to have had infection from vaginal contact and 29 more times more apt to have oral infection from vaginal contact.  There was also an increased risk of cervical cancer secondary to warts, hepatitis A and C, chlamydia, herpes and other sexually transmitted diseases.  Other problems included "gay bowel syndrome" and "anal incontinence", which was an inability to hold stool because of trauma to the anus. 

 

Dr. Barulich warned AIDS was becoming the number one health concern in our country.  There had been 45,000 diagnosed cases of AIDS as of 1991.  Many individuals had the virus and were infectious but had no symptoms because the incubation period of the HIV virus was seven to ten years.  According to Dr. Barulich, during that time, patients could potentially transmit the deadly virus with a single sexual contact.  Homosexual or bisexual males made up 55 percent of the reported cases and any HIV positive individual harbored numerous opportunistic infections which could be dangerous to others.

 

Dr. Barulich reported there had been a resurgence of a resistant form of tuberculosis which was carried by HIV positive patients and could become very dangerous to the general population.  He maintained HIV-positive individuals had minimal symptoms due to the immune responses which had decreased.  At the same time these individuals harbored large amounts of infectious organisms which were resistant to normal drugs. 

 

Although it was very important to search for a cure for AIDS, Dr. Barulich noted the spread of this deadly disease could be incredibly minimalized by simply modifying behaviors.  The risk to contract the disease was zero for total, mutually monogamous sexual relationships. This was the only true safe sex.  He asserted where one might state all diseases discussed were not a problem as long as one was having safe sex with a condom was a fallacy as initial studies revealed condoms failed on an average of 15 to 20 percent of the time in preventing pregnancy, which could only happen a few days out of each month.  A July 1992 study proved a 33 percent leakage rate of HIV-sized particles in latex condoms.  In this study, the condoms were placed over penis-sized objects and there was no motion at all.  According to Dr. Barulich, this study was reported in Sexually Transmitted Diseases (July 1992).

 

Dr. Barulich pointed out in the June 1993 edition of the "Journal of American Medical Association," Surgeon General Novello reported a 20 percent failure rate in condoms used to protect sexual partners from contracting HIV.  He added, each HIV infection was synonymous with death as there was no cure for AIDS.  Condoms gave a false sense of security and promoted the continuance of this dangerous behavior.

 

Dr. Barulich asked if the pronouncement of sodomy as a criminal act would decrease AIDS testing in this state.  His answer was no.  He elaborated and noted when patients were asked questions about sexual behavior, it was in the context of learning information for the good of the patients, not to turn them over to the authorities.  Patients were not concerned their physicians would turn them in.  As he understood from speaking with his colleagues in infectious diseases and family practices, non of the physicians had ever reported the criminal behavior.

 

It was Dr. Barulich's contention, when patients had stated they had experienced homosexual contacts, physicians were required to ask them what specific acts they had committed and where those acts were done, i.e. in Nevada or outside the state.  This just was not done.  He alleged, if patients were fearful of the law and tested elsewhere outside the state, it would be expected to see a decrease in the number of tests being conducted.  The Sierra Nevada Lab in Reno had not experienced a decrease in the number of tests conducted but had experienced an increase from 7,200 tests in 1990 to 10,800 in 1991 which was a 51 percent increase.  In 1992 there were 12,000 tests conducted, an 11 percent increase.  In 1993 it was projected  14,400 tests would be administered which was a 20 percent increase, according to Dr. Barulich.

 

The figures could not be explained by population growth.  As per Dr. Barulich, the Nevada Department of Taxation reported Reno and Sparks had a 2.5 percent growth rate in 1991 and 1.32 percent increase in 1992.  If people were afraid to be tested, he surmised, one would expect more patients to be seen for the first time in the latter stages of the diseases when they were presented with opportunistic infections.  This was not the case.  Dr. Barulich stated he had spoken with his infectious disease colleagues in Reno and they asserted they had experienced many first-time presenters with opportunistic infections during the mid 1980's.  These cases were rare now because more people were getting tested. 

 

Dr. Barulich addressed the testimonies which argued there should not be a criminal behavior law if these laws could not be enforced.  He maintained criminal behavior law was needed to discourage sodomy as it was high risk behavior and placed the community at risk.  He contended, if the current law was repealed, the behavior would be condoned and legitimized.

