Legislature(2007 - 2008)BUTROVICH 205
01/24/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB5 | |
| SB19 | |
| SB20 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 5 | TELECONFERENCED | |
| = | SB 19 | ||
| = | SB 20 | ||
SB 5-FAILURE TO REPORT CRIMES
1:34:22 PM
CHAIR HOLLIS FRENCH announced the consideration of SB 5.
SENATOR LESIL McGUIRE, Sponsor of SB 5, thanked Chair French for
the work he had done on the bill, which included discussions
with Kiva's mother. Providing background information, she
explained that in 1999 former Senator Drue Pearce introduced a
bill to require mandatory reporting of violent crimes against
children. Due to controversy at the time, reporting violent
crimes against adults was not included.
In 2005 Senator McGuire requested a summary of what other states
do, and she learned that about 10 states have mandatory
reporting requirements for violent crimes. The descriptions vary
from state to state, but they all stem from heinous crimes that
caused community members to say that they wanted citizens to
have the additional duty to report when they witness violent
crimes.
SB 5 would amend AS 11.56.765 to include adults and children in
every case. It would be a crime for someone to witness and fail
to report: 1) murder or attempted murder, 2) kidnapping or
attempted kidnapping, 3) sexual penetration or attempted sexual
penetration: a) without the consent of the person, b) if the
person is mentally incapable, c) if the person is incapacitated
or, d) if the person is unaware that a sexual act is being
committed.
The current language referencing age is removed, but the
language about reporting in a timely manner is unchanged.
Senator McGuire explained that Section 3 of CSSB 5, Version M
would make it a class C felony for failure to report a violent
crime. [Version M committee substitute was distributed but not
formally adopted.]
SENATOR McGUIRE said she and Chair French discussed an amendment
to make it a felony for an unclassified crime and a misdemeanor
in the other cases. Stating agreement with Kiva's mother she
said that failure to report heinous crimes ought to carry a
penalty that has teeth. It could be argued that if it's not an
unclassified felony, then the serious felony penalty shouldn't
apply. That discussion can come later, she said.
SENATOR McGUIRE mentioned a recent conversation she had with the
Department of Law regarding a citizen's obligation. She noted
that someone made the observation that in 500 years of English
law, there has never been the requirement for citizen bystanders
to report crimes. The consequence of that is that citizens don't
believe it's their job to respond. We accept the privileges of
being a citizen of the United States and a citizen of Alaska and
some obligations come with those privileges, she said. One of
those obligations is to look around and respond if you witness
something as heinous as what happened to Kiva Friedman and if
you don't, that is an affront to our community. Responding to
others when they are in need is the spirit of this bill.
1:40:17 PM
SENATOR GENE THERRIAULT recalled that during the debate on
Senator Pearce's bill there was discussion about a person's
right to not self-incriminate. He asked if she had had
discussions with DOL regarding situations in which a person is a
party to the crime so his or her call to authorities could be
self-incriminating.
SENATOR McGUIRE said the right to not self-incriminate is the
most difficult issue, but DOL also raised the question about
whether reporting a crime opens an argument for immunity. It
will be complex and DOL is looking at ways to improve the bill,
she said.
Other states have said that there might be a defense that says
that if reporting would bring immediate physical harm to you or
your family, then you don't have the obligation to report.
That's a good argument and the only defense she would be
amenable to, she stated.
CHAIR FRENCH noted that a couple of affirmative defenses can
already be found in AS 11.56.765. One defense is that the person
reasonably believed that reporting would risk exposure to
physical injury. For instance, a child might not report one
parent committing domestic violence against the other parent.
Another affirmative defense is if a person acts to stop the
crime then there is no duty to report that he or she witnessed
something. SB 5 would not affect those affirmative defenses.
SENATOR THERRIAULT asked if either touches on the issue of self-
incrimination.
CHAIR FRENCH said his view is that it is a catch 22 that has not
been resolved. It's an issue that would be good to get on the
record because there are classic cases, such as Kiva's, where
the law does apply, but there are some cases where that tool
would not be used.
SENATOR THERRIAULT asked if a person who is a partner to a crime
would have immunity if he or she were to report the incident.
CHAIR FRENCH said ultimately the person who commits the crime
will never be the target of this particular charge.
SENATOR THERRIAULT clarified he was talking about an accomplice.
CHAIR FRENCH responded the same argument would apply. If a
murder is committed in the course of a bank robbery, an
accomplice would be charged with bank robbery, but not failure
to report.
