Legislature(1995 - 1996)

02/22/1995 01:40 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  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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