Legislature(1999 - 2000)
04/26/1999 01:55 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 34
"An Act relating to the crime of misprision of a crime
against a child."
REPRESENTATIVE FRED DYSON, SPONSOR explained that the
legislation was the result of a case that occurred in
Nevada. A seven-year-old child was molested and killed in a
casino restroom. A friend of the perpetrator observed the
act. He later gave the perpetrator a ride back to
California. The person observing did not act to assist the
minor during the assault and murder.
Representative Dyson noted that since this crime eight
states have made it a misdemeanor to refuse to go to the aid
to a child who is actively being assaulted. He noted that
laws to assist were very common in American and English
common law over a 130 years ago. The duty to assist did not
survive when states moved to statute law. He noted that
professional mariners are required to go to the aid of a
vessel in need of assistance. Police and military personnel
also have a duty to assist those in distress. The
legislation would make it a class A misdemeanor to refuse to
assist a minor. He observed that it is a positive offense if
a person does not help the child because they are afraid for
their own life or safety. He noted that fiscal notes are
indeterminate because it is unclear how many cases would be
prosecuted. He estimated that there would only be one or two
cases in a decade. He stressed that a culture's values are
reflected in its law. He observed that under current statute
a person could sell tickets to an assault of a child with
impunity.
Representative J. Davies spoke in support of the
legislation. He asked why it is limited to children.
Representative Dyson noted that the Senate version of the
legislation was not restricted to children. He stated that
the concept of the duty to assist is not common to our
statute law. He observed that legislation pertaining to
those viewed as incompetent, such as children under the age
of majority would be easier to defended. He stated that an
argument could be made to extend the law to developmental
disabled or profoundly handicapped adults. He stated that he
would support an expansion of the legislation.
Vice-Chair Bunde clarified that "child" would be defined as
anyone under 18 years of age. He asked how serious crimes
committed by a child would be addressed. Representative
Dyson noted that the bill does not speak to anticipated
crimes. He referenced page 1, line 8:
"Witnesses what the person knows or reasonably should
know is (A) the murder or attempted murder of a child
by another; (B) The kidnapping or attempted kidnapping
of a child by another; (C) The sexual penetration or
attempted sexual penetration by another."
Representative Dyson stated that "a crime is about to
happen" could be added after "reasonably should know".
Co-Chair Therriault stressed that consideration should be
given to the possible fiscal impact.
Representative Grussendorf questioned the effect the
legislation would have on witnesses. He noted that a person
who did not respond during the event could be penalized if
they come forth as a witness after the fact. He expressed
concern a person may view something but not be sure of what
is happening at the time of the event.
Representative Dyson acknowledged the difficulty of knowing
if a child is being kidnapped or is just acting up to their
parents. He noted that the legislation addresses what a
person "knows" or "reasonably should know." He observed
that not being certain of a confusing situation is a
positive defense. He added that exceptions are made for
those fearing injury: "did not report in a timely manner
because the defendant reasonably believed that doing so
would have exposed the defendant or others to a substantial
risk of physical injury." He observed that people are afraid
of involvement in domestic violence cases. He stressed that
prosecutors would grant witnesses immunity from prosecution
in order to allow testimony against perpetrators.
Representative Kohring spoke in support of the legislation
and questioned if the penalty should be a felony instead of
a misdemeanor. Representative Dyson stated that the penalty
was a felony in the original legislation. He explained that
the legislation asks that people assist in instances that
would be class E felonies. He explained that if the penalty
for failing to assist were a felony that the perpetrator and
the person who failed to assist could be charged the same.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW acknowledged
that no one would disagree that people have a moral
obligation to help a child. She stressed that the problem
occurs when it is made a crime. She emphasized that the
legislation pertains to a person that simply witnesses a
crime. She observed that it is already against the law to
help a perpetrator during or after a crime. The legislation
only addresses a person who witnesses an offense. She
acknowledged that the person should go to the aid of the
child. The concern is that if a person witnesses a crime and
does not report it in a timely manner that they would be
lost as a witness. She noted that witnesses would be locked
into their previous testimony, for fear that they will be
charged if they change their story and tell the truth.