1:45:29 PM
SENATOR WIELECHOWSKI added that a piece of legislation can not
trump the constitution. A person would not lose their Fifth
Amendment rights if this bill were to pass.
SENATOR McGUIRE said it's simply a tool for prosecutors and
sometimes the decision may be against bringing a case.
CHAIR FRENCH agreed.
SENATOR HUGGINS expressed the concern that the bill won't
necessarily make good citizens.
1:47:21 PM
SENATOR McGUIRE said it will send a message and serve as a
method of punishing those who choose to turn a blind eye in
cases that could save a life. The crimes that are included are
narrow and easy to identify. The notion is that if someone is in
a serious physical situation then a witness or bystander should
pick up the phone.
SENATOR WIELECHOWSKI referenced page 2, subparagraph (D)
relating to the assault of a person. He questioned how that
section might apply to a bystander witness who does not stop and
report a drunk driver who has crashed into someone else.
SENATOR McGUIRE replied that isn't the target, but if a
reasonable person sees that a drunk driver caused serious injury
to another person she would hope that person would call for
help.
CHAIR FRENCH added that to be prosecuted the person would need
to know that there had been a car accident and that someone had
sustained serious physical injury. Depending on the
circumstances there could be a righteous prosecution, but the
ultimate check is the discretion of the prosecution and the
jury.
1:50:55 PM
SENATOR THERRIAULT asked if the existing statutory language
regarding reporting in a "timely manner" is a term of art and
what it might allow. He asked if waiting three or four days
before making a report would be timely.
1:52:03 PM
SENATOR McGUIRE said she didn't see that mentioned during the
debate surrounding Senator Pearce's bill and she isn't sure that
phrase was chosen, but waiting three or four days to report rape
and sodomy would certainly not be timely. The word "immediate"
does raise the question of a person's duty. Language that would
improve the bill is welcome, she said.
SENATOR THERRIAULT asked DOL to interpret the phrase.
CHAIR FRENCH asked Ms. Carpeneti to interpret the meaning of
"timely manner" in the context of the statute.
1:53:53 PM
ANNE CARPENETI, Assistant District Attorney, Criminal Division,
Department of Law,(DOL) said it is unusual to see those words in
criminal statute. She did not recall whether or not they were
discussed when the law was originally enacted. The terms aren't
as clear as you would hope if you were prosecuting a criminal
case, she stated.
SENATOR THERRIAULT suggested the committee consider changing the
terms if they are unclear or poorly defined.
MS. CARPENETI said she would like to review the bill history
because she would expect to see the terms in a civil statute
rather than a criminal statute.
SENATOR WIELECHOWSKI asked if there is a more applicable term
from a criminal perspective.
MS. CARPENETI said she would like some time to review the issue
before giving a suggestion.
SENATOR McGUIRE read the following Senate Judiciary minutes from
February 24, 1999:
Senator Ellis asked how the new requirement for
"timely" reporting in the bill would compare with the
previous requirement for immediate reporting. Senator
Donley observed that the requirement for timely
reporting allows for a more flexible application. Ms.
Carpeneti agreed.
SENATOR THERRIAULT suggested that Ms. Carpeneti find out if that
terminology has posed any problem.
MS. CARPENETI responded the term "immediate" is probably even
more problematic. The idea is for a person to call the police as
soon as is safely possible.
SENATOR McGUIRE said the idea is to find a word that reasonably
falls between "immediate" and so much later that the call is not
relevant.
MS. CARPENETI said the terms "timely manner" are current
language and to her knowledge they have not been interpreted in
a court case.
CHAIR FRENCH added that ultimately it would be a prosecutor and
a jury decision as to what would constitute "timely."
MS. CARPENETI mentioned the constitutional responsibility to not
make something vague.
CHAIR FRENCH asked Mr. Svobodny whether the current statute has
been used to prosecute someone for not reporting a crime against
a child.
1:58:28 PM
RICK SVOBODNY, Chief Assistant Attorney General, Criminal
Division, Department of Law, advised that the statue has never
been used.
CHAIR FRENCH hypothetically queried whether charges would have
been brought against the three men in Kiva's case had this bill
been in statute.
MR. SVBODNEY said he was not in a position to answer, but the
prosecutor commented that the three men were cooperative.
Bringing charges under this statute could have resulted in
tactical problems at trial because the men may have claimed
Fifth Amendment privilege and demanded immunity.