 

Dr. Barulich noted Tahoe and Las Vegas were popular vacation spots for all individuals, including gays.  He speculated when visitors come to these areas they partied and gays participated in sexual encounters.  If the practice of sodomy was made legal in Nevada, he underscored the fact homosexuals would be encouraged to visit the area and party which would spread the sexually transmitted diseases and infections they carried.  He alleged the state would have to take care of those who got sick which would deplete many of the state's health care and financial resources.  The cost of care for each HIV positive patient was estimated to be $200,000.

 

Dr. Barulich pointed out a good example of the consequences when this type of behavior was condoned was experienced in the state of California.  In 1975 the sodomy law had been repealed and was thought to be the forerunner of the bathhouse culture; more than 100 bathhouses had been established.  During the 1980's, A.B. 403 had been passed which protected the privacy of HIV-positive patients who did not experience symptoms.  He inferred this was an example of how AIDS was treated as a civil rights issue rather than a public health issue. 

 

Dr. Barulich professed even non-life-threatening, sexually transmitted diseases were handled in the normal way and entailed testing individuals to determine positivity, and contact-trace to identify and isolate infected individuals.  He testified, in California, the rights of the infected individuals were more important than the rights of those who came into contact with them.  Once doctors became aware of HIV positive individuals, they could not divulge the information to the patients' families nor other doctors or nurses without threat of criminal prosecution.  For years doctors could not tell the patients' lovers or the health department although this had recently been changed.  The new law allowed for opting to report although it did not mandate reporting.  He explained this was a situation where doctors knew individuals were potentially lethal and could not do anything about it.

 

According to Dr. Barulich, this violated the hippocratic oath which stated doctors were to do no harm.  S.B. 466 would allow the health of others to be jeopardized.  The legalization of sodomy would have an extremely negative impact on the health and welfare of the state, he hypothesized.  He emphasized this was clearly a high risk behavior and should not be encouraged.  Dr. Barulich stressed maintaining the current law on sodomy and voting no on S.B. 466 would continue to discourage the high risk behavior and would help protect lives and prevent suffering.  He urged the Assembly Judiciary Committee to vote no on the passage of S.B. 466 for the health of Nevada. 

 

Ms. Ann Dankworth, Registered Nurse and mother of four children, testified in opposition to the passage of S.B. 466.  As an active Parents and Teachers Association member in her local school district, she explained she was grateful for the law.  The school districts had been mandated by the state several session ago to devise an AIDS curriculum wherein they dealt with homosexuality as a high risk behavior.  She asserted there were special interest groups who wanted to teach the homosexual special agenda.  She contended the current law protected the schools because parents could appear before the school board and disallow the teaching of explicit homosexual material.  She asserted children had the right to be protected from special interest groups in the schools.

 

Reverend Leo Kruger, pastor, Valley Christian Fellowship Church, testified in opposition to the passage of S.B. 466.  Using this as an analogy, he explained he had resided in the state of Alaska for many years during the period when the use of marijuana had been legalized.  He maintained there were consequences when certain activities were condoned and practiced openly.  Because the use of marijuana had been legalized, more individuals had been inclined to participate in its use.   Alaska repealed the marijuana law due to the problems this behavior created.  He argued this would be true with S.B. 466 in that condoning sodomy would encourage and promote the practice. 

Reverend Kruger alleged if sodomy was legalized, sodomites would not be chastised for their abuse of young adults or children.  He maintained the issues were not individual rights but what was right.  He quoted biblical scripture from Romans 1:32. 

 

Reverend Kruger alluded to the Time Life article entitled "Patient Zero".  He informed the committee members in 1984 a 32 year old flight attendant named Gayton Dugas of Quebec City, Canada had died of AIDS.  He had acquired the disease through homosexual encounters.  Two years before his death, the National Center for Disease Control in Atlanta, Georgia identified Dugas as the one individual responsible for the epidemic of AIDS in the United States.  As a steward for Air Canada, Dugas had been an ideally mobile character for the transmission of the HIV virus and had bragged of 2,500 sexual conquests, mainly men in California and New York.  When the National Center for Disease Control traced the disease to America, it was found Dugas had been the sexual partner for the first 19 reported AIDS cases in Los Angeles and the first 22 cited cases in New York City, including eight additional cases in other towns.  Warned in 1982 about the threat Dugas' lifestyle imposed on other people, he deliberately continued to spread AIDS until his death.  Innocent individuals suffered because of his irresponsibility.

