Legislature(2011 - 2012)HOUSE FINANCE 519
03/21/2012 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB359 | |
| HB361 | |
| HB9 | |
| HB296 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 296 | TELECONFERENCED | |
| + | HB 359 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 361 | TELECONFERENCED | |
| += | HB 9 | TELECONFERENCED | |
HOUSE BILL NO. 359
"An Act relating to conspiracy to commit human
trafficking in the first degree or sex trafficking in
the first degree; relating to the crime of furnishing
indecent material to minors, the crime of online
enticement of a minor, the crime of prostitution, and
the crime of sex trafficking; relating to forfeiture
of property used in prostitution offenses; relating to
sex offender registration; relating to testimony by
video conference; adding Rule 38.3, Alaska Rules of
Criminal Procedure; and providing for an effective
date."
1:41:39 PM
JOSEPH MASTERS, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY,
introduced himself and others present.
Co-Chair Stoltze congratulated Deputy Attorney General Rick
Svobodny for his 30-plus years of state service.
Commissioner Masters thanked the committee for hearing HB
359. He explained that the bill furthered the state's
efforts to strengthen laws that protect children and hold
offenders accountable. He expressed strong support for the
legislation. He discussed that many sections of the bill
reflected a change in terminology from "promoting
prostitution" to "sex trafficking"; the change made
important distinctions by accurately describing the
criminal act and using terms that were more common within
law enforcement nationwide. The bill was more respectful of
the victims who were lured and coerced into the sex trade
by offenders. He stated that the crimes were occurring in
Alaska and young girls/children were targeted and forced
into the sex trade by traffickers. Changing the title of
the crime would help lessen the shame and stigma many of
the victims had associated with experiencing the crimes. He
quoted from a statement Governor Parnell made when he
presented the bill:
The crimes of sex trafficking and human trafficking
are serious offences, which violate the most basic
human rights and deprives victims of every shred of
personal freedom.
Commissioner Masters relayed that the crimes were often
perpetrated by offenders working together including, human
and sex trafficking in the first degree. The list of felony
offences acknowledged the reality and allowed individuals
who conspired to commit the crimes more accountable under
the state's conspiracy laws. He noted that Attorney General
Michael Geraghty and Mr. Svobodny would provide further
detail on the legislation.
1:45:06 PM
MICHAEL GERAGHTY, ATTORNEY GENERAL, DEPARTMENT OF LAW,
echoed Commissioner Masters' testimony. He stated that the
bill was a priority of the governor and should be a
societal and legislative priority as well. He expressed
that the department looked forward to working with the
committee on the legislation. He highlighted items in the
bill: Section 4 addressed concerns raised by a U.S.
district court judge decision regarding the distribution of
indecent material to minors; the judge had found the law to
be over-broad and unconstitutional.
Co-Chair Stoltze asked who filed the cases on behalf of
sexual predators. He wondered what had taken place that led
to the court challenge.
Attorney General Geraghty believed that the American Civil
Liberties Union (ACLU) had challenged the law the prior
June as drafted in the specific case. He explained that as
the law applied to an individual the language turned into
"and as applied challenge to the law."
Co-Chair Stoltze remarked on his earlier question related
to who had filed the case.
Mr. Geraghty replied that the ACLU had thought the law was
too broad and had challenged it. He believed that the
deficiencies in the bill had been corrected and that it was
constitutionally enforceable. He addressed that Section 6
increased the penalty for a patron of a prostitute to a
Class C felony when the prostitute was a minor and the
patron was 18 years or older and at least three years older
than the minor. The department believed that a higher
penalty for adults was appropriate when the person paid to
have sex with a minor who could be participating in the
trade against their will. There were other sections that
dealt with videoconferencing of witnesses, given the
state's obligation to establish competency of defendants,
many of whom were in rural Alaska; other logistical issues
existed including arranging testimony from professionals
such as psychiatrists.
Mr. Geraghty recognized Mr. Svobodny for his 35 years of
service and shared a related story.
1:49:57 PM
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, discussed that the core of the
information discussed by Commissioner Masters and Attorney
General Geraghty was on page 5, line 9, which changed the
nomenclature for promoting prostitution.
Representative Guttenberg asked for clarification of the
bill version. Co-Chair Stoltze replied that the bill up for
consideration was a House Judiciary Committee CS.
Vice-chair Fairclough MOVED the bill before the committee.
Mr. Svobodny continued to explain that the changes
beginning on page 5, line 9 appeared in Sections 7 and 11
of the legislation. The provisions dealt with the crime of
promoting prostitution in the first through fourth degrees.
He addressed that the bill changed the term associated with
the crime of promoting prostitution to "sex trafficking,"
which recognized that there was a victim. He discussed that
provisions 1, 2, 7, 14, and 17 through 23 changed the term
from "promoting prostitution" to "sex trafficking" in other
statutes (i.e. the term promoting prostitution was changed
to sex trafficking under Title 47 related to defenses that
may be waived to adult court).
Mr. Svobodny pointed to the importance of a section that
began on page 3, line 6 of the bill, which added the crime
of human trafficking to the list of serious felony
offences. The crime was different than sex trafficking and
includes labor slavery and adult entertainment using
coercion or force where a person is brought into the state
for the specific purpose. He elaborated that the state
could bring a conspiracy charge for serious felony
offences; conspiracy involved a group of people that gather
together to plan to engage in the illegal activity.
Co-Chair Stoltze queried whether a recent case involving a
person in Chugiak/Eagle River who had brought in
entertainers and held their passports fell under the scope
of the bill. Mr. Svobodny answered in the affirmative. He
continued to provide detail on the legislation. There were
not many of the cases because the main witness was the
person engaging in prostitution; the bill provided another
tool to prosecute people without needing the victim to be
present.
1:56:30 PM
Representative Wilson questioned whether the department
believed that every prostitute was a victim.
Mr. Svobodny replied in the negative; however, a
significant portion of young people were victims because
they needed shelter and ended up being forced to sell
themselves in order to make money for the person who took
them in. He acknowledged that there were also individuals
who voluntarily engaged in prostitution; however, there
were a substantial number of young people that were victims
and victimized.
Co-Chair Stoltze surmised that by statute, minors who
engaged in sexual activity with adults would be considered
victims.
Mr. Svobodny agreed. He detailed that the bill did not take
away the ability to prosecute people for sexual abuse of
minors. The age of consent in Alaska was 16 and increased
to 18 if the person was in a position of authority; because
of the law regarding position of authority it was sometimes
possible to prosecute pimps for sexual abuse of a minor. He
furthered that the cases were hard to prove because they
involved examining a pattern of conduct including, inducing
a person to move away from their home, keeping them away
from responsible adults, depriving them of a phone and
communication, creating dependence for food and shelter,
and other. The bill provided the necessary tools to
prosecute such cases. He discussed that two years earlier
the legislature had changed the statutes related to
providing indecent materials to a minor at the governor's
request; the change resulted from a lawsuit the ACLU had
filed against the state. He expounded that the federal
court determined that under current statute there were
explicit sexual materials that could be distributed to
minors; the bill resolved the problem of the "over breadth"
issue by making the intent to sell the materials to a minor
a crime including when the distributor knew or believed
that the person was under the age of 16.
2:01:20 PM
Mr. Svobodny explained that Sections 5 and 6 dealt with a
change in law related to prostitution. He believed that
prostitution had been made illegal in Alaska in 1954 and it
had become a criminal offense to be a patron of a
prostitute in 2006. The bill increased the penalty
provisions to a Class C felony when the patron is over the
age of 18, is three years older than the prostitute, and
the prostitute is under the age of 18. Currently the act of
prostitution and the patronage of a prostitute were a Class
B misdemeanor. The House Judiciary Committee had included a
provision that allowed a case to go to a jury if the patron
asserted that he/she had a reasonable belief that the
prostitute was 18 years of age or older; similar language
was used related to sexual abuse of minors. The language
essentially meant that a patron would have needed to card a
prostitute in order to have a valid defense.
2:04:39 PM
Representative Doogan asked for an explanation of the
sentence "another person that the person believes" (page 4,
line 7). Mr. Svobodny explained that the sentence applied
to a person distributing the [indecent] material to a
person that they believe is under the age of 16.
Representative Doogan surmised that the words "another
person" referred to the first person [responsible for the
distribution of materials]. Mr. Svobodny responded in the
affirmative.
Representative Wilson asked for verification that under the
proposed legislation a 20 year-old could be charged as a
felon unless he could prove that he believed the prostitute
was over the age of 18. Mr. Svobodny replied in the
affirmative. He restated that a person could be charged
with a felony if they were over the age of 18, were three
years older than the prostitute, and the prostitute was
under the age of 18.
