Legislature(1999 - 2000)
02/01/2000 03:44 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 288 - CHILDREN WITNESSING DOMESTIC VIOLENCE CHAIRMAN DYSON announced the next order of business as House Bill No. 288, "An Act relating to the creation of an aggravating factor for the commission of domestic violence in the physical presence of a child." Number 0295 DENISE HENDERSON, Legislative Secretary for Representative Pete Kott, Alaska State Legislature, came forward to testify. She explained this bill would add a new section to Statute 12.33.144(c)(18). At the present time, committing domestic violence in the presence of a child is not included as a determining factor in the sentencing of the perpetrator. Currently there is nothing in the Alaska Statutes that would allow judges to factor the egregiousness of the crime into the sentencing. This should be an aggravating factor in determining sentence for the crime of domestic violence. This bill would expand the list to include the special vulnerability to children. It would become a major factor in determining the severity of the crime and the resulting sentence thereof. House Bill 288 would allow the courts to consider these factors to mitigate or aggravate the severity of domestic violence when committed in the presence of children. It is Representative Kott's belief and her own that this is valid criteria for the court in rendering sentence. MS. HENDERSON went on to say the public policy that the committee is being asked to consider today is that the commission of the crime of domestic violence be included on this list of factors. She shares an interest in the welfare of children. She has seen the devastating and long-term effects that domestic violence can have on the children. She worked for the Juvenile Division of the District Attorney's Office in Albuquerque, New Mexico and unfortunately the one underlying factor that seemed to play a role in the lives of the kids that came through the system was domestic violence. Since moving to Anchorage, she had the opportunity to work with Abused Women's Aid in Crisis where she witnessed once again the devastation that domestic violence can play on children. She is also a Court Appointed Special Advocate (CASA) with the Office of Public Advocacy in Anchorage. This bill would give the court system a new tool to further the fight against domestic violence and child abuse. This bill would not only bring awareness to the trauma that children bear in witnessing domestic violence in the home, but it would be instrumental in breaking the cycle of domestic violence. REPRESENTATIVE GREEN asked if what the children are witnessing would be a felony if charged under AS 11.41. Number 0587 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came forward to answer questions. She explained that AS 11.41 addresses person crimes. The fact that this is an aggravating factor means it gives the court the discretion to raise the sentence in a particular case. It only applies to felonies to which presumptive sentencing applies, which isn't even all felonies. REPRESENTATIVE COGHILL asked if there is some significance to the age 16 and not age 18. Number 0629 MS. CARPENETI answered that age 16 is the age of consent. Many statutes dealing with children draw a line at the age of 16. The statutes address different ages for different statutory purposes. REPRESENTATIVE COGHILL asked if this proposed statute would apply if children who are 17 or 18 years old witness domestic violence. MS. CARPENETI answered the way it is written now would only apply to domestic violence in front of a child under 16. REPRESENTATIVE COGHILL asked if this could be used to put a block between parents if a youngster witnessed something and gets caught between two parents in an argument. The charge of felony is there but he wondered if the youngster could find himself in a very hard position of tipping this into a definite felony conviction. MS. CARPENETI answered that wouldn't happen because this only applies to felony offenses to which presumptive sentencing applies. It is an aggravating factor for sentencing after a person has been convicted of a crime. Number 0743 MR. GEORGE HANSEN, Dentist, Alaska Dental Society, testified via teleconference from Anchorage in favor of HB 288. The organized dentists in Alaska are interested in this bill because they are often called upon to treat the injuries to the face and/or mouth which have been caused by physical abuse. For this reason the American Dental Association (ADA) has a policy and commitment to recognize and prevent domestic abuse. It has been postulated that children witnessing abuse are prone to commit that same abuse when they are adults. It is desirable that the cycle be stopped. This bill is intended to assist only in the sentencing phase following a conviction for domestic abuse by adding to the list of aggravating factors. He knows of no opposition to this bill. He referred to the age issue and mentioned he has read material which says by the time a child is ten or twelve, his/her adult habits and thoughts are reasonably formed. He would not encourage lowering the age but would not oppose it if the age were raised to 18. CHAIRMAN DYSON told Mr. Hansen that he was impressed that the dentists' organization takes a stand on this issue. The committee took an at-ease from 3:55 p.m. to 3:56 p.m. REPRESENTATIVE COGHILL wondered if the age were not changed to 18 would the judge not have a legal precedent to put that in as an aggravator. MS. CARPENETI agreed if the child witnessing the crime is 17 or 18, the judge won't be able to apply this specific aggravating factor. A judge usually does have other aggravating factors to consider in domestic violence cases. REPRESENTATIVE KEMPLEN asked if this factor would still be applied if the child were too young to experience the impact of domestic violence. MS. HENDERSON stated the age of the child should not matter nor play a factor because the child is in danger anytime violence is present in the home. REPRESENTATIVE KEMPLEN asked if during an argument someone throws a skillet across the room would that be considered domestic violence. Number 1095 MS. CARPENETI replied it always depends on the circumstances. An aggravating factor at sentencing is something the judge can consider. It doesn't necessarily mean that the sentence will be raised because he/she finds that aggravating factor. There may be other aggravating factors; there may be mitigating factors. This legislation just gives the court more leeway in terms of fashioning a sentence appropriate to the case, and it only applies to felonies. CHAIRMAN DYSON explained when there is physical violence, not only is there danger to the child of getting hit, there is tremendous emotional impact on the child. Newborns can tell if there is anger and tension in the home, and they can tell things aren't right between their parents. There is evidence that prenatally, children are affected by the tension and/or insecurities of what goes on around them. Aside from the physical danger, there is emotional danger. That damage occurring to an infant perseveres for a significant part of his/her life. REPRESENTATIVE BRICE also commented that the level of research and understanding of emotional impact on children, newborns, infants and the unborn is becoming more and more documented, and the environment in which a child is brought up does impact the way that child acts and reacts throughout life. He would be concerned about trying to establish a minimum age. They may want to increase the age from 16 to 18. REPRESENTATIVE COGHILL indicated since most children can be emