Legislature(1999 - 2000)
03/16/1999 09:01 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5(JUD)
"An Act relating to the crime of misprision of
felony."
PAT CARTER, aid to Senator Drue Pearce testified. He told
the committee this bill was drafted in response to an
incident in Nevada where a seven-year old girl was raped
and murdered in a casino rest room. A college student
witnessed his friend committing the crime and he walked
away and didn't report it. The witness was not punished
because Nevada didn't have a Good Samaritan.
He explained that a person would commit the crime of
misprision if he or she witnessed a felony committed
against another person and failed to immediately report it.
The bill had gone through thorough discussion and
alteration in the Senate Judiciary Committee. With the
assistance of Senator Dave Donley, several changes were
made. Initially it was too broad in language and was
narrowed to only apply to the witness of the most heinous
crimes, making the failure to do so a Class A misdemeanor.
These would be: murder in the first and second degrees,
kidnapping, arson in the first degree, sexual assault in
the first degree and sexual assault of a child in the first
degree. There was discussion about the word, "immediately"
as applied to the timely reporting requirement. The bill
was amended to read, "in a timely manner." There was also
consideration given to a self-defense clause such as in a
battered wife scenario. Language was inserted in Section B
Paragraph 1 that addressed that situation by giving a
reasonable but affirmative defense if the person reasonably
believed that they would be put as substantial risk of
physical injury by reporting the witness of the crime.
Senator Randy Phillips wanted a reaction from the sponsor
to an idea to delete "in a timely manner" and replaced with
"within 48 hours" on page 1 line 11. He felt the language
was too vague. Pat Carter offered Senator Dave Donley who
participated in the discussion in the Senate Judiciary
Committee. He gave an example of the consideration given
for the case of a rape. There was a possibility of charging
a rape victim for not reporting the rape by placing a time
frame in the bill. There was discussion in the Senate
Judiciary Committee on the placement of this particular
language. Senator Dave Donley agreed that was the most
persuasive example and said there could be others where a
witness remained in the immediate danger of harm from the
perpetrators within the 48-hour period.
Senator Randy Phillips suggested a defense attorney could
argue what the timely manner meant to his or her client.
Pat Carter said that was why it was determined that it was
better to leave it up to the discretion of the judge as it
applied to individual cases. Senator Randy Phillips
questioned whether that was wise. Senator Dave Donley
responded that it would actually the trial of fact and
would also be up to the jury. Since it was a subjective
finding rather than strictly a matter of law, he doubted a
judge would take that away from the jury. He felt there
needed to be some flexibility when seeking to criminalize
this type of action. This bill would criminalize what
would otherwise be innocent behavior. What made a person
culpable would be their failure to report a crime, not the
commission of an actual crime.
Senator Randy Phillips assumed other states had similar
statutes. Pat Carter affirmed that some did. Senator
Randy Phillips asked how they defined this portion relating
to "timely manner". Pat Carter answered that this bill was
drafted in the essence of other states. He did not know of
another state that had an actual time constraint.
Senator Lyda Green if there was a disincentive for someone
who witnessed a heinous crime and without personal
involvement, was scared to report. If they later decided
to report, would they be punished? Pat Carter called it the
guilty conscious factor. He couldn't answer, and said it
would be the discretion of the court.
Senator Loren Leman referred to other statutes regarding
the hindering of prosecution of the second degree and asked
how this bill would interact with that.
Senator Al Adams noted there was a subcommittee that Co-
Chair John Torgerson and Senator Dave Donley served on. He
wanted to know if the subcommittee considered the impact of
the legislation on the Department of Corrections,
Department of Law and other agencies that might be
financially impacted. Co-Chair John Torgerson said each
department submitted indeterminate fiscal notes that
explained their positions that they could not determine
what the fiscal impact would be since there had never been
a similar law for historical reference.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, came to the
table at the request of the committee. Senator Sean Parnell
referred to Section B, page 1 line 12: affirmative defense.