 

Mr. William R. Denny, Marriage and Family Therapist, testified in opposition to the passage of S.B. 466.  He did not speak from a technical point of view but on behalf of clients and patients he counseled over the years who struggled with addictive and compulsive behaviors which disrupted their lives, health, families, friends and community.

 

Mr. Denny relayed the case of a client of his who was struggling with his homosexuality.  Mr. Denny asked the client what would best be served to present before the Assembly Judiciary Committee in reference to his homosexuality.  The patient requested Mr. Denny express the hatred he had for his homosexuality, that it was not fun nor was it natural.  Mr. Denny expressed the difficulty in hearing the testimonies of young men experiencing the homosexual lifestyle who expressed their true awarenesses of feeling trapped, enslaved, manipulated by older men, the enticements of money, jewelry, automobiles, overtures of love and care.  According to Mr. Denny, his homosexual clients often confessed they were knowledgeable of the fact they had been used.

 

Mr. Denny stated there was help for those individuals who were struggling with lifestyles and behaviors they did not like.  There was help for those individuals who had been entrapped and snared by compulsive and obsessive acts.  He asserted others should not sit in judgment of homosexuals but should offer help and hope.  He had assisted individuals in understanding they did not have to remain trapped in behaviors they did not want to be involved in as there were options.  Mr. Denny encouraged the committee members to assess S.B. 466, not from the standpoint legislation could dictate individuals' behaviors, but from the view this behavior did not have to be condoned.

               

Ms. Lucille Lusk spoke on behalf of the Nevada Coalition of Concerned Citizens and testified in opposition to the passage of S.B. 466.  She alleged the bill had ramifications which reached far beyond the issue of privacy and placed the community at large at risk.  She addressed the proliferation of bathhouses which would denigrate tourism in the state.  She focused attention on the high rates of child sexual molestation despite the existing laws.  She emphasized the passage of this bill would put children at greater risks.  The Nevada Coalition of Concerned Citizens asked the legislators keep a safe harbor for the children.

 

Ms. Lusk questioned who promoted hatred.  She cited the Nevada Coalition of Concerned Citizens had received a number of threatening and obscene phone calls since testimony had been received in the Senate; among the caveats received were threats to wipe out families and friends which in itself was an apparent disregard for the law. 

 

Ms. Lusk noted an additional ramification to the passage of S.B. 466 which would teach homosexuality to students in public schools.  She related the "Project 10 Program" which had almost become part of the educational curriculum in the Washoe County School District in 1990.  She contended there was a law which made the infamous crime against nature a crime and schools did not have the authorization to promote the homosexual lifestyle.  She alleged there were numerous programs which contained material which she described as obscene.  Ms. Lusk pointed out in 1986 the U.S. Supreme Court had ruled sodomy laws were constitutional and the Nevada Supreme Court had also refused to overturn the Nevada Sodomy Law.  She asked the Assembly Judiciary Committee retain the existing laws which made the infamous crime against nature illegal. 

 

Mr. Bruce Bogaert, businessman, addressed the issues of sexual harassment in the workplace.  He accentuated the fact the timing for passage of a bill such as S.B. 466 was atrocious as it would increase cases of sexual harassment in the workplace and would interfere with the functioning of businesses in the state. 

 

As a businessman who dealt with tourism in the state, Mr. Bogaert was concerned with the impact the passage of S.B. 466 would have on the image for Reno and Lake Tahoe which had spent hundreds of millions of dollars on theme resorts and promotions as family destinations.  Competition with other states in the tourism industry was increasing due to 47 other states which had become involved with gaming.  He contended the passage of S.B. 466 would be a great step backward for the state.  Additional copies of correspondences received by the Assembly Judiciary Committee were contained in Exhibit L, available in the research library.

 

Chairman Sader opened the hearing for committee discussion on S.B. 466.  At this time, questions from the Assemblymen would be directed toward opponents of the bill.

