Legislature(2013 - 2014)BELTZ 105 (TSBldg)
03/03/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB108 | |
| SB128 | |
| SB176 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 128 | TELECONFERENCED | |
| *+ | SB 176 | TELECONFERENCED | |
| += | SB 171 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 108 | ||
SB 128-ELECTRONIC BULLYING
1:48:56 PM
CHAIR COGHILL announced that the next order of business would be
SB 128."An Act relating to the crime of harassment."
SENATOR MCGUIRE moved to adopt the CS for SB 128, labeled 28-
LS1001\Y, as the working document.
CHAIR COGHILL objected.
1:50:12 PM
EDRA MORLEDGE, Staff, Senator Kevin Meyer, Alaska State
Legislature, Juneau, Alaska, presented changes in Version Y of
SB 128 on behalf of the sponsor. She described changes to the
bill since the last hearing on February 19 to ensure clarity and
to prevent overlapping of statutes. There are three
circumstances that would cause electronic harassment to become a
crime: it causes severe mental or emotional injury, it places a
person in fear of significant damage to the person's property,
or it places a person in reasonable fear of physical injury. She
said the sponsor has worked with the Department of Law, the
Public Defender's Office, and Legal Services to develop the
latest version of the bill. The sponsor believes it accomplishes
some of the issues raised at the first meeting.
CHAIR COGHILL summarized the changes. He inquired if there were
other changes.
MS. MORLEDGE noted that the quantifying language "reasonable
fear" and "significant damage" was added because the original
version was quite broad.
CHAIR COGHILL questioned why it said "fear of significant
damage."
MS. MORLEDGE explained that the Department of Law brought it to
the sponsor's attention that there are overlapping property
crime statutes that carry different penalties and this provision
contains a class B misdemeanor penalty.
CHAIR COGHILL asked if it stays within the class B misdemeanor
category.
MS. MORLEDGE said yes.
1:53:41 PM
SENATOR DYSON said he is troubled by the inherent subjectivity
of the damage to the victim.
CHAIR COGHILL suggested Legislative Legal could address that
issue.
SENATOR DYSON asked if age and disabilities were considered when
drafting the bill.
SENATOR MEYER replied they were part of the discussion. He
pointed out that cyberbullying impacts children of all ages and
capabilities. The bill focuses on children under 18. Research
shows an increase in youth suicide as a result of cyberbullying.
He thought people with intellectual disabilities had additional
protections.
MS. MORELY added that the sponsor felt it was a policy call as
to which groups to include. The intention of the bill is to
protect school-age children because of the amount of bullying
that already occurs. This would add cyberbullying to that
category. She noted the sponsor is amenable to adding other
groups.
SENATOR DYSON agreed the issue might already be addressed
elsewhere.
SENATOR MCGUIRE questioned the "mental intent" on page 1. She
noted that the guiding statute is already there under AS
11.61.120 and says they commit the crime of harassment with the
intent to harass or annoy another person. She asked if it was
"intentional and not reckless."
MS. MORELY said it is intentional.
SENATOR MCGUIRE stated kids are often reckless.
1:57:56 PM
SENATOR MCGUIRE inquired about the standard on page 2, lines 4-
6, when looking at the person receiving the communication. She
wondered if the standard was "a reasonable person similarly
situated." She questioned if the test is how someone of a
similar age would feel if they were teased, taunted, or
insulted.
MS. MORELY said that is the intent.
SENATOR MCGUIRE asked for a legal interpretation of whether
mental intent is "intentional, not reckless," and that the
standard by which the victim is judging is a "reasonable person
similarly situated." She also questioned, on line 10, what
"significant damage" and "person's property" mean.
MS. MORELY relayed that in the first version of the bill, the
language read "damage to the person's property." After working
with the Department of Law, Legal Services, and the Office of
the Public Defender, it was agreed that placing "significant" in
the language would raise the bar high enough.
SENATOR MCGUIRE thought it was important to have a legal opinion
on the record.
2:00:27 PM
SENATOR MEYER suggested the Department of Law answer. He pointed
out that a lot of the issues are addressed in the anti-bullying
and harassment bills. This bill now includes cyberbullying.
SENATOR MCGUIRE agreed. She maintained with electronic
communication there is more room to accidentally hurt someone.
SENATOR WIELECHOWSKI asked if there is a difference between
cyber, written, and spoken bullying and requested a comment
about the policy call.
SENATOR MEYER gave examples of social media sites that could be
broadcast worldwide, creating a much more detrimental result
than spoken bullying.
CHAIR COGHILL noted on page 1, the provocation could be written
or verbal. He asked how physical contact comes into play.
2:03:40 PM
SENATOR WIELECHOWSKI thought the bill created two different
standards. He posed an example if someone would insult another
person resulting in an immediate violent response, then it would
be covered under AS 11.61.120(a)(1). But if the person just
causes emotional injury, it would not be a crime. On the other
hand, if the insult was via an email, it would be a crime.
He asked if sending an electronic communication applies to
Facebook and Twitter, or if the post or message must be sent
directly to the person.
MS. MORELY related that Legislative Legal Services agreed that
the posting to Facebook or to a blog is "sending" so the message
does not have to be sent directly to a person.