MR. SVBODNEY referenced the issue of timeliness and suggested
the committee look at language under the requirement to report
an auto accident. It has language about reporting immediately
and in a manner that is safe for the person who is reporting.
SENATOR THERRIAULT noted that states with similar laws use the
terms "immediately", "reasonably practical", and "reasonably
possible".
CHAIR FRENCH opened public testimony.
2:01:56 PM
LISA SOMMER, victim's mother, told the committee she was
representing her daughter, Kiva Friedman, who was brutally
murdered on April 26, 2003 by Jerry McClain. She related that
three other people, all of whom knew Kiva, could have helped her
or could have reported the crime, but they did nothing.
According to Alaska law they did not commit a crime, but this is
wrong, she asserted. When a person has knowledge that a felony
is being committed he or she should be obliged to report it. She
emphasized that that should be in the bill somehow.
MR. SOMMER read page 2 of the Victim's Impact Statement that
told about her daughter's decision to move to Alaska. Her career
was moving forward, she bought her first house, she made new
friends, and her artistic endeavors were expanding. Tragically,
her daughter's life was cut short by a man who had none of her
qualities.
MS. SOMMER said Jerry McClain murdered her daughter directly,
but the three men who arrived at the crime scene and did nothing
murdered her indirectly. She emphasized that someone who has
knowledge of a felony having to do with torture, abuse, rape or
assault should have the duty to report. The fact that the men
had no such responsibility is criminal in its own right and that
should be changed. Jerry McClain's brother, Jesse, knew Kiva so
this was more than a Good Samaritan civic duty violation; this
was more like the federal misprision of a felony type violation,
she said. She urged the committee to pass the bill to help
protect women and children in particular and to consider using
the words "knowledge of a felony" and "deliberate omission to
report." The fact that the victim is known is important, she
said.
In conclusion she read her poem, Mother's Pledge. A copy may be
found in the bill file.
CHAIR FRENCH thanked Ms. Sommer for her testimony.
2:15:04 PM
KATHY HANSEN, Staff Attorney and Interim Director, Alaska Office
of Victims' Rights, reported that she worked with Ms. Sommer
during the criminal prosecution of Jerry McClain. She explained
that the bill the Alaska Legislature passed in 1999 arose from a
Nevada murder case where a friend of the perpetrator witnessed
the crime and did nothing to report. Kiva Friedman's case is
similar and there is some probability she would still be alive
had any of the witnesses called the police, she said.
Furthermore, her death might not have occurred if this law had
passed in 1999.
MS. HANSEN said it's important that laws reflect a society's
morals and there is no question that what the bystanders did in
Kiva's case was morally wrong. SB 5 would serve an educational
function that could prevent further deaths and help solve
crimes.
Passing SB 5 would provide an effective tool for prosecutors
even if it's used infrequently. It would give prosecutors the
discretion to prosecute offenders like Jerry McClain's friends;
it would provide a fallback for prosecutors when the evidence is
insufficient to prosecute; and it would help prosecutors in
general because witnesses would know that coming forward is
required.
MS. HANSEN said United States vs. Weekly gives insight into the
Fifth Amendment problems. The court held that if the person lies
when giving information, then there is no Fifth Amendment
protection and any information that is given would not be
protected as privileged. She emphasized that it must to be clear
that a defendant does not have an obligation to report if doing
so would violate the privilege against self-incrimination. If
that exception is included then there would be no forced
immunity.
Referencing the obligation to report a car accident, she said
that if the purpose of the law is to educate the public then
attaching a misdemeanor or small fine to not reporting is okay.
MS. HANSEN suggested establishing an exception if the witness
reasonably believes the crime has already been reported or if
they are unable to report due to a duty to another, such as a
small child.
With regard to timeliness she suggested the language include, "a
timely manner concerning the circumstances of the crime." Also,
she suggested including a definition for objectivity to make it
clear that what the prosecutor is proving and what the court or
jury is looking at is that the person knew or should have known
about the timely manner for reporting. Finally, there should be
an objective standard that the defendant knew or should have
known that a violent crime was occurring and that it should be
reported. That would eliminate the question about what the
person subjectively believed.
2:23:04 PM
SENATOR WIELECHOWSKI asked if she had recommended a provision
about excluding self incrimination.
MS. HANSEN said yes, but Patricia Young's 1/17/07 legal opinion
came out subsequent to the pre-filed bill. She suggested the
committee allow the Department of Law time to review the opinion
and consider whether or not a better model might apply.
SENATOR WIELECHOWSKI asked if she had an opinion about whether
prosecutions would be more difficult if the duty to assist was
in statute.
MS. HANSEN replied she believes the model in the packet is
appropriate and she is convinced it's not unusual to have a duty
to assist in appropriate situations. She read from the model:
My interest in testifying is to protect crime victims,
but as a citizen I think there are situations where it
may not be clear that there is a crime but it would be
clear that someone is in need of help.
MS. HANSEN asked the committee to consider changing the statue
to reflect the model language to apply to emergency situations
where an objective and reasonable person would consider that a
victim is in need of assistance to prevent imminent or perceived
imminent danger of physical harm.
SENATOR WIELECHOWSKI commented he could envision situations in
remote locations in particular, where calling might not be
feasible but assisting would be possible.
MS. HANSEN mentioned the example of a disabled car in below zero
temperatures where no one will stop to offer help. She
emphasized that if you see someone in that kind of situation and
you don't have a cell phone to call for help, then you ought to
pull over. Furthermore, there should be a penalty for not
stopping because the consequence of not doing so can be very
serious.
2:26:56 PM
SENATOR HUGGINS mentioned an abusive video clip that was posted
on MySpace and commented that we have a youthful culture that
views that sort of activity as recreational. He questioned the
affect this law would have in that kind of situation.
CHAIR FRENCH said when a scuffle or shoving incident segues into
something more serious, it's appropriate to place a duty to
report on bystanders.
SENATOR HUGGINS mentioned the confrontation at an Anchorage
football field where there was shooting. He didn't know how many
witnesses there were or how many people called the police.
CHAIR FRENCH said he supports an exception to the duty to report
if you reasonably believe the crime has already been reported.
2:30:00 PM
GERAD GODFREY, Chairman, Alaska Violent Crimes Compensation
Board, read a response letter to the editor he wrote several
years ago about the duty to report a violent crime and
specifically the Kiva Friedman murder. He highlighted that
although the crime itself was despicable, the fact that three
other men were aware of the crime and did nothing to help the
suffering woman was comparably depraved. Technically the three
men weren't accomplices, but it's deplorable when citizens could
act and they choose not to. When one enjoys the benefits of
living in a civilized society there is a civic duty to comport
with a minimum standard of decency. Furthermore, this civic duty
ought to be largely non-negotiable. In a free society obligatory
legislation offers a fine line to tread, but for the welfare of
society it warrants treading, he said.
MR. GODFREY related his extensive experience with victims of
violent crime. More often that you'd expect someone was privy to
the violence that was perpetrated yet elected not to intervene
by simply notifying the police. He expressed the opinion that in
civilized society there is no excuse for that. He applauded Ms.
Sommer for sharing her story and perusing this legislation so
there won't be other cases such as Kiva's.
2:33:08 PM
MR. GODFREY referenced the movie "Schindler's List" that
chronicles Oscar Schindler's efforts to save about 1,200 Jewish
people from concentration camps and said what he did was
exceptional. This legislation doesn't ask citizens to do
anything exceptional at all. It would simply require what is
akin to common civic decency.
MR. GODFREY said the bill treads a fine constitutional line in
that it would impart a duty to act when there is no previous
duty. Comparing failure to report a violent crime with the
criminal act of failing to file an income tax form, he said it's
easier to call the authorities than to file a tax return.
However, the morality of the two issues is chasms apart.
Omission to act with regard to filing a tax return doesn't
result in suffering and death, but omission to act in instances
like Kiva Friedman's makes a difference in whether or not a life
is saved.
Kiva died of injuries that could have been treated had the three
men called for assistance when they became privy to what was
happening. However, it's not just Kiva's survival to consider
it's also the reverberating impact to the secondary victims -
husbands, wives, and children - whose lives are destroyed. He
encouraged the committee and the Legislature as a whole to
maintain focus on those victims as well.
2:37:09 PM
CHAIR FRENCH found no questions or further testimony and closed
public testimony on SB 5 He recapped three areas that need
further attention: the timeliness issue, the exception for the
reasonable belief that the crime has already been reported, and
severity - unclassified versus other felony level crimes.
CHAIR FRENCH held SB 5 in committee.
At ease from 2:38:03 PM to 2:45:11 PM
| Document Name | Date/Time | Subjects |
|---|