 

Mr. Anderson directed his concern toward Dr. Cameron.  Dr. Cameron informed him there were 23 states which made the act of sodomy illegal.  Mr. Anderson understood the penalties for the crime of sodomy in the surrounding states were Utah levied 6 months incarceration, Arizona imposed 30 days, Oregon did not have penalties and Idaho enacted 5 years imprisonment for the crime of sodomy. 

 

In response to Mr. Anderson's concern regarding the obituary studies, Mr. Cameron replied it appeared there was little variance in the statistics between his research and data complied from other methods.  His statistics revealed there were a number of individuals who were both homosexual and illegal drug users and a few had died from drug overdoses.  An exceptionally high rate of heart attacks attended homosexual males possibly due to suspected latent HIV infections.  He implied heart attacks might be related to the use of the rectum for sexual pleasure.

 

Ms. Smith surmised from the testimonies received laws prohibiting sodomy would be deterrents to homosexual relationships which was concurred with by Dr. Cameron although he stated this was to some degree.  There was no data on this particular phenomena.  Ms. Smith noted her experience had been completely contrary to this. 

 

Ms. Smith directed her question to Mr. Hansen and his comment in regard to HIV infected homosexuals who intentionally infected other individuals which was considered a means of murder.  As an analogy, she addressed those individuals who used firearms and intentionally killed others, yet society allowed citizens to keep and bear arms.  According to Ms. Smith, if Mr. Hansen's argument was true, would it not make sense to ban heterosexual relationships as well because heterosexuals could use AIDS as a means of injuring others.

 

Dr. Cameron interjected and referenced the first known AIDS carrier in the United States, "Patient Zero", who was an intentional spreader of the HIV virus.  He alleged compulsive criminals who used guns irresponsibly would be disproportionally more apt to use them wrongly again.  Ms. Smith contended the issues would be those individuals who intentionally spread AIDS and not the homosexuals.  Mr. Hansen interrupted and emphasized heterosexuality had a purpose which was to promulgate the species whereas the homosexual lifestyle had no purpose, therefore, he argued society had a right to ban homosexuality as not only did it not have any purpose but the behavior was dangerous.

 

To discredit Mr. Hansen's statement, Ms. Smith suggested the implementation of laws which prohibited oral sex, anal intercourse and adultery as all of these acts entailed sex without procreation.  She contended, if they were to remain consistent with this belief, perhaps they should be consistent all the way through and not isolate a certain segment of society.  Dr. Cameron responded and claimed the statement made by Ms. Smith was rhetorical.  He emphasized, when laws prohibited sodomy, there were no homosexual bars, baths nor AIDS and the sexually transmitted disease rate was largely manageable.

 

To further promulgate her position, Ms. Smith noted the residents of Nevada did not pay income tax and yet the state accepted money from prostitution, survived off gaming and alcohol.  She maintained perhaps the citizens of the state should reevaluate the structure if they wanted to be truly moral and consistent in the enactment of the laws.  Mr. Hansen added the United States Supreme Court had specifically decided in the sodomy legislation the rights of privacy between men and women were protected.  If such statutes were proposed, as suggested by Ms. Smith, he hypothesized they would be upheld as unconstitutional.  He contended the law did not protect the right of privacy for homosexual activities.  He believed the passage of S.B. 466 was unconstitutional under current case law and strongly supported present law as constitutional and argued there was no reason to change it. 

 

Chairman Sader thanked the audience for their reserve during the Assembly Judiciary Committee members' consideration of testimonies and noted this greatly enhanced the free flow of information.  He apologized for those interested parties who were unable to speak.  Chairman Sader stated the purpose for receiving testimonies was to provide the Assembly Judiciary Committee a representative view from both sides of the issue.  He informed the committee members they were in a position to vote on S.B. 466.  Chairman Sader closed the hearing for public testimony at this time and opened the floor for committee consideration of the bill.

 

For the benefit of the audience, Chairman Sader explained the method of the succeeding procedures.  He informed he would consider amendments and a motion to amend.  The committee would then consider the amendment and vote on the amendment.  He would consider a motion to pass the bill whether amended or not.  If the motion failed, he would consider a motion to kill the bill.  He advised, if there was no percentage in taking a motion one way or another, there would be no advantage to hearing one motion over another.  He directed, if the committee members were cognizant as to how they would vote, they were to make their decisions on each of the actions as they arose.