It said it would be a affirmative defense "if the defendant
did not report in a timely manner because the defendant
reasonably believed that doing so would have exposed the
defendant to a substantial risk of physical injury." He
noted this bill applied to two different types of
witnesses, an innocent bystander and a companion of the
perpetrator. He was concerned that the language regarding
the exposure of the defendant to physical injury could be
used as a defense. If a perpetrator was harming a victim,
he or she could just as easily harm the witness. That
would be Senator Sean Parnell's defense if he were in that
situation. He wanted to understand if the affirmative
defense would gut the statute or if it had limits.
Anne Carpeneti attempted to explain saying the defense was
suggested by Senator Rick Halford who was concerned about
cases like one in New York were a mother and small boy were
killed before they could testify to witnessing a serious
crime. Senator Rick Halford didn't want to require people
in that position to expose themselves to harm if they were
innocent of any wrongdoing. It was an affirmative defense
so that a person raising it would have to prove by a
preponderance of evidence that he or she had a reasonable
belief that reporting it would subject him or her to
substantial physical injury.
Senator Sean Parnell asked if prosecutors could use this as
leverage for dealing with accomplices. Anne hadn't thought
about it but knew that in order to prove accomplice by
ability there had to be guilty intent. Senator Sean Parnell
pointed out that would not be required under this bill.
Senator Loren Leman understood that there was an
interaction with Section 780. He felt it was reasonable
clear to him. Anne Carpeneti said that to prove the crime
of hindering prosecution in the first or second degree
there had to be some intent to hide or help the
perpetrator. Her understanding of the misprision statute
was that the witness just had to be at the crime fail to
report it. It was not something that was criminalized in
the past so this would be a new step.
Senator Al Adams asked how the statute would define
"witness". Anne Carpeneti replied that was a good question
and that it should be defined. The best approach in her
opinion, would have the definition as being present when
the offence occurred where perhaps there would be the right
to make a citizens arrest of the perpetrator. She also
suggested the definition include seeing, hearing or
otherwise be in the proximity where it would be happening
in the witness' presence.
Senator Al Adams asked where was the responsibility to
assist and protect the person being harmed rather than just
reporting it. He argued that if someone saw a rape being
committed that person should go try to stop it. "Was this
addressed elsewhere?" he wanted to know. Anne Carpeneti
answered no, that there was no duty to prevent a crime that
the witness did not participate in. Senator Al Adams
wanted to know if other states had statutes stipulating a
duty to assist if a person witnessed a crime in progress.
Anne Carpeneti was unaware of any but offered to research
the issue. She explained that misprision was an old
fashioned legal term that had its roots in England but was
never really adopted in the United States. She felt the
intent of this legislation was just failure to report a
crime.
Co-Chair John Torgerson asked if the department supported
the bill. Anne Carpeneti was grateful for the assistance
they received from the sponsor. She felt that the
legislation was good for very serious crimes such as
murder, kidnapping and arson.
Recess (approximately one minute).
However, Anne Carpeneti had some reservations about the
inclusion of sexual assault or sexual abuse. If a parent
learned of abuse of their child, and chose to take other
action rather than reporting the abuse to the authorities,
she felt the parent should not be charged with a crime if
that parent believed he or she was acting in the best
interest of the child.
Senator Dave Donley said Senator Loren Leman had asked him
a question about the consistency of the punishments set out
in the bill. Senator Dave Donley expressed to him that a
lot of progress was made in the Senate Judiciary Committee
to address the specific concern of hindering prosecution
punishments. The crime of hindering prosecution in the
second degree was listed as a Class B Misdemeanor, while
the crime of misprision under this bill would be a Class A
Misdemeanor. Senator Dave Donley explained that the
hindering prosecution in the second-degree charge was
applied to incidences where a misdemeanor crime was
committed, the crime of misprision would only be applied to
cases where a serious, unclassified felony was committed
and witnessed. He wondered if the Department of Law wanted
to comment on the relationship to the penalties for
hindering prosecution.
Anne Carpeneti responded that the department had suggested
that the provision in the original bill for the punishment
of a Class C Felony did not fit with the scheme of the
other statutes. Hindering prosecution in the first degree,
which meant aiding or abetting in some way a felony was
more serious conduct than simply witnessing and not
reporting a crime.
Senator Loren Leman offered a motion to move CS SS SB 5
(JUD) from committee with accompanying indeterminate fiscal
notes. Without objection, it was so ordered.
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