Legislature(1995 - 1996)
02/22/1995 01:40 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 74
"An Act relating to the assault of children by adults."
PATTY SWENSON, STAFF, REPRESENTATIVE BUNDE testified on
behalf of HB 74. She stated that HB 74 was introduced in
response to an attack on a 14 year old newspaper boy in
Anchorage. She observed that Sean Jensen was attacked by
three adults at 5:30 a.m. while he attempted to deliver a
newspaper. The three adults were intoxicated. They knocked
out his permanent front teeth, caused neck injuries and ran
him over with a snow machine. The adults are only charged
with a misdemeanor. If Sean had been 10 years old or
younger a felony charge would have been possible. If he had
been an adult a felony charge would also have been possible.
Ms. Swenson observed that Section 2 provides the prosecutor
with flexibility to charge a defendant with a misdemeanor if
the defendant reasonably believes the victim was 16 years of
age or older.
Representative Kohring asked why the limit was set at 16
years of age. Ms. Swenson stated that the sponsor felt that
16 year old children begin to look like adults and at that
point you could not reasonable say that two adults were not
having a fight.
Representative Brown asked how "medical treatment" on page
2, line 5 would be interpreted. She stressed that "medical
treatment" should be defined. She hypothesized that
children could be injured playing sports.
MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW stressed
that AS 11.81.900 defines "physical injury" to mean a
"physical pain or an impairment of physical condition". She
stated that the intent of the legislation is to make it a
more serious circumstance than a simple physical injury
which could be pain. She acknowledged that medical
treatment could still be a relatively minor matter.
Ms. Knuth noted that AS 11.41.220 (a) was amended to state:
"A person commits the crime of assault in the third degree
if that person (1) recklessly... (C) while being 18 years of
age or older (i) causes physical injury to a child under 10
years of age and the injury reasonably requires medical
treatment." She asserted that there is no difference
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between the statute and the amendment except that the age is
being changed from 10 to under 16 years of age. She
questioned if "intentionally" was deleted by a drafting
oversight. She stressed that the law will assume that
"recklessly" applies.
She advised that if the intent is to provide a broad
interpretation then AS 11.41.220 (a)(1)(C) should be amended
by deleting "10" and inserting "16". She stated that if the
intent is to differentiate children under 10 from those over
10 then "intentionally" could be added for cases involving
children over the age of 10.
Ms. Swenson pointed out that "intentionally" would not cover
adults who injure a child while intoxicated. Ms. Knuth
agreed that statutes would allow intoxication as a defense
for intentional acts. She noted that intoxication would not
be a defense to acting recklessly. She reiterated that the
standard for the legislation as written would be "reckless"
for children under and over the age of 10. Ms. Swenson
recalled that the drafter indicated that the legislation as
written would identify two different mental states. She
noted that the House Judiciary Committee opposed the
addition of "intentionally".
Representative Brown questioned how a person would be
charged if a 17 year old child was injured. Ms. Knuth
answered that the charge would be assault in the fourth
degree, a class A misdemeanor, punishable up to one year in
prison. If a dangerous instrument were used or serious
physical injury was caused a felony charge could be made.
Ms. Swenson noted that even though the newspaper boy was run
over by a snow machine a felony charge was not possible
since the injury did not occur as a result of the snow
machine. Injuries were caused by the adults striking the
child with their fists.
Ms. Knuth noted that AS 11.81.610 states that: "If a
provision of law defining an offense does not prescribe a
culpable mental state, culpable mental state that must be
proved with respect to (1) conduct is `knowingly ; and (2) a
circumstance or a result is `recklessly.'"
Representative Brown asked if Ms. Knuth foresaw an impact on
sports or other activities that young people play with older
teenagers. Ms. Knuth agreed that district attorneys would
not want to charge cases involving sport injuries as
felonies. She acknowledged that sport injuries would
technically fall under this provision of law. She
reiterated problems with "intentionally" in regards to
intoxication as a defense.
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Representative Brown noted that the accompanying fiscal
notes are zero. She suggested that there will be some
fiscal impact as a result of the legislation.
In response to a question by Representative Kohring, Ms.
Knuth observed that the maximum penalty for third degree
assault is five years imprisonment. A class A misdemeanor
is a maximum one year imprisonment. She stated that she
would not expect more than 90 days to be imposed for a first
offense class A misdemeanor.
Representative Mulder MOVED to report HB 74 out of Committee
with individual recommendations and with the accompanying
fiscal notes. Representative Brown OBJECTED. She suggested
that AS 11.41.220 (a)(1)(C) should be amended to delete "10"
and insert "16".
Ms. Swenson stressed that the fiscal note is zero because
there are no statistics available between misdemeanors and
felonies. She understood that there will not be enough
cases under the legislation to result in a fiscal impact.
Representative Brown emphasized that even one case would
have a fiscal impact.