 

Chairman Sader acknowledged the fact Mr. Scherer wished to discuss proposed amendments to S.B. 466.

 

Mr. Scherer dispensed copies of the proposed amendments to S.B. 466, Exhibit K, to the committee members.  Chairman Sader directed Mr. Scherer to explain the written comments and present his argument in support of passage of S.B. 466 as amended.  For the benefit of those in the audience, Chairman Sader reiterated the committee would make a motion to amend.  If there was a second to the motion, the committee would consider comments on the bill. 

 

Mr. Scherer presented suggested amendments to S.B. 466, Exhibit K.  He stated the first proposed amendment made public sexual activities a felony.  Mr. Scherer believed the prison system should not be populated with non-violent offenders who were not a threat to society.  The proposed amendment would reduce the charges from felonies to gross misdemeanor charges.  He maintained this would save prison space for violent individuals who were a threat to society.

 

Mr. Scherer informed the committee members the second proposed amendment would also amend S.B. 466, Section 1, Exhibit K, and would provide the definition for a "public place or facility".  He suggested inserting additional language to the proposed amendments following the word "charged" contained in paragraph 2 of the proposed amendment, Exhibit K.  Mr. Scherer stated it would be appropriate to add the phrase, "but does not include a place of lodging or other place where there is a reasonable expectation of privacy". 

 

Mr. Scherer stated the third amendment to S.B. 466, Exhibit K, was designed to address the issue as to whether or not the homosexual lifestyle should be taught in public schools.  He maintained, in concept, he supported S.B. 466 and did not believe the government should be involved in private conduct between consenting adults.  He also believed the government should not be dictating what should be taught in public schools.  He informed the committee the suggested amendment was designed to prohibit any teaching, counseling or promotion of the homosexual lifestyle, or what was known as the infamous crime against nature, in public schools without specifically notifying parents of the content of the programs and obtaining written permission for their children to be involved in the program.  For those who did want the homosexual lifestyle to be taught in public schools, there was the right to consent built into the proposed amendment.  For those individuals who do not want this taught, there was the right to object.  The amendment simply required full notification to parents. 

 

Mr. Scherer stated the fourth amendment to S.B. 466, Exhibit K, dealt with the issue of intentionally transmitting the AIDS virus or HIV.  According to Mr. Scherer, this language was taken from the language in S.B. 514 and had been changed.  S.B. 514 previously stated, "...willfully, wantonly or negligently".  He did not feel the intent of the language was to address the negligent conduct so the term "negligently" was deleted and rephrased to state, "...willfully or wantonly engages in conduct". 

 

Mr. Scherer proposed a subsection 2 to S.B. 466, Exhibit K, which he requested an addition to the proposed amendment.  After the word "conduct" he suggested adding the phrase, "and voluntarily participated in the conduct".  He suggested deleting the phrase, "was the spouse of the defendant and" contained on the second line of page 2, Exhibit K. 

 

Mr. Scherer stated the fifth proposed amendment to S.B. 466, Exhibit K, would prohibit counties from licensing houses of prostitution for members of the same sex.  He stated the purpose of this particular amendment was in consideration of the abundant testimony, information and statistics which indicated the greater risk of disease and significantly shorter lifespans for homosexual males.  He noted data had been sparse on conduct between lesbians.  He believed the state had a legitimate interest in the health and safety of the populous, particularly when the state was left accountable for the medical expenses for those who could not afford it. 

 

Mr. Scherer did not wish to address private consensual conduct although he did not want to allow houses of prostitution where there would be significantly increased health risks as per the data provided.  Allowing legal houses of prostitution for same- sex activities would counteract the attempts to portray Nevada as a family vacation state.  He believed the Senate would concur with the proposed amendment and urged support.

 

 

      ASSEMBLYMAN SCHERER MOVED TO AMEND S.B. 466.

 

      ASSEMBLYMAN SCHNEIDER SECONDED THE MOTION.  

 

 

Chairman Sader opened the floor for committee discussion on the motion.  He asked for questions from the Assembly Judiciary Committee members as to what the amendments would do, not arguments for or against the amendment. 

 

Mr. Anderson addressed Section 2 of the proposed amendments, Exhibit K, and the term, "in a public place or facility".  He asked if the amendment addressed restrooms.  Mr. Scherer confirmed the language would entail public restrooms as there was a reasonable expectation of privacy in the stalls.  In the lobby area of public restrooms, he did not believe reasonable expectation applied to this. 

