Legislature(1999 - 2000)

04/26/1999 01:55 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 34                                                                                                               
"An Act relating to the crime of misprision of a crime                                                                          
against a child."                                                                                                               
REPRESENTATIVE FRED DYSON, SPONSOR explained that the                                                                           
legislation was the result of a case that occurred in                                                                           
Nevada. A seven-year-old child was molested and killed in a                                                                     
casino restroom. A friend of the perpetrator observed the                                                                       
act. He later gave the perpetrator a ride back to                                                                               
California. The person observing did not act to assist the                                                                      
minor during the assault and murder.                                                                                            
Representative Dyson noted that since this crime eight                                                                          
states have made it a misdemeanor to refuse to go to the aid                                                                    
to a child who is actively being assaulted. He noted that                                                                       
laws to assist were very common in American and English                                                                         
common law over a 130 years ago. The duty to assist did not                                                                     
survive when states moved to statute law. He noted that                                                                         
professional mariners are required to go to the aid of a                                                                        
vessel in need of assistance. Police and military personnel                                                                     
also have a duty to assist those in distress. The                                                                               
legislation would make it a class A misdemeanor to refuse to                                                                    
assist a minor. He observed that it is a positive offense if                                                                    
a person does not help the child because they are afraid for                                                                    
their own life or safety. He noted that fiscal notes are                                                                        
indeterminate because it is unclear how many cases would be                                                                     
prosecuted. He estimated that there would only be one or two                                                                    
cases in a decade. He stressed that a culture's values are                                                                      
reflected in its law. He observed that under current statute                                                                    
a person could sell tickets to an assault of a child with                                                                       
Representative J. Davies spoke in support of the                                                                                
legislation. He asked why it is limited to children.                                                                            
Representative Dyson noted that the Senate version of the                                                                       
legislation was not restricted to children. He stated that                                                                      
the concept of the duty to assist is not common to our                                                                          
statute law. He observed that legislation pertaining to                                                                         
those viewed as incompetent, such as children under the age                                                                     
of majority would be easier to defended. He stated that an                                                                      
argument could be made to extend the law to developmental                                                                       
disabled or profoundly handicapped adults. He stated that he                                                                    
would support an expansion of the legislation.                                                                                  
Vice-Chair Bunde clarified that "child" would be defined as                                                                     
anyone under 18 years of age.  He asked how serious crimes                                                                      
committed by a child would be addressed. Representative                                                                         
Dyson noted that the bill does not speak to anticipated                                                                         
crimes.  He referenced page 1, line 8:                                                                                          
"Witnesses what the person knows or reasonably should                                                                           
know is (A) the murder or attempted murder of a child                                                                           
by another; (B) The kidnapping or attempted kidnapping                                                                          
of a child by another; (C) The sexual penetration or                                                                            
attempted sexual penetration by another."                                                                                       
Representative Dyson stated that "a crime is about to                                                                           
happen" could be added after "reasonably should know".                                                                          
Co-Chair Therriault stressed that consideration should be                                                                       
given to the possible fiscal impact.                                                                                            
Representative Grussendorf questioned the effect the                                                                            
legislation would have on witnesses.  He noted that a person                                                                    
who did not respond during the event could be penalized if                                                                      
they come forth as a witness after the fact. He expressed                                                                       
concern a person may view something but not be sure of what                                                                     
is happening at the time of the event.                                                                                          
Representative Dyson acknowledged the difficulty of knowing                                                                     
if a child is being kidnapped or is just acting up to their                                                                     
parents. He noted that the legislation addresses what a                                                                         
person  "knows" or "reasonably should know." He observed                                                                        
that not being certain of a confusing situation is a                                                                            
positive defense. He added that exceptions are made for                                                                         
those fearing injury: "did not report in a timely manner                                                                        
because the defendant reasonably believed that doing so                                                                         
would have exposed the defendant or others to a substantial                                                                     
risk of physical injury." He observed that people are afraid                                                                    
of involvement in domestic violence cases. He stressed that                                                                     
prosecutors would grant witnesses immunity from prosecution                                                                     
in order to allow testimony against perpetrators.                                                                               
Representative Kohring spoke in support of the legislation                                                                      
and questioned if the penalty should be a felony instead of                                                                     
a misdemeanor. Representative Dyson stated that the penalty                                                                     
was a felony in the original legislation. He explained that                                                                     
the legislation asks that people assist in instances that                                                                       
would be class E felonies. He explained that if the penalty                                                                     
for failing to assist were a felony that the perpetrator and                                                                    
the person who failed to assist could be charged the same.                                                                      
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES                                                                      
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW acknowledged                                                                      
that no one would disagree that people have a moral                                                                             
obligation to help a child. She stressed that the problem                                                                       
occurs when it is made a crime. She emphasized that the                                                                         
legislation pertains to a person that simply witnesses a                                                                        
crime. She observed that it is already against the law to                                                                       
help a perpetrator during or after a crime. The legislation                                                                     