Failure to assist was a crime in common law, but fell into
disuse due to problems. She suggested that the legislation
begin with the most serious crimes, murder, kidnapping and
perhaps attempted murder. She stressed that the broader the
bill the greater the problems in relationship to witnesses.
She noted that the difference between felony and misdemeanor
assaults could be subtle. The difference involves the mental
state of the perpetrator in relationship to intent,
recklessness or criminal negligence. She recommended that
felonious assault be deleted and the legislation be limited
to murder, kidnapping and perhaps sexual assault in the
first degree.
Representative Grussendorf observed that the state of
Minnesota has a similar law. He asked if other states have
broader laws. Ms. Carpeneti did not know.
Vice-Chair Bunde questioned if the person that witnessed the
Nevada crime could have been prosecuted in Alaska since he
aided the escape of the perpetrator. Ms. Carpeneti stated
that Alaska law states prohibits a person from aiding and
helping a person escape with intent. She felt that it would
have been possible to investigate the charge if it the crime
had occurred in Alaska. She noted aiding a criminal is a
class A felony in Alaska.
Vice-Chair Bunde asked if Representative Dyson would be
willing to drop the assault charge. Representative Dyson
stated that he would be willing to drop assault if it were
necessary to advance the bill, but that it would not be his
choice.
Ms. Carpeneti explained that a class A felony has a penalty
of one year imprisonment and a $500 thousand dollar fine.
In response to comments by Representative Foster, Ms.
Carpeneti reiterated that the legislation allows an
affirmative defense of fear.
Representative Dyson gave examples of similar legislation
enacted by other states. He noted that Massachusetts has
also included armed robbery.
Representative J. Davies questioned if there would be a way
to further delineate assaults. He observed that "assaults
punishable as a felony" is a high standard. He suggested
that the language could read "an assault such as armed
robbery." Representative Dyson explained that felonious
assaults include a deadly weapon. He noted that the
definition of a deadly weapon is subject to interpretation.
Co-Chair Therriault stressed that the general public would
not know the level of the offense under the law. Ms.
Carpeneti acknowledged that felony is a legal term.
Representative Dyson pointed out that there is no penalty
for reporting lower level assaults.
In response to a question by Vice-Chair Bunde,
Representative Dyson explained that molestation and abuse
were not added in order to clarify the legislation. The
intent is that a child in grave danger receives assistance.
Vice-Chair Bunde stressed that the legislation needs to be
clearly defined.
Representative J. Davies suggested that "punishable as a
felony" be deleted and "an assault that would inflict severe
physical harm" be inserted. Ms. Carpeneti stated that the
language would improve the legislation. She recommended that
the legislation be restricted to murder, kidnapping and
sexual assault in the first degree. She added that assault
in the first degree could be added. She pointed out that
there is no penalty for a person who reports every time they
see a child in need.
Representative J. Davies expressed concern that the use of
"felony" would provide a loophole.
Representative Dyson stressed that the legislation pertains
to children being assaulted by an adult. Co-Chair Therriault
pointed out that the legislation includes children up to the
age of 18. Representative Grussendorf noted that the adult
could be one or two years older than the victim.
Ms. Carpeneti explained that first degree sexual assault is
usually sexual penetration without consent. Ms. Carpeneti
recommended that sexual penetration without consent could be
used to limit the legislation to sexual assault in the first
degree. Representative Grussendorf asked if the age of
consent would affect the legislation. Ms. Carpeneti
clarified that it would not impact the legislation. The main
issue is the consent.
Representative J. Davies asked that the legislation be held
for 24 hours to allow an amendment. Representative Dyson
supported his request.
HB 34 was HELD in Committee for further consideration.
(Tape Change, HFC 99 - 104, Side 1)
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