Representative Wilson asked for verification that a 17
year-old would be charged as a juvenile and with a
misdemeanor, but a person who was 20 or 21 years of age
would be charged as a felon. Mr. Svobodny answered that a
17 year-old would not be charged with a misdemeanor and
would be charged as a delinquent in children's court. He
elaborated that the punishment could range from "go home
and stay with your parents to two years in a locked
institution" depending on the youth's history and ability
to be rehabilitated.
2:08:21 PM
Representative Wilson questioned how a person would go to
court to say that they "knowingly or reasonably" thought
that the prostitute had been over the age of 18.
Mr. Svobodny answered that the state would bring a charge
of prostitution and the accused would need to prove the
elements of the offence to a jury beyond a reasonable
doubt. He detailed that the burden would shift to the
defendant if they chose to raise the defense that the
prostitute looked over the age of 18. The defendant would
then be required to show how they had determined that the
person was over 18 years of age (i.e. checking ID, asking
the prostitute's friends, or other). The defense would
acquit the defendant of the underlying offence if [he/she]
convinced the jury that [he/she] had believed the
prostitute was above the age of 18.
Representative Wilson wondered whether he had ever heard
that a person had asked for identification from a
prostitute. She was uncomfortable with the provision and
believed that 20 and 21 year olds were still children. She
concluded that unless the patron asked for ID, they would
be guilty of a felony.
Mr. Svobodny replied that in the context of sexual abuse of
a minor the specific defense was used frequently. He
explained that a defendant could convince a jury by saying
something like "she looked to me like she was 21. She told
me she was 19. I asked her girlfriends how old she was,
they said she was 18"; however, the defense would not be
plausible if it was obvious the person was under the age of
18.
2:10:58 PM
Representative Joule wondered about the ability to plea
bargain related charges.
Mr. Svobodny answered that approximately 93 percent to 97
percent of cases nationwide ended with plea negotiations.
In Alaska people could engage in plea negotiations for sex
offences, but they were still required to be included in
the offender registry. He believed that it was a "fact of
life" in the U.S. that most cases would be resolved through
plea bargains. He reiterated that given concerns by the
legislature and governor, he did not allow sex offences to
be reclassified as another type of offense such as a
burglary.
Representative Joule agreed that the reality [related to
plea bargains] was a sad fact.
Co-Chair Thomas commented on two fish violations that had
been prosecuted by the state recently: the individual who
plea bargained received a smaller fine than the person that
plead guilty. He wondered why the state would plea bargain
on an offense when it had proof of guilt. Mr. Svobodny
replied that he would be happy to discuss the cases once he
had all of the information.
Co-Chair Thomas responded that the Department of Fish and
Game had video of the offence for the individual who had
received a plea bargain. He told a personal story.
Mr. Geraghty clarified that the state tried cases that had
to be tried and did not agree to any plea bargains simply
because it did not want the expense or could not afford to
try them. He detailed that experienced attorneys understood
how the cases were typically resolved; without the
agreement of the judge the plea bargain was rejected and
the case may go to trial. He stated that the reality was
that most cases were plea bargained, which was an
appropriate result when there were experienced prosecutors.
He stressed that the state would not agree to any deals
"simply for the sake of cutting a deal." He was happy to
look into the specific case and he appreciated the point.
Co-Chair Thomas did not think it was necessary to look into
it; however, he did not believe a plea bargain should be
allowed when there was evidence of an offence. He told a
personal story about a fine he had received. He referred to
the $4000 fine the fisherman had received and opined that
it was too small.
2:19:53 PM
Representative Doogan pointed to Section 6 language that
read "Prostitution is a Class C felony if" and asked what
the current crime was.
Mr. Svobodny responded that under current statute,
provision A specified that it was a Class B misdemeanor for
a person to solicit or engage in sex for money. Provision C
in the legislation related to prostitutes who were under
the age of 18. He relayed that the bill did not change the
penalty unless the prostitute was under the age of 18,
there was a three-year age difference between the
prostitute and the patron, and whether the patron acted
reasonable to determine the age of the prostitute.
Representative Doogan understood, but did not agree. He
pointed to an escalation of charging that had been
occurring. He opined that all crimes would be a Class C
felony or higher if the current rate continued. He was not
convinced that the specific set of circumstances justified
the charge.
Representative Gara remarked that a person's belief that a
crime should be classified as a less serious offence did
not mean that they did not think it was a crime. He opined
that the person committing the most egregious offense was
the patron who hired a prostitute under the age of 18. He
wondered whether the crime level should be raised for the
"John" or "pimp."