 

Mr. Petrak inquired about the first paragraph of the proposed amendments to S.B. 466, Exhibit K, which referenced the gross misdemeanor charges.  He asked what the penalties for gross misdemeanor charges would be.  In response, Mr. Scherer stated the penalties were usually no more than one year in the county jail rather than the state prison with the outside penalty of six months to a year.  Mr. Porter added the fine would be $2,000. 

 

Mr. Regan queried paragraph three of the proposed amendments to S.B. 466, Exhibit K.  He asked if Mr. Scherer had spoken to any of the school districts relative to the mandate.  Mr. Scherer noted he had not spoken with the school districts about this as the amendments would not require the educational systems to establish any programs.  The proposed amendments were similar to, and to some extent, based upon language already in the statutes which pertained to AIDS and sex education.  The proposed amendments were a little more explicit in terms of the types of notices to be sent.  Notices would be required only if programs were to be established and this would be voluntary.  Mr. Regan added this addressed a negative mandate in the term, "you shall not".  Mr. Scherer confirmed and added the phrase, "you shall not without meeting certain conditions". 

 

Mr. Gibbons asked Mr. Scherer if there was a definition, or change in the definition, of the terms with regard to the act committed between adults and minors.  Mr. Scherer responded there was no change in this area.  Mr. Gibbons asked if the provisions of the proposed amendments to S.B. 466 would treat males differently from females.  Mr. Scherer replied the suggested amendments would not treat males differently than females. 

 

At this time, Chairman Sader opened discussion from committee members on the proposed amendment. 

 

Mr. Bonaventura alleged the constituents in his district were opposed to this legislation and could not understand where passage of S.B. 466 would benefit anyone in Nevada except the minority of homosexuals.  He was concerned with the image Nevada would portray should the proposed legislation pass even with the suggested amendments.  He stated he sincerely hoped the people of Nevada could count on the legislature to vote on behalf of decency.  He applauded those members who had taken a stand for the defeat of the bill as well as those who voted against it. 

 

Mr. Bonaventura stated he assured the committee the majority of Nevadans were against S.B. 466 even as amended.  He said children needed to be protected from being exposed to socially disruptive activities.  He addressed those committee members who were considering voting for passage of the bill and asked if they were representing the people of Nevada or the minority of homosexuals.  He emphasized Nevada did not want this legislation to pass.  He surmised those constituents in their districts were not in favor of the bill.  He reminded the committee members they were elected by the people in their districts and were expected to represent the majority consensus.

 

Mr. Bonaventura continued, if the Assembly Judiciary Committee passed S.B. 466 as amended, the committee members would be voting against the will of the majority of all the individuals who voted them to their positions.  If they voted against the will of the people in their district, they had failed to represent them.  He expressed his desire to make a motion to the main motion to Mr. Scherer's amendment.  He referenced Section 1, second line, and suggested deleting the phrase, "any public place or facility". 

 

Chairman Sader did not accept any additional motions at this time.  He informed the committee they would vote on Mr. Scherer's motion.  Additional motions would be considered following.

 

Mr. Carpenter addressed Section 1 of Mr. Scherer's proposed amendment, Exhibit K.  He asked if this would amend anything except decrease the penalties.  Mr. Scherer noted in Section 1 it decreased the penalty.  The second amendment, number 2, amended Section 1 of S.B. 466 and gave definition to the term, "public place or facility".  He added, in the first part of the amendment, the word "public" was changed to the term, "public place or facility".

 

Mr. Sader spoke against the amendment proposed by Mr. Scherer for two reasons.  He noted there were a number of good concepts in the suggested amendments.  He queried whether S.B. 466 could be amended and concurred in by the Senate.  He had been informed by the Senate if the Assembly Judiciary Committee amended the bill to reduce the criminal penalty in Section 1, the rather tenuous balance of approval in the Senate would fall apart.  In addition, he alleged, amendment 3 reported to tell the school districts how to establish curriculum.  He opposed the legislature directing any school district what the curriculums should be.  School board members were publicly elected and should make those decisions the public placed them in office to do. 