2:05:26 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Services,
Legislative Affairs Agency, Juneau, Alaska, stated that "send to
a person" is sufficient to cover posting on a social media site
where others might see it.
SENATOR WIELECHOWSKI asked whether posting something insulting
and intimidating on one's own Facebook page would be violating
the law.
MS. STRASBAUGH said it depends on the public nature of the site.
She gave an example of a small group of high school students who
know that all a person's friends will see the post; there would
be a problem.
SENATOR WIELECHOWSKI gave an example of someone who sends an
email to a friend who forwards it on to someone under 18 who is
insulted by the email.
MS. STRASBAUGH said it depends on the intention of the sender.
SENATOR WIELECHOWSKI inquired if there are any equal protection
issues or other issues regarding treating electronic
communications differently than letters or in-person
communications.
MS. STRASBAUGH opined that the communications are all of a
certain type, insulting and provocative in a manner extreme
enough to be criminalized. The consequence would be a
misdemeanor with a maximum penalty of 90 days and a fine. There
are a number of different offenses under that statute at the
same penalty level that have similar components, such as direct
contact and anonymous obscene phone calls. The legislature can
make a policy determination that those communications are
equivalent for the purposes of the statute.
2:08:38 PM
SENATOR WIELECHOWSKI recalled that the U.S. Supreme Court has
allowed heinous communications to be considered free speech. He
inquired if the Court might find that the bill oversteps First
Amendment rights.
MS. STRASBAUGH said if intent is to harass or annoy, it would
depend on who the person is and what the circumstances are. The
court seems to make its decision on a case-by-case basis.
SENATOR WIELECHOWSKI gave an example of an email saying someone
was a terrible football player and it causing emotional injury.
He wondered how the court would look at that.
MS. STRASBAUGH said she didn't know.
SENATOR WIELECHOWSKI asked about significant damage to property
and used a pencil as an example.
MS. STRASBAUGH noted duplication in the Y version. On page 7,
"causes fear of significant damage to a person's property" can
be stricken because it is contained elsewhere in the bill. She
deferred to the sponsor to explain the intention with respect to
property.
CHAIR COGHILL suggested hearing from the Department of Law.
2:12:43 PM
ANNE CARPENETTI, Assistant Attorney General, Criminal Division,
Legislative Services Section, Department of Law, Juneau, Alaska,
pointed out that in the Y version, under 18 years of age only
pertains to conduct that causes severe mental or emotional
injury, not significant damage to a person's property. She
thanked the sponsor for including fear of damage to property.
She gave a hypothetical example of how electronic communication
might cause fear of damage to property. She said the
department's concern is that it overlaps with criminal mischief,
which defines damage to property similar to theft with monetary
levels. She suggested treating fear of significant damage in SB
128 the same way. It is currently listed as a class B
misdemeanor in SB 128.
SENATOR MCGUIRE said she likes the bill. She asked if the
language under Section 1 subsection (a) is good enough to charge
someone as it stands now, or if it needs clarification regarding
electronic communication. She worried the bill creates a
separate standard. She implied that the bill makes it harder for
the person who is receiving the electronic communication. She
objected to a list that might change.
2:17:35 PM
MS. CARPENETTI offered to help clarify the intent of the bill.
She explained that the difference in subsection (a)(1) for
harassment is that it is an immediate violent response. The
proposal of electronic communication does not require the
immediacy of a response.
SENATOR WIELECHOWSKI reiterated his questions about sending an
electronic communication via Facebook, the degree of significant
damage, and equal protection issues.
MS. CARPENETTI suggested saying "send or post" rather than
"send" an electronic communication. On the second matter, she
explained that the meaning of significant damage to property is
broken down by value under the criminal mischief statute.
Regarding equal protection, she said she would like to think
about it more, but there is reason to justify this provision
because electronic communication gets sent to a lot of people.
The potential to have many people see a post is higher than with
verbal encounters or letters. She opined that equal protection
could be raised.
SENATOR WIELECHOWSKI asked if the intent is person specific.
2:21:07 PM
MS. CARPENETTI said "culpable mental state" means intending to
harass and annoy the victim.
SENATOR DYSON said he could see how property could be damaged by
electronic means for an adult. He inquired what protections are
already in the law for handicapped persons.
CHAIR COGHILL said the sponsor could research that topic. He
asked Senator McGuire to withdraw her motion to adopt the Y
version of SB 128 because of the mistakes and issues with that
version.
2:23:04 PM
SENATOR MCGUIRE withdrew her motion to adopt version Y of SB
128.
SENATOR WIELECHOWSKI recommended a Vanderbilt Law Review article
on the constitutionality of cyberbullying laws. He concluded
that, as currently written, the bill has severe First Amendment
issues.
CHAIR COGHILL said it's an excellent suggestion and then
directed Senator Meyer to work further on the bill.
CHAIR COGHILL held SB 128 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Legislative Legal Opinion.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Sectional Analysis.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Written Testimony .zip |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Supporting Documents.zip |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Sponsor Statement.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| SB 128 CS Version O Summary of Changes.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 128 |