only addresses a person who witnesses an offense. She                                                                           
acknowledged that the person should go to the aid of the                                                                        
child. The concern is that if a person witnesses a crime and                                                                    
does not report it in a timely manner that they would be                                                                        
lost as a witness. She noted that witnesses would be locked                                                                     
into their previous testimony, for fear that they will be                                                                       
charged if they change their story and tell the truth.                                                                          
Failure to assist was a crime in common law, but fell into                                                                      
disuse due to problems. She suggested that the legislation                                                                      
begin with the most serious crimes, murder, kidnapping and                                                                      
perhaps attempted murder. She stressed that the broader the                                                                     
bill the greater the problems in relationship to witnesses.                                                                     
She noted that the difference between felony and misdemeanor                                                                    
assaults could be subtle. The difference involves the mental                                                                    
state of the perpetrator in relationship to intent,                                                                             
recklessness or criminal negligence. She recommended that                                                                       
felonious assault be deleted and the legislation be limited                                                                     
to murder, kidnapping and perhaps sexual assault in the                                                                         
first degree.                                                                                                                   
Representative Grussendorf observed that the state of                                                                           
Minnesota has a similar law. He asked if other states have                                                                      
broader laws. Ms. Carpeneti did not know.                                                                                       
Vice-Chair Bunde questioned if the person that witnessed the                                                                    
Nevada crime could have been prosecuted in Alaska since he                                                                      
aided the escape of the perpetrator.  Ms. Carpeneti stated                                                                      
that Alaska law states prohibits a person from aiding and                                                                       
helping a person escape with intent.  She felt that it would                                                                    
have been possible to investigate the charge if it the crime                                                                    
had occurred in Alaska. She noted aiding a criminal is a                                                                        
class A felony in Alaska.                                                                                                       
Vice-Chair Bunde asked if Representative Dyson would be                                                                         
willing to drop the assault charge. Representative Dyson                                                                        
stated that he would be willing to drop assault if it were                                                                      
necessary to advance the bill, but that it would not be his                                                                     
Ms. Carpeneti explained that a class A felony has a penalty                                                                     
of one year imprisonment and a $500 thousand dollar fine.                                                                       
In response to comments by Representative Foster, Ms.                                                                           
Carpeneti reiterated that the legislation allows an                                                                             
affirmative defense of fear.                                                                                                    
Representative Dyson gave examples of similar legislation                                                                       
enacted by other states. He noted that Massachusetts has                                                                        
also included armed robbery.                                                                                                    
Representative J. Davies questioned if there would be a way                                                                     
to further delineate assaults. He observed that "assaults                                                                       
punishable as a felony" is a high standard. He suggested                                                                        
that the language could read "an assault such as armed                                                                          
robbery." Representative Dyson explained that felonious                                                                         
assaults include a deadly weapon. He noted that the                                                                             
definition of a deadly weapon is subject to interpretation.                                                                     
Co-Chair Therriault stressed that the general public would                                                                      
not know the level of the offense under the law. Ms.                                                                            
Carpeneti acknowledged that felony is a legal term.                                                                             
Representative Dyson pointed out that there is no penalty                                                                       
for reporting lower level assaults.                                                                                             
In response to a question by Vice-Chair Bunde,                                                                                  
Representative Dyson explained that molestation and abuse                                                                       
were not added in order to clarify the legislation. The                                                                         
intent is that a child in grave danger receives assistance.                                                                     
Vice-Chair Bunde stressed that the legislation needs to be                                                                      
clearly defined.                                                                                                                
Representative J. Davies suggested that "punishable as a                                                                        
felony" be deleted and "an assault that would inflict severe                                                                    
physical harm" be inserted. Ms. Carpeneti stated that the                                                                       
language would improve the legislation. She recommended that                                                                    
the legislation be restricted to murder, kidnapping and                                                                         
sexual assault in the first degree. She added that assault                                                                      
in the first degree could be added. She pointed out that                                                                        
there is no penalty for a person who reports every time they                                                                    
see a child in need.                                                                                                            
Representative J. Davies expressed concern that the use of                                                                      
"felony" would provide a loophole.                                                                                              
Representative Dyson stressed that the legislation pertains                                                                     
to children being assaulted by an adult. Co-Chair Therriault                                                                    
pointed out that the legislation includes children up to the                                                                    
age of 18. Representative Grussendorf noted that the adult                                                                      
could be one or two years older than the victim.                                                                                
Ms. Carpeneti explained that first degree sexual assault is                                                                     
usually sexual penetration without consent. Ms. Carpeneti                                                                       
recommended that sexual penetration without consent could be                                                                    
used to limit the legislation to sexual assault in the first                                                                    
degree. Representative Grussendorf asked if the age of                                                                          
consent would affect the legislation. Ms. Carpeneti                                                                             
clarified that it would not impact the legislation. The main                                                                    
issue is the consent.                                                                                                           
Representative J. Davies asked that the legislation be held                                                                     
for 24 hours to allow an amendment. Representative Dyson                                                                        
supported his request.                                                                                                          
HB 34 was HELD in Committee for further consideration.                                                                          
(Tape Change, HFC 99  - 104, Side 1)                                                                                            

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