JERRY LUCKHAUPT, LEGISLATIVE LEGAL COUNSEL, LEGISLATIVE
AFFAIRS AGENCY explained that the legislation was drafted
with the intention of providing a stair-step approach. He
stated that he was operating under the assumption that if
the conduct itself is the cause of the physical injury then
a "knowing" mental state would be read into the statute. He
acknowledged that other interpretations could result in
"reckless" as the implied standard. He suggested that
"knowingly" could be added if the Committee supports a
stair-stepped approach. He observed that "knowingly" is a
higher mental state and requires a greater burden of proof
on the prosecution.
Ms. Swenson stated that the sponsor's intent was to provide
a stair-stepped approach.
Representative Parnell clarified that "reckless" requires a
lesser burden of proof than "knowingly". Mr. Luckhaupt
observed that a reckless standard is kin to a gross
negligent standard in civil context. He explained that the
risk is perceived by the defendant and the disregard of risk
is viewed as a gross deviation from what a reasonable person
would do in the circumstances.
Mr. Luckhaupt explained that "knowing" is the awareness of
the act you are doing a the time. It is not intentional to
cause harm, but it is intentional to do the act.
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Co-Chair Hanley reiterated reasons for a stair-stepped
approach.
Representative Therriault MOVED to add "knowingly" on page
2, line 3.
Mr. Luckhaupt reiterated that "knowingly" would add a higher
mental state. The prosecutor will have to prove that the
defendant intended to do the act that results in harm. He
discussed the reasoning behind a reckless mental state for
abuse of children under 10.
Representative Brown reiterated concern that injuries as the
result of organized sports would fall under the
legislation's sanction. Representative Mulder echoed
concerns that 18 year old high school students may be
involved in injuries to other high school students who are
16 years old.
Mr. Luckhaupt observed that the District Attorney will
decide if charges are filled in each circumstance. He noted
that the knowing mental state would be more difficult to
prove.
Representative Brown clarified that intoxication does not
operate as an offense to general intent crimes such as
"knowing".
Mr. Luckhaupt pointed out that section two of the
legislation was inserted to allow the defense that the
person reasonably thought the minor was 16 years of age or
over.
Representative Therriault WITHDREW his motion to amend HB 74
by adding "knowingly" on page 2, line 3. Representative
Mulder WITHDREW his motion to move HB 74 from Committee.
Therriault MOVED to add "knowingly" on page 2, line 3.
Representative Martin spoke in support of a "reckless"
mental state. A roll call vote was taken on the MOTION to
add "knowingly" on page 2, line 3.
IN FAVOR: Brown, Grussendorf, Navarre, Kelly, Kohring,
Mulder, Foster, Hanley
OPPOSED: Martin
Representative Parnell was absent from the vote.
The MOTION FAILED (9-1).
Representative Brown argued that ordinary activities where
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individuals choose to play sports and take physical risks
where they might injure someone, even knowingly, should not
be a crime.
(Tape Change, HFC 95-29, Side 2)
Representative Grussendorf recognized that injuries occur in
organized sports. Mr. Luckhaupt acknowledged that
individuals participating in organized sports have been
prosecuted for assault in cases where serious bodily injury
was inflicted on another player. He restated that the
prosecutor must decide if charges are warranted. He
insinuated that "knowingly" would make it more difficult to
prosecute the case where an elbow is thrown in a pick-up
basketball game. He acknowledged that an affirmative
defense could be added to the legislation to allow the
defense that the injury occurred while engaged in the normal
acts of a game.
In response to a question by Representative Kelly, Mr.
Luckhaupt reiterated that in case of an intentional act, the
prosecution would have to show that the defendant had the
specific intention to cause physical injury which requires
medical treatment. He observed the difficulty of proof in
most circumstances.
Representative Therriault pointed out that a jury must also
be convinced of the defendants guilt.
Representative Mulder felt confident that the incidental
aggressive behavior on basketball courts or other sporting
events are protected by the "knowing" standard.
Representative Mulder MOVED to report CSHB 74 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. Representative Kelly OBJECTED.
Mr. Luckhaupt estimated that charges would not be filed in a
normal sport situation unless there is some conduct outside
the bonds of reason. Representative Kelly WITHDREW his
objection. Representative Brown continued to have concerns
that the "knowing" standard is not proper for the creation
of a felony crime. Co-Chair Hanley spoke in support of the
legislation as amended. He suggested that the legislation
would adequately protect normal sport circumstances.
Mr. Luckhaupt stressed that the legislation takes the middle
ground between adoption of a "reckless" and "intentional"
mental state. He pointed out that there is no requirement
for prosecutors to file felony charges against everybody
that meets the circumstance.
Representative Grussendorf observed that some organized
sport participants actually try to inflict injuries to their
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opponentes within the rules of the game.
A roll call vote was taken on the MOTION to move CSHB 74
(FIN) out of Committee.
IN FAVOR: Grussendorf, Navarre, Kelly, Kohring, Martin,
Mulder, Parnell, Foster, Hanley
OPPOSED: Brown, Foster
The MOTION FAILED (2-9).
CSHB 74 (FIN) was reported out of Committee with a "do pass"
recommendation and with three zero fiscal notes by the
Department of Law, Department of Corrections, and Department
of Public Safety.
ADJOURNMENT
The meeting adjourned at 4:00 p.m.
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