Los Angeles Times (LT) - TUESDAY August 1, 1989 Edition: Home Edition Page: 3 Pt. 1 Col. 2 Word Count: 590
Valarie Basheda; Times Staff Writer

Prosecutors appeared to be wrestling with a rare question of a health measure in conflict with state law.

The program got under way as planned despite a state law making it a felony to encourage sex within prisons. The district attorney's office says city-county public health workers who are handing out the condoms could be found criminally liable, but that prosecutors will investigate only if a complaint is made. If a guard, for example, were to make a criminal complaint, the district attorney would determine whether the practice is encouraging sex among inmates, according to Assistant City Atty. Dennis Aftergut.

The county workers distributing the condoms said they are willing to risk arrest. But they defend their actions as legal by stressing that the condoms are being furnished to inmates for education, not for sex. Administrators of the program said that an inmate can obtain a condom only on request during periodic counseling that includes a warning that sex in jail is illegal.

Other supporters of the program concede that sex takes place in jail irrespective of warnings and that inmates should receive condoms to prevent the spread of AIDS.

"We're not naive; we know it goes on here as well as every other jail despite our efforts to prevent it," said Sheriff Michael Hennessey, who approved the program earlier this month. "But at least now it will be safe sex."

The condom distribution program is part of the county's 4-year-old AIDS education project that aims to teach prevention measures to groups, particularly intravenous drug users, at high risk of contracting the deadly disease.

"If we're talking to people about using condoms, then let them practice with them," said Ralle Greenberg, director of the county AIDS education project.

Greenberg and other officials proposed the condom distribution plan two years ago but were stalled by the legal technicalities and charges that condom distribution would encourage sexual activity. "If they want to have sex, they're going to have sex," she said. "Sex is not about condoms."

Indeed, program supporters say its intent overshadows any possible legal or ethical ambiguities. "I plan to take the risk," said city Public Health Commission member Richard Sanchez during a meeting in which the commission unanimously approved the program. "There is a certainty that AIDS will be transmitted if we don't do something," he said.

According to tests conducted on inmates, about 2,000 felons infected with the AIDS virus enter California prisons each year. Findings indicate that 2.55% of the men and 3.1% of the women in state prisons are infected with the human immunodeficiency virus that causes AIDS.

And Greenberg said that number is probably much higher in San Francisco. Although the jail does not keep figures on the number of HIV-infected inmates, Greenberg estimated that the percentage has doubled in four years. The jails hold about 1,900 inmates at a time, with about 60,000 passing through yearly.

Atty. Gen. John K. Van de Kamp has said he will not order a criminal investigation even though it is unclear if the program is legal, press secretary Duane Peterson said. San Francisco County Dist. Atty. Arlo Smith refused to comment on the likelihood that the health educators could be prosecuted, although he urged officials involved with the program to lobby for a change in state law.

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