Legislature(2019 - 2020)ADAMS ROOM 519

04/26/2019 09:00 AM FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Presentation: Criminal Justice TELECONFERENCED
<Above Item Removed from Agenda>
+ HB 145 PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS TELECONFERENCED
Scheduled but Not Heard
<Pending Referral>
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 61 COMM FISHERMEN'S FUND:VESSEL OWNER CLAIMS TELECONFERENCED
Moved SB 61 Out of Committee
+= HB 16 LOCAL FOOD PROCUREMENT; LABELING TELECONFERENCED
Moved SSHB 16 Out of Committee
+= HB 32 AK ENERGY EFFICIENCY LOANS: ELIGIBILITY TELECONFERENCED
Moved HB 32 Out of Committee
+= HB 14 ASSAULT; SEX OFFENSES; SENT. AGGRAVATOR TELECONFERENCED
Moved CSHB 14(FIN) Out of Committee
HOUSE BILL NO. 14                                                                                                             
                                                                                                                                
     "An  Act  relating  to assault  in  the  first  degree;                                                                    
     relating to  sex offenses;  relating to  the definition                                                                    
     of  'dangerous   instrument';  and  providing   for  an                                                                    
     aggravating  factor  at  sentencing  for  strangulation                                                                    
     that results in unconsciousness."                                                                                          
                                                                                                                                
9:17:18 AM                                                                                                                    
                                                                                                                                
Co-Chair Foster MOVED to ADOPT Amendment 1, 31-LS0182\O.2                                                                       
(Radford, 4/22/19) (copy on file):                                                                                              
                                                                                                                                
     Page 1, line 1, following "degree;":                                                                                       
     Insert "relating to harassment;"                                                                                           
                                                                                                                                
     Page 2, following line 6:                                                                                                  
     Insert a new bill section to read:                                                                                         
     "* Sec. 2. AS 11.61.118(a) is amended to read:                                                                             
     (a) A  person commits  the crime  of harassment  in the                                                                    
     first  degree if,  under  circumstances not  proscribed                                                                    
     under  AS  11.41.434  -  11.41.440,  [(1)]  the  person                                                                    
     violates AS 11.61.120(a)(5)  and the offensive physical                                                                    
     contact  is contact  (1) with  human  or animal  blood,                                                                    
    mucus, saliva, semen, urine, vomitus, or feces; or                                                                          
     (2)  [UNDER  CIRCUMSTANCES   NOT  PROSCRIBED  UNDER  AS                                                                    
     11.41.434-11.41.440,    THE    PERSON    VIOLATES    AS                                                                    
     11.61.120(a)(5) AND  THE OFFENSIVE PHYSICAL  CONTACT IS                                                                    
     CONTACT]  by  the   person  touching  through  clothing                                                                    
     another   person's   genitals,  buttocks,   or   female                                                                    
     breast."                                                                                                                   
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 2, line 23:                                                                                                           
     Delete "ejaculating on the victim"                                                                                         
     Insert "causing  the victim to  come into  contact with                                                                    
     ejaculate"                                                                                                                 
                                                                                                                                
     Page 9, line 8, following "Act;":                                                                                          
     Insert "AS 11.61.118(a),  as amended by sec.  2 of this                                                                    
     Act,"                                                                                                                      
                                                                                                                                
     Page 9, line 9:                                                                                                            
     Delete "sec. 2"                                                                                                            
     Insert "sec. 3"                                                                                                            
                                                                                                                                
     Page 9, line 10:                                                                                                           
     Delete "sec. 3"                                                                                                            
     Insert "sec. 4"                                                                                                            
     Delete "sec. 4"                                                                                                            
     Insert "sec. 5"                                                                                                            
                                                                                                                                
Co-Chair  Foster   noted  the  amendment  was   a  sponsor's                                                                    
amendment by the request of the Department of Law (DOL).                                                                        
                                                                                                                                
Representative Carpenter OBJECTED for discussion.                                                                               
                                                                                                                                
Co-Chair  Wilson asked  the sponsor's  office to  review the                                                                    
amendment.                                                                                                                      
                                                                                                                                
