Legislature(2019 - 2020)GRUENBERG 120
04/25/2019 05:15 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB145 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 145 | TELECONFERENCED | |
HB 145-PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS
5:17:35 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 145, "An Act relating to crime and criminal
procedure; establishing the crime of possession of motor vehicle
theft tools; relating to controlled substances; relating to
credit toward a sentence of imprisonment; relating to
sentencing; relating to registration of sex offenders; relating
to the definition of 'sex offender or child kidnapper'; relating
to operating under the influence; relating to refusal to submit
to a chemical test; relating to the duties of the commissioner
of corrections; relating to the Alaska Criminal Justice
Commission; relating to the duties of the attorney general and
the Department of Law; requiring law enforcement agencies to
test sexual assault examination kits; requiring notification of
completion of testing; relating to reports on untested sexual
assault examination kits; and relating to public disclosure of
information relating to certain minors."
5:18:32 PM
CHAIR CLAMAN noted that, at the previous bill hearing, the
committee raised questions related to indecent pictures and
parental consent. He asked about the statutory history relating
to age of consent. He also asked for the Department of Law's
(DOL) perspective on the matter.
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, confirmed that the sections in HB 145
relating to indecent viewing and production of a picture are
identical to sections found in SB 35, sponsored by [the Senate
Rules Standing Committee on behalf of] Governor Michael J.
Dunleavy. She recalled testifying that the underlying statute
is "quite messy and confusing to practitioners. She said DOL
has recently discovered that the underlying statute is even
messier than anticipated and that some sections appear to
conflict with each other. She noted that some sections of the
statute deal with knowledge and consent - particularly the ages
at which people must give consent - but there is also a
definition of "private exposure" that requires "circumstances in
which [one] would not expect the defendant to be seeing [one's]
body." She said this raises the question of how consent can be
given. She said these issues came to light in the Senate and
that they are being addressed, but DOL does not currently have a
resolution to rectify the potential conflicts. She said she
researched the legislative history and described discussions
therein related to consent. But, she noted, the definition of
"private exposure" appears to override statutory language
relating to consent.
CHAIR CLAMAN asked a question about age of consent. He remarked
that the current age at which one may consent on one's own is 13
and that HB 145 would change it to 16. He asked for information
about the issues that arise "with 13 versus 16."
MS. SCHROEDER said the law currently reads that a person under
the age of 13 needs parental consent, a person between the ages
of 13 and 16 needs both parental consent and his/her own
consent, and a person 16 or older can consent on his/her own.
She said the Senate "found that disturbing" and did not want to
permit a parent to consent to the private exposure of an older
child, so it removed parental consent entirely and made it so a
person under the age of 16 could not consent to having a private
picture taken of themselves. She noted that there has been no
adjustment to the definition of "private exposure" so the
conflict still exists.
5:22:02 PM
REPRESENTATIVE KOPP referenced AS 11.41.455(a), which covers the
crime of unlawful exploitation of a minor. He noted that it
sets "the bright line" at 18 years of age for matters related to
the production of pornographic content or inducement of sex
acts. He added that the provision relating to parental consent
contains language about the guardian knowingly allowing the
exploitation to happen when the child is under 18. He said he
is trying to reconcile the language in that statute and the
language in the statute relating to the indecent viewing or
production of an image. He asked if it is just a matter of
legislative policy.
MS. SCHROEDER said it is, to some degree. She clarified that
"unlawful exploitation" relates to the lewd exhibition of the
child, which means the child is doing something lewd. She said
the indecent viewing or production of a picture statute relates
only to the exposure of the child, so no lewd act is depicted.
Thus, she explained, it is different conduct.
5:24:10 PM
CHAIR CLAMAN noted that there are provisions in HB 145 relating
to third-time drug offenses that were pulled from HB 10. He
said the committee might consider an amendment installing a
lookback period for prior convictions that might bump a third
offense to the felony level. He asked whether DOL has a
perspective on the matter.
