Legislature(2005 - 2006)HOUSE FINANCE 519
01/31/2006 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB245 | |
| HB326 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 245 | TELECONFERENCED | |
| += | HB 326 | TELECONFERENCED | |
1:58:47 PM HOUSE BILL NO. 326 An Act relating to harassment. MICHAEL PAWLOWSKI, STAFF, REPRESENTATIVE KEVIN MEYER, commented that HB 326 includes the publishing, posting or distribution of material described as lewd and/or obscene in the definition of harassment. He noted that the issue arose from a constituent whose photos were taken from a consensual situation and then as the relationship ended, those pictures were used to harass that person. It is obvious that the Alaska Statutes are not keeping up with technology. With the availability of small digital cameras & phones has changed the way that photos can be taken and used to harass individuals. He reiterated that HB 326 changes current statute to include the publishing or posting of lewd or obscene pictures in the definition of harassment. Mr. Pawlowski noted the attached three zero notes. 2:01:12 PM Co-Chair Meyer reiterated that a constituent of his had brought the legislation forward. 2:01:29 PM Representative Holm asked if the zero note would create a potential problem for the Department of Law. He questioned if there was an indication of prosecution coming forward and asked if the note should be classified as indeterminate. 2:02:08 PM Mr. Pawlowski understood that the departments could absorb any change to the definition. He clarified that harassment is not happening as much as they believe it will be in the future. Co-Chair Meyer pointed out it would be classified as a Class B misdemeanor. Representative Holm asked more information regarding how the impact will be handled. 2:03:05 PM Representative Kerttula indicated the she had questions for Ms. Carpeneti, Department of Law. 2:03:59 PM ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW, offered to answer questions of the Committee. Representative Kerttula asked about the information attempting to be outlawed by passage of the bill and if conduct and speech were included. She thought that the State would be creating problems [inaudible]. She inquired about the limited jury option and how difficult would it be to show if infringement were substantial. She asked if it would be dependant upon each case. Ms. Carpeneti acknowledged that was correct. She noted that the case that brought the legislation forward also involved anonymous phone calls. The legislation is less speech and more conduct oriented. 2:05:26 PM Representative Kerttula emphasized that it could happen, and wanted it noted for the record. Ms. Carpeneti agreed. 2:05:58 PM Vice Chair Stoltze questioned if it could become a free speech issue. Mr. Pawlowski interjected that there had been discussion regarding that in the House Judiciary Committee. The distinction is that the conduct is not judged and based on the interpretation of the person who the picture is of, but rather the intent of the person publishing it. He stressed that would be when conduct crosses the line. The proposed legislation is intended to address that place. 2:07:27 PM MARC ANTRIM, COMMISSIONER, DEPARTMENT OF CORRECTIONS, noted that the Administration does support the legislation. He provided comments on a case that happened within the Department of Corrections in the late 1990's at the Lemon Creek Correctional Center. In that case, an employee was accused of "guy cruising". The mystery was unsolved. The Department noticed a website called "My Fantasy Rape", which was created by a student on campus in Colorado. He emphasized that these are "serious" concerns. 2:14:54 PM Representative Kerttula inquired what change that person had been prosecuted under. Commissioner Antrim replied that Colorado is one of seven states that has a criminal liable statute. Those statutes have been attached on the basis of free speech. Not many accused have been prosecuted under it, however, that person was charged with impersonating a police officer and falsifying documents. Alaska was not able to file charges on that person in Colorado. 2:15:50 PM Representative Kerttula advised that the proposed statute would not change that and that Alaska still would not be able to "take" that person with passage of this bill. Commissioner Antrim agreed. 2:16:20 PM Representative Hawker referenced the proposed new language: "(6) publishes, posts, or distributes electronic or printed photographs, pictures, depictions, or films that show the genitals, anus, or female breast of the other person or show that person engaged in a sexual act". Representative Hawker asked what would happen if it were a composite photograph adjusted digitally and could that provide an affirmative defense. Ms. Carpeneti advised that behavior could not be covered under the proposed language. Representative Hawker asked if it was the intent that it not be covered in the bill. 2:18:10 PM Co-Chair Meyer thought that it would be covered someplace else in the bill. Mr. Pawlowski interjected that it is not covered in the House Judiciary Committee version. The issued addressed by Legislative Legal is free speech and how it becomes more problematic reaching away from the actual person. HB 326 attempts to walk a "fine line" between addressing free speech issues and staying on the correct line. Legislative legal warned about "going to that place" using the actual composite pictures. 2:19:04 PM Representative Hawker observed that with the ability used in digital imagery, there could be a loophole. Co-Chair Meyer agreed, noting that the only intent with the proposed legislation was to prevent using current technology to harass. Ms. Carpeneti advised that the legislation is a st limited approach because of 1 Amendment concerns. 2:19:50 PM Representative Kerttula pointed out that it could fall into the indecent photography statute. 2:20:13 PM Representative Hawker mentioned "consensual behavior" st related to the 1 Amendment. He asked if a prosecutor could accuse someone engaged in consensual behavior. Co-Chair Meyer pointed out that issue was addressed in the House Judiciary Committee. Ms. Carpeneti stated that the photos in the proposal would have been taken consensually, which is how it differs from indecent photographic viewing, photos taken without consent. These are taken with consent and then used without consent. Representative Hawker stated that the critical element is that the burden of proof must be established in order to determine harassment. 2:21:27 PM Representative Stoltze asked if there had been discussion of the depictions. Mr. Pawlowski said there has been no discussion in Committee. He recalled that Legislative Legal Services agreed to include the language as a definition of photograph versus how a picture can be printed. That is standard language and was lifted from the Alaska Statute (AS) 11.61.123 definition. 2:22:17 PM Mr. Pawlowski commented that the language key to Representative Hawker reference is that it would have to be limited to what is actually on that person's body. The proposed legislation is limited, but the behavior exists and must be stopped. 2:22:48 PM Representative Foster MOVED to REPORT CS HB 326 (JUD) out of Committee with individual recommendations and with the accompanying zero notes. There being NO OBJECTION, it was so ordered. CS HB 326 (JUD) was reported out of Committee with a "do pass" recommendation and with three zero notes by the Alaska Court System, the Department of Law and the Department of Public Safety.
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