ROSE  FOLEY, STAFF,  REPRESENTATIVE  JOHN LINCOLN,  reviewed                                                                    
the  amendment  that made  two  changes.  She began  at  the                                                                    
bottom  of  page  1,  line  20 that  reverted  back  to  the                                                                    
previous definition  of sexual contact: "causing  the victim                                                                    
to come into contact with  ejaculate." The Department of Law                                                                    
expressed concern  that it would  be difficult to  prove the                                                                    
method of  delivery if the  language only  read "ejaculating                                                                    
on the victim."  She expounded there may  be instances where                                                                    
the victim  had ejaculate  on their person,  and it  was not                                                                    
readily provable that the perpetrator  had ejaculated on the                                                                    
victim rather  than delivering the fluid  in another manner.                                                                    
The  top  part  of  the amendment  eliminated  some  overlap                                                                    
between the sexual abuse of  a minor and harassment statutes                                                                    
by  adding to  the harassment  statute "under  circumstances                                                                    
not  proscribed under  AS 11.41.434-11.41.440,"  which would                                                                    
instruct  the  prosecutor  to  first  look  to  see  if  the                                                                    
criteria for sexual abuse of  a minor is met before charging                                                                    
harassment.                                                                                                                     
                                                                                                                                
Representative   Josephson   thought   the   amendment   was                                                                    
beneficial because there could  be circumstances where there                                                                    
could be  a sexual abuse  of a minor charge  that previously                                                                    
would not have been charged  because of the placement of the                                                                    
clarifying  language "under  circumstances not  proscribed."                                                                    
Additionally,  the   amendment  dealt  with  the   issue  of                                                                    
transport  of bodily  fluid. He  asked if  Legislative Legal                                                                    
Services  had  communicated  to the  sponsor's  office  that                                                                    
there  had  been an  equal  protection  concern relative  to                                                                    
bodily fluid.                                                                                                                   
                                                                                                                                
Ms. Foley replied in the affirmative.                                                                                           
                                                                                                                                
Representative  Josephson requested  to  ask  DOL about  its                                                                    
view of the equal protection argument.                                                                                          
                                                                                                                                
JOHN  SKIDMORE, DIRECTOR,  CRIMINAL DIVISION,  DEPARTMENT OF                                                                    
LAW,  replied that  he had  been asked  about DOL's  view on                                                                    
concerns about equal protection.  He referenced debates that                                                                    
had occurred  in the  legislature about  whether or  not the                                                                    
bill  needed to  refer to  ejaculate or  semen. He  reported                                                                    
that equal protection under the  Alaska Constitution and the                                                                    
U.S.  Constitution stated  that  people  who were  similarly                                                                    
situated  could not  be  treated  differently. He  explained                                                                    
that the  use of the word  "semen" did not deal  with people                                                                    
who  were similarly  situated differently  because only  men                                                                    
produce   semen.  He   stated   it  did   not  treat   women                                                                    
differently. Second, if  it was found for  some reason there                                                                    
was  a  distinction  and  it  was  said  they  were  treated                                                                    
differently,  the law  specified  that it  was necessary  to                                                                    
determine whether  there was a  compelling reason  for doing                                                                    
so.  The  statistics  that applied  to  sexual  assault  and                                                                    
sexual abuse of  minors showed that 97 to 98  percent of the                                                                    
offences were committed by men.                                                                                                 
                                                                                                                                
Mr. Skidmore  continued that if someone  wanted to prosecute                                                                    
a  case  where   a  female  had  engaged   in  the  activity                                                                    
criminalized under  the bill, the  prosecutor would  have to                                                                    
determine whether  there was testing  that could  help prove                                                                    
the  case. The  state crime  lab had  informed DOL  that the                                                                    
scientific evidence  available could specify whether  or not                                                                    
a  fluid  was  semen.  There was  no  testing  available  to                                                                    
indicate  whether  or  not  other   fluid  would  have  been                                                                    
ejaculate that  would have  been produced  by a  female. The                                                                    
choice  between  the words  "ejaculate"  and  "semen" was  a                                                                    
policy choice  by the legislature.  He added that  semen was                                                                    
the  term  used in  several  other  sex crime  statutes.  He                                                                    
clarified  that the  word choice  was ultimately  up to  the                                                                    
legislature and either would work for DOL.                                                                                      
                                                                                                                                