MS. SCHROEDER said she and Deputy Attorney General Rob Henderson
decided 10 years would be an appropriate lookback period for
cases in which an offense would trigger a felony. She added
that the lookback period for misdemeanors is 5 years.
CHAIR CLAMAN asked a question about the interplay between state
and federal prosecutors regarding larger quantity drug dealing
investigations.
MS. SCHROEDER said state prosecutors work closely with federal
prosecutors when determining when it is appropriate for a case
to be federally prosecuted. She said the decision to "kick a
case up" to the federal prosecutors is made after weighing the
totality of circumstances, including the quantity of the drugs,
whether the offender has copious weapons and/or cash, and
whether the trafficking occurred across state lines. She
explained that a decision is made regarding which punishment is
most appropriate and that determines who takes the case. She
noted that the federal government has fewer than 15 prosecutors
in Alaska and they operate on limited resources, so that is an
additional factor they consider.
5:26:54 PM
REPRESENTATIVE WOOL raised the topic of sexting. He noted that
sexting would not be directly targeted by the proposed statutory
changes but could be affected by them.
MS. SCHROEDER clarified that DOL does not charge individuals for
sharing photos if they are in a relationship or sexting under
the "indecent viewing" statute. She explained that it is for
situations akin to a person setting up a camera in a bathroom to
capture private exposure without the victim's awareness.
5:28:34 PM
REPRESENTATIVE EASTMAN asked what statute would be used to
address a situation in which a person in a relationship shares
private content to people outside the relationship.
MS. SCHROEDER said various statutes could be used to address
that type of conduct. She said the crime of sending an explicit
image of a minor involves sending or posting a photo of the
genitals, anus, or breast of someone under the age of 16 with
intent to annoy or humiliate. She clarified that to post the
photo on a website would be a class A misdemeanor and to send it
to another person would be a class B misdemeanor. She added
that harassment in the second degree includes a provision
relating to the sending of images.
5:29:46 PM
CHAIR CLAMAN asked for additional information about the proposed
changes to the indecent production of a picture statute as
relates to the age of a victim.
5:30:17 PM
BETH GOLDSTEIN, Interim Public Defender, Alaska Public Defender
Agency, said the agency has reviewed the proposed legislation,
particularly the section raising the age of consent to 16,
thereby doing away with the means of a 13- to 15-year-old to
consent to be photographed or, as is currently written in
statute, even to be viewed in person. She said it appears the
proposed change would cause significant tension with other
existing statutes, specifically the sexual abuse of a minor
statute. She explained that, while consent at the age of 16
comports with the age of consent to engage in sex, the sexual
abuse of a minor statute AS 11.41.436(a)(1) permits
teenagers aged 13, 14, and 15 to engage in sex where the partner
is at least 17 years old and as long as their age difference is
no more than 4 years. She explained that her reading of the
proposed legislation is that, under AS 11.41.436(a)(1), it would
not be illegal for a 17-year-old to have sex with a 15-year-old,
but it would be a violation of the indecent viewing statute for
the 17-year-old to view the private exposure of the genitals,
anus, or female breast of the 15-year-old without the consent of
the 15-year-old's parent or guardian. "They can have sex," she
clarified, "but they can't look at each other."
MS. GOLDSTEIN stated that the current law also requires parental
consent, but the 17-year-old is not at risk because the state of
Alaska (SOA) is not required to prove both the lack of the
parent's consent and the 15-year-old's consent. She clarified
that, as long as the 15-year-old is engaging in a consensual
relationship with the 17-year-old, SOA would not be able to
convict the latter under the current statute. She said this
offers protection to the 17-year-old if the 15-year-old's parent
does not approve of the relationship and seeks prosecution.