Mr. Svobodny pointed to Sections 7 through 11 and explained
that the existing offences were strong. He detailed that
the bill would change the term from "promoting
prostitution" to "sex trafficking." He agreed that the
offence was probably more serious and had been considered
that way since the legislature passed the statutes in 1978.
He believed that promoting prostitution ranged from an
unclassified felony to a Class C felony.
Mr. Geraghty added that Section 7 talked about sex
trafficking including, inducing a person under the age of
18 to engage in prostitution, which would become a Class A
felony under the legislation.
Mr. Svobodny clarified that the offence was currently a
Class A felony. Mr. Geraghty remarked that current law
already punished the pimp more seriously.
Representative Gara noted that he had asked the question in
relation to Representative Doogan's comment.
Co-Chair Stoltze asked for verification that Section 6
addressed the "John" and Section 7 addressed the agent. Mr.
Svobodny believed that promoting prostitution in the first
degree was currently a Class A felony.
2:27:20 PM
AT EASE
2:34:56 PM
RECONVENED
Mr. Svobodny relayed that currently the prostitute or
patron were each guilty of a Class B misdemeanor. Section 6
of the bill increased the penalty to a Class C felony if
the patron was over the age of 18, three years older than
the prostitute, and the prostitute was under the age of 18.
Co-Chair Stoltze wondered whether the following age ranges
were examples of the three-year age difference: a 20 year-
old with a 17 year-old; a 19 year-old with a 16 year-old;
and an 18 year-old with a 15 year-old. He asked about the
terms related to a person over the age of 18.
Mr. Svobodny replied that it was midnight on a person's
[18th] birthday. The offense was a Class B misdemeanor if
the patron was 19 and the prostitute was 17.
Representative Gara asked why it was more "gross" to have a
21 year-old hire a prostitute that was just under the age
of 18 versus a 50 year-old hiring an 18 year-old. Mr.
Svobodny replied the administration's position is that a
line needed to be drawn somewhere. The goal was to create a
greater protection for people under the age of 18; it was
not the grossness factor, but the protection of children
factor.
2:40:35 PM
Representative Gara understood that the line was that the
person was a minor.
Vice-chair Fairclough believed that the administration was
trying to place the burden on a person who was older and
had more experiences with the difference between right and
wrong. The purpose was to stress that an adult should not
have sex with a minor. She opined that the intent of an
increased penalty was to make an adult think twice and ask
for ID if the person could be under the age of 18.
Mr. Svobodny added that the discussion was about an adult
engaging in a conduct that was already illegal. The goal
was to target individuals who went to prostitutes with the
idea that they wanted somebody very young.
Mr. Svobodny directed attention to Section 12, which
specified that the promotion of prostitution in the first
through third degrees did not require corroboration and
could rely on one person's testimony; the bill added the
promotion of prostitution or sex trafficking in the fourth
degree. Under current law property was subject to
forfeiture when it was used to promote prostitution; the
bill added the crime of prostitution to the list of crimes.
He added that the House Judiciary Committee had narrowed
the scope to Class C felony prostitution. Section 15 was
conforming. Section 16 would allow witnesses to testify via
videoconferencing related to the competency of a defendant.
Mr. Svobodny relayed that Section 19 was a conforming
amendment that dealt with trafficking. Section 25 included
a rule change that would allow videoconferencing under
special circumstances where a witness was found by the
court to be unavailable for trial (i.e. individuals serving
in the military out-of-state and other). The
videoconferencing represented a savings of time, money, and
limited resources. He added that there was a special
statute that applied to sex cases related to children.
Sections 26 through 27 related to the effective date.
2:47:12 PM
Co-Chair Stoltze clarified that there were no retroactive
effective dates. Mr. Svobodny agreed.
Representative Gara asked at what point did the penalty for
sex trafficking increase based on the age of a prostitute.
Mr. Svobodny replied that the age was 18 for promotion of
prostitution in the first degree; it was an unclassified
felony if the prostitute was under the age of 18 and it was
a Class A felony if the prostitute was over the age of 18.
Representative Gara asked for verification that the penalty
was an unclassified felony if the prostitute was under the
age of 18 and a Class A felony if the prostitute was over
the age of 18. Mr. Svobodny replied in the affirmative
related to the promotion of prostitution in the first
degree; it was the most egregious form of a person bringing
a person into the prostitution trade.
Representative Gara believed the age should be 21 and would
discuss it further when amendments were introduced.