9:22:59 AM                                                                                                                    
                                                                                                                                
Representative  Josephson   asked  how  to  deal   with  the                                                                    
situation for a man who had  a vasectomy and did not produce                                                                    
semen.  He  asked   if  there  was  a   definition  for  the                                                                    
situation.                                                                                                                      
                                                                                                                                
Mr. Skidmore  answered there was not  currently a definition                                                                    
in  statute. The  department had  consulted  with the  state                                                                    
crime  lab that  used a  technical definition  for semen  as                                                                    
follows: seminal male reproductive  fluid, which may contain                                                                    
sperm cells.  There were a  number of medical  conditions or                                                                    
procedures that  could result in semen  not containing sperm                                                                    
cells.  The crime  lab's definition  of semen  would not  be                                                                    
impacted if someone had a vasectomy.                                                                                            
                                                                                                                                
Representative Josephson  had looked  at Alaska  caselaw and                                                                    
it contained  73 usages of  the word  semen and 9  usages of                                                                    
the  word  ejaculate. He  did  not  look  at every  case  to                                                                    
determine if  it was impactful  or meaningful. He  asked the                                                                    
information was informative to DOL in some way.                                                                                 
                                                                                                                                
Mr. Skidmore  responded that had  not done a  similar search                                                                    
and  therefore  had  not  read  all  of  the  references  in                                                                    
caselaw.  He  declined  to  comment  without  reviewing  the                                                                    
cases.                                                                                                                          
                                                                                                                                
Representative  Josephson noted  that the  court had  talked                                                                    
about semen 73 times. He asked if that was informative.                                                                         
                                                                                                                                
Mr.  Skidmore answered  that semen  was the  term used  in a                                                                    
number of  other statutes,  which was in  part why  the word                                                                    
may  be   referenced  more  frequently  [in   caselaw].  The                                                                    
information  indicated  that  the courts  and  practitioners                                                                    
were  comfortable and  accustomed to  using that  particular                                                                    
language. In the department's  experience, when language was                                                                    
changed there was  always litigation as people  would try to                                                                    
argue about  what was  actually meant.  He explained  it was                                                                    
the  natural  course   of  the  way  things   worked  in  an                                                                    
adversarial system like criminal justice.                                                                                       
                                                                                                                                
Representative  Carpenter   pointed  to   line  11   of  the                                                                    
amendment pertaining  to a person  coming into  contact with                                                                    
human  fluid  or some  other  substance  including human  or                                                                    
animal blood, mucus,  saliva, etcetera. He asked  if a crime                                                                    
still  fell  under  harassment a  communicable  disease  was                                                                    
transmitted. He wondered if there  was a more severe penalty                                                                    
applied in the situation.                                                                                                       
                                                                                                                                
Mr.  Skidmore  answered  that  DOL  had  wrestled  with  the                                                                    
question in  the past. He  explained that DOL  evaluated the                                                                    
disease that  had been transferred  and the  potential risks                                                                    
or harm  the disease caused.  Based on the  information, DOL                                                                    
evaluated  whether  or  not   the  disease  was  transferred                                                                    
knowingly,  intentionally,   or  recklessly  and   it  would                                                                    
consider  whether  the harm  could  be  defined as  physical                                                                    
injury.  He  expounded that  if  harm  could be  defined  as                                                                    
physical it would fall under  the assault category. He added                                                                    
that DOL would  have to look to the  definitions of physical                                                                    
injury  or  serious  physical injury  to  determine  if  the                                                                    
particular disease would qualify.                                                                                               
                                                                                                                                
9:26:57 AM                                                                                                                    
                                                                                                                                
Representative   Carpenter  asked   for  verification   that                                                                    
precedence and  caselaw would support that  type of outcome.                                                                    
He explained  that if  the legislature  passed the  bill, it                                                                    
would appear to the public that  it would only be a crime of                                                                    
assault if  the conditions were  met. He asked if  there was                                                                    
certainty it would be the outcome of the legislation.                                                                           
                                                                                                                                