But, she said, under the proposed legislation, the 15-year-old's
consent would be irrelevant, thus resulting in the 17-year-old
being guilty of a class C felony. She added that, were the two
teenagers to engage in consensual sexting where the 17-year-old
takes a picture of the 15-year-old's breasts with the 15-year-
old's consent, the 17-year-old would be guilty of a class B
felony. She noted that the 17-year-old in this hypothetical
would be tried in juvenile court, however SOA would have the
option to seek a waiver of the juvenile into adult court. She
explained that, as a juvenile, the 17-year-old would not be
subject to the sentencing statutes regarding sexual assault
sexual felonies. But, she said, an 18-year-old engaging in a
legal relationship with a 15-year-old would not have the benefit
of juvenile court and would be subject to the presumptive terms
of 5 to 15 years in prison for production of a picture and 2 to
12 years in prison for viewing a picture.
5:34:10 PM
MS. GOLDSTEIN noted that the HB 145 sectional analysis document
[included in the committee packet] states that the crime of
indecent viewing or production of a picture where the victim is
16 or younger would be a registerable sex offense. She pointed
out that the bill does not amend the definition of sex offense
so as to subject convicted offenders to a duty to register. She
explained that the duty to register comes from AS 12.63.010.
She said the definition of "sex offender found in AS
12.63.100(6) does not include any aspect of the indecent viewing
statute and HB 145 does not amend the definition to include the
[indisc.] involving minor victims. However, she noted, there is
a potential that a juvenile adjudicated of the offense in
Alaska's juvenile system would nevertheless be required to
register upon moving to another state, such as to attend to
college. She said there are more than 30 states that require
registration for juvenile offenses if an offense similar to
indecent viewing or production of a picture is included within
the [state's] lists of registerable offenses.
5:35:42 PM
REPRESENTATIVE LEDOUX asked for confirmation that, under current
law, the hypothetical juveniles can have sex with each other,
but under the proposed law, it would be a felony for the older
juvenile to take a picture of the younger one.
MS. GOLDSTEIN said the age of consent would be raised to 16 so
it could be a felony unless both the parent and the 15-year-old
are consenting.
REPRESENTATIVE LEDOUX asked if the age of consent would be
raised for sex as well as the pictures.
MS. GOLDSTEIN said it does not appear that the bill would amend
the sexual abuse of a minor statute.
REPRESENTATIVE LEDOUX asked for verification that the juveniles
would not have to ask permission to have sex but would have to
ask permission to take pictures.
MS. GOLDSTEIN clarified that it would not just be for taking
pictures, but even to view body parts.
REPRESENTATIVE LEDOUX said, "That's ridiculous."
5:37:10 PM
REPRESENTATIVE WOOL raised the topic of age of consent. He
asked if a person has to be 16 years old to consent to sex
unless the partner is within three years of age or is under 18.
MS. GOLDSTEIN answered yes. She explained that the sexual abuse
of a minor statute specifically reads that a teenager who is 13,
14, or 15 can engage in sex where the partner is 17 or older as
long as there is no more than 4 years of age difference.
REPRESENTATIVE WOOL established a hypothetical scenario in which
two teenagers ages 17 and 15 are dating. He said the 17-
year-old then turns 18. He asked if the now-18-year-old is now
breaking the law.
MS. GOLDSTEIN said a relationship between an 18-year-old and a
15-year-old is fine. She said it would be a legal relationship
under the sexual abuse of a minor statute as long as there is
not more than four years in age difference and the older partner
is 17-year-old or older.
REPRESENTATIVE WOOL asked if it is correct that they would just
not be able to take a photo of the younger teen and look at it.
MS. GOLDSTEIN said they could not take a picture and, as the
legislation is written, they could not look at each other. She
clarified that the older one could not look at the younger one.
5:40:04 PM
CHAIR CLAMAN opened public testimony on HB 145.
5:40:33 PM
DON HABEGER, Community Coordinator, Juneau Reentry Coalition
(JREC), said the mission of JREC is to promote community safety
by identifying and implementing strategies that increase reentry
success for those returning to the community after release from
incarceration. He said JREC recognizes that "smart justice"
requires a balance of accountability to the community, laws,
rules, and regulations. He added that appropriate enforcement
and sanctions are part of that accountability. He said "smart
justice" also includes appropriate and functioning community
services and treatment options, such as behavioral health,
access to affordable housing, and employment training. He
explained that those services are necessary to aid successful
reentry and sustained recovery. He said HB 145 seems to strike
an appropriate balance by providing enforcement tools while not
undoing rehabilitative gains achieved through changes in
Alaska's criminal laws since 2016. He said JREC is thankful for
attempts to strike that balance. He stated that JREC approves
of HB 145.