LIEUTENANT RODNEY DIAL, ALASKA STATE TROOPERS, DEPARTMENT
OF PUBLIC SAFETY (via teleconference), voiced support for
the bill.
2:50:25 PM
JOSHUA DECKER, ATTORNEY, AMERICAN CIVIL LIBERTIES UNION
(ACLU)-ALASKA (via teleconference), referred to email
testimony that had been submitted by ACLU Executive
Director Jeffrey Mittman. The ACLU had concern that Section
16, which allowed video conferencing in competency
hearings, violated the confrontation clauses of Alaska's
Constitution. The union anticipated that the state would be
presented with facial challenges as well as challenges by
individual defendants, resulting in "needless" legal
expense.
Representative Gara asked for verification that Section 8
limited the circumstances where video conferencing was
allowed. He clarified that he had meant Section 16(h).
Mr. Decker replied that Section 16(h) listed circumstances
in which video conferencing was available. The agency
believed that the circumstances were over-broad and outside
the baseline the U.S. Supreme Court had established in the
Maryland v. Craig decision. He explained that the reason
for depriving a criminal defendant of their right to in-
person, face-to-face confrontation had to be a need to
further an important public policy; federal courts had
determined that items such as convenience, cost savings,
and efficiency did not meet the test. The agency had
determined that the section as drafted was outside the
minimum standards that had been set forth by the U.S.
Supreme Court and would expose the state to constitutional
challenges.
Co-Chair Stoltze asked whether the ACLU would sue. Mr.
Decker replied that he could not answer the question and
that the ACLU took litigation decisions one-by-one as they
came.
Co-Chair Stoltze referred to language that the "the court
may at the court's discretion." He wondered whether there
were "run-away" courts in Alaska. Mr. Decker did not
believe the bill or testimony impugned the integrity of the
courts. The agency's concern was that the language would be
inconsistent with requirements of the U.S. Constitution and
potentially the Alaska Constitution.
Representative Gara remarked that it was a constitutional
principle that allowed defendants to be face-to-face with
the accuser. He surmised that the principle should also
apply to a competency hearing. He believed that if a person
was presented with the possibility of a life jail sentence
that the accuser should be present in person for the judge
to determine whether the person was telling the truth.
Co-Chair Stoltze invited the Court System to provide any
commentary as the bill included a court-rule issue.
2:55:04 PM
Vice-chair Fairclough thought the video conferencing was
currently allowed for children and had been upheld by the
supreme court.
Mr. Svobodny replied that the Alaska Supreme Court had
upheld two-way videoconferencing with children; there was a
statute that allowed for the video conferencing when the
court determined that it would be detrimental to the child
to appear in court. He remarked that the situations were
slightly different. The competency hearings were slightly
different as well; competency hearings in the Ninth and
Fifth Circuit Courts in California were civil matters and
not criminal matters. He stated that competency hearings
were pre-trial matters, which could result from the request
of the court, the state, and the defense. He furthered that
there were a significant number of different items related
to a competency hearing versus a trial; the supreme court
had ruled that in relation to competency hearings there was
not a Fifth Amendment right or a Sixth Amendment right as
it related to counsel (the Sixth Amendment right of
confrontation had not been addressed).
Co-Chair Stoltze CLOSED public testimony with the option to
reopen it at a later time.
Mr. Geraghty looked forward to the committee's
consideration of the bill.
Commissioner Masters echoed Attorney General Geraghty's
remarks. He expounded that the bill was aimed at increasing
protection for children in the state; many of whom were 15
to 17 years of age. In addition to changing the statutory
definition of the crime to sex trafficking, the bill also
provided additional protections to youths.
Representative Gara asked whether Section 16 (that waived
in-person witness requirements in a competency hearing)
would impact the fairness for a defendant in cross
examination.
QUINLAN STEINER, PUBLIC DEFENDER AGENCY, ANCHORAGE (via
teleconference), responded that the constitutionality of
the two-way video conferencing in the state had not been
determined. He stated that if the law passed the legitimacy
would be challenged. He believed that there were strong
arguments stating that confrontation should apply because
it was a criminal proceeding. He observed that there were
arguments on the other side as well. The relevant policy
questions were convenience and money versus reliability of
the fact finding process; cross examination was best done
in person and was a critical part of ensuring that a court
was presented with the best evidence.
Co-Chair Stoltze remarked on the occurrence of
revictimization.
HB 359 was HEARD and HELD in Committee for further
consideration.
3:01:57 PM
AT EASE
3:04:15 PM
RECONVENED