Mr. Skidmore  responded that in criminal  law everything was                                                                    
based on facts and details.  He explained that civil law was                                                                    
more  difficult to  practice because  so many  laws applied.                                                                    
The statutes in  criminal law were fewer in  number, but the                                                                    
nuances  in the  facts of  each case  drove the  outcome. He                                                                    
could  not   make  promises  or   guarantees  about   how  a                                                                    
particular  case  would be  evaluated  or  what the  outcome                                                                    
would be.  He could tell  the committee that there  had been                                                                    
cases in  the past where  diseases had been  transferred and                                                                    
DOL  had looked  at  them to  determine  whether the  higher                                                                    
crime could  be charged. Sometimes  the answer was  yes, and                                                                    
other  times   the  answer  was  no   because  unfortunately                                                                    
everything was driven by the specific facts.                                                                                    
                                                                                                                                
Representative   Carpenter   WITHDREW   his   OBJECTION   to                                                                    
Amendment 1.                                                                                                                    
                                                                                                                                
There being NO further OBJECTION, Amendment 1 was ADOPTED.                                                                      
                                                                                                                                
Representative Josephson  shared that  he had  drafted three                                                                    
amendments that he would not offer.                                                                                             
                                                                                                                                
Vice-Chair  Johnston MOVED  to  REPORT CSHB  14(FIN) out  of                                                                    
committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes.                                                                                                      
                                                                                                                                
Representative   Josephson  OBJECTED   for  discussion.   He                                                                    
applauded the  sponsor for  the bill.  He believed  it would                                                                    
make Alaska safer. He detailed  that once the bill passed if                                                                    
a  person  was strangled  and  passed  out, the  perpetrator                                                                    
would  instantly be  in a  Class A  felony position  (in the                                                                    
past it  had been  necessary to  prove physical  injury). He                                                                    
believed  the bill  was  fair  to treat  the  action in  the                                                                    
Schneider  matter as  a sex  offense, given  the outrageous,                                                                    
heinous conduct that had occurred.                                                                                              
                                                                                                                                
Representative Josephson  commented on  his belief  that the                                                                    
judge's  hands  had been  tied  in  the Schneider  case.  He                                                                    
acknowledged  that the  judge could  have rejected  the plea                                                                    
deal.  He  was  concerned  with   the  fact  that  under  AS                                                                    
12.55.027, a person who had  murdered someone with malice or                                                                    
forethought, could get credit  toward a sentence pretrial if                                                                    
they were  on electronic monitoring  (EM). The bill  did not                                                                    
change that,  which did not  mean the  bill was not  a great                                                                    
step forward, it just meant  the events of Schneider will be                                                                    
hemmed in,  specifically relative to  the creation of  a new                                                                    
sex crime and in cases  where there was strangulation to the                                                                    
point   of   unconsciousness.   However,   in   many   other                                                                    
circumstances,  EM  remained  available and  still  remained                                                                    
available for the offenses in  the bill. The penalties would                                                                    
be greater.                                                                                                                     
                                                                                                                                
Co-Chair Wilson  asked Representative Josephson to  stick to                                                                    
the bill.                                                                                                                       
                                                                                                                                
Representative Josephson  agreed and reported his  intent to                                                                    
offer an  amendment at some  point in order to  resolve some                                                                    
of his concerns related to the Schneider case.                                                                                  
                                                                                                                                
9:32:22 AM                                                                                                                    
AT EASE                                                                                                                         
                                                                                                                                
9:32:57 AM                                                                                                                    
RECONVENED                                                                                                                      
                                                                                                                                
Vice-Chair  Johnston restated  her motion  to move  the bill                                                                    
from committee.                                                                                                                 
                                                                                                                                
There being NO further  OBJECTION, CSHB 14(FIN) was REPORTED                                                                    
out of  committee with a  "do pass" recommendation  and with                                                                    
two new  indeterminate fiscal notes  from the  Department of                                                                    
Administration; three  previously published zero  notes: FN1                                                                    
(DHS), FN2  (LAW), FN3 (DPS);  and one  previously published                                                                    
fiscal impact note: FN7 (COR).                                                                                                  
                                                                                                                                
Co-Chair  Wilson reviewed  the  schedule  for the  following                                                                    
meeting.                                                                                                                        
                                                                                                                                

Document Name Date/Time Subjects
HB 14 Amendment 1 Foster.pdf HFIN 4/26/2019 9:00:00 AM
HB 14
HB 16 Support letter.pdf HFIN 4/26/2019 9:00:00 AM
HB 16
HB 16 Public Testimony.pdf HFIN 4/26/2019 9:00:00 AM
HB 16