5:42:25 PM
NORIA CLARK expressed her frustration that the opportunity for
the public to testify on HB 145 was not well-publicized. She
characterized HB 145 as "a watered-down bill." She noted that
the public has replaced and will continue to replace elected
officials who do not "stand up for us." She criticized Chair
Claman for his role in introducing HB 145.
CHAIR CLAMAN advised Ms. Clark that she may testify on the bill
but may not use this time to criticize legislators. He invited
her to direct criticism to his office.
MS. CLARK said she thinks the bill is "garbage." She stressed
that the First Amendment of the Constitution of the United
States gives her the right to say whatever she wants. She
referenced the arrest of a man earlier in the day after "hurting
other people." She expressed her disapproval of Senate Bill 91
[Passed in the Twenty-Ninth Alaska State Legislature] and her
doubts about HB 145. She stated that this is a terrifying time
in Alaska. She stressed that testimony opportunities should be
better publicized so the public can participate.
5:45:34 PM
KATIE BOTZ relayed that she has testified on a number of crime
bills during the current session. She identified herself as a
victim of sexual abuse and expressed displeasure that HB 145
does not include provisions relating to strangulation and sexual
abuse. She added that HB 145 does not address the issues of
pornography, sexual abuse of a minor, the use of dangerous
instruments, the definition of "sexual contact," longer periods
of incarceration for convicts, sexual contact without consent,
sexual penetration without consent, exploitation of a child, sex
trafficking, prior convictions both in and out of state, the
employment of law enforcement officers, harassment, or
possession of firearms. She said there is nothing in HB 145
that is "victim-oriented" or that supports victims of sexual
abuse. She called HB 145 a good starting point.
5:48:18 PM
BERT HOUGHTALING expressed his displeasure with the timeline of
the bill's introduction and the opportunity for public
testimony. He called the bill flawed. He said the committee
should instead take up HB 49, HB 50, HB 51, and HB 52. He said
those bills would fix Alaska's crime problem. He referenced
data from the Pew Research Center presented to the legislature
in 2014 and called the data "flawed." He referenced a recent
presentation offered to a Senate committee that he said
presented "the actual numbers." He argued that recidivism had
already dropped 32 percent before Senate Bill 91 was passed. He
argued that recidivism has climbed because criminals are being
24 hours after arrest. He said the numbers show that crime is
getting worse. He opined that HB 145 would do nothing to fix
the crime problem.
5:50:25 PM
SALLY JOHNSON called HB 145 "junk" and asked the committee to
consider Governor Dunleavy's crime bills. She said Senate Bill
91 resulted in increased crime rates. She stated that she does
not feel safe in Palmer and that she is not the only person who
feels that way. She called the Matanuska-Susitna Valley,
Anchorage, and Fairbanks dangerous and noted that Alaska is
currently the most dangerous state in the nation. She repeated
that she wants the committee to take up the governor's bills and
fix the problem.
5:51:38 PM
CHAIR CLAMAN closed public testimony. HB 145 was held for
further review.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB145 ver U 4.24.19.PDF |
HJUD 4/24/2019 1:00:00 PM HJUD 4/25/2019 5:15:00 PM HJUD 4/26/2019 1:00:00 PM |
HB 145 |
| HB145 Sponsor Statement ver U 4.24.19.pdf |
HJUD 4/24/2019 1:00:00 PM HJUD 4/25/2019 5:15:00 PM HJUD 4/26/2019 1:00:00 PM |
HB 145 |
| HB145 Sectional Analysis ver U 4.24.19.pdf |
HJUD 4/24/2019 1:00:00 PM HJUD 4/25/2019 5:15:00 PM HJUD 4/26/2019 1:00:00 PM |
HB 145 |