Mr. Scherer contradicted this claim and said there were a number of statutes where the state of Nevada directed school districts on the establishment of curriculum.  The State Board of Education adopted regulations which directed school districts on curriculum.  He believed the issue of state versus local control had been decided. 

 

Mr. Sader agreed with Mr. Scherer and contended the state should not exercise their power but use their discretion by allowing the locally-elected officials to determine policy.

 

Chairman Sader called for a roll call vote on the motion to amend S.B. 466 with Mr. Scherer's amendment.  The motion failed 8 to 6. 

 

      THE MOTION TO AMEND S.B. 466 FAILED.  (ASSEMBLYMEN   ANDERSON, BONAVENTURA, PETRAK, PORTER, REGAN, SMITH, TOOMIN     AND SADER VOTED IN OPPOSITION.  ASSEMBLYMAN HALLER WAS       ABSENT FOR THE VOTE.)

 

Chairman Sader asked for further motions to amend the bill. 

 

Mr. Bonaventura made a motion to amend S.B. 466, Section 1, line 4, to delete the phrase "in public".  He suggested deleting line 6 on page 4 which repealed NRS 201.193. 

 

 

      ASSEMBLYMAN BONAVENTURA MOVED TO AMEND.

 

 

There was no second to the motion.  Chairman Sader declared the motion failed for lack of a second motion.

 

There was no other motion to amend the bill.  Chairman Sader asked for a motion to pass S.B. 466.

 

 

      ASSEMBLYMAN TOOMIN MOVED DO PASS.

 

      ASSEMBLYMAN PORTER SECONDED THE MOTION.

 

 

Chairman Sader opened the floor for discussion on the do pass motion.

 

Mr. Carpenter voiced a number of concerns regarding S.B. 466.  He believed the language was too restrictive in Section 1, which read, "it shall be punished by imprisonment in a state prison for not less than one year or more than six years".  He maintained the term "in public" made it more onerous for married couples.  He was concerned with Section 2 which addressed minors who engaged in these acts as the language was not clear.  He addressed his concern with the passage of the bill and the effect it would have on the prison system.  He asked these activities would be more acceptable in the prison system and stressed the danger of the spread of disease there.  He explained why he would vote against the bill particularly when he was on record as opposing governmental intervention.  Mr. Carpenter believed the amendments amended the section of law which pertained to decency and morals.  He would oppose this legislation.

 

Mr. Collins referenced the comments presented by Mr. Sader that the Senate would not concur with the amendments based on the change of the felony charge to gross misdemeanor charges in Section 1.  Through Chairman Sader, he asked the maker of the motion and the maker of the second to S.B. 466 to withdraw their motions and reconsider the amendment to Section 1 presented by Mr. Scherer which changed the amendment from a gross misdemeanor charge to a felony. 

 

Chairman Sader declared the maker of the motion, Mr. Toomin, would not recede from his motion to do pass S.B. 466. 

 

Mr. Petrak believed S.B. 466, Section 1, lines 4 and 5, sent the message the public wanted additional decency and increased morality by making the penalties more severe. 

 

Mr. Scherer agreed with eliminating government intervention from private lives.  Unfortunately, he would oppose the bill in part due to the failure of the amendment, particularly the third part which would have prohibited the instruction of homosexual lifestyles in the school system.   According to Mr. Scherer, this could interfere with parents' rights to decide what their children were taught in the schools.  Balancing those two rights, he was in favor of keeping this issue out of the schools.   

 

Mr. Bonaventura stated he would vote against the motion.  He stated the motion sickened him.

 

Chairman Sader informed the committee the motion on S.B. 466 was do pass.  He requested a roll call vote.  The motion passed 9 to 5.

 

 

      THE MOTION TO DO PASS S.B. 466 PASSED.  (ASSEMBLYMEN   BONAVENTURA, CARPENTER, COLLINS, SCHERER AND SMITH OPPOSED.    ASSEMBLYMAN HALLER WAS ABSENT.)

 

 

 

 

 

 

 

There being no further business to come before the committee, Chairman Sader closed the hearing on S.B. 466.

 

 

 

      RESPECTFULLY SUBMITTED BY

 

 

 

                              

      Jessie A. Caple         

      Committee Secretary     

 

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Assembly Committee on Judiciary

June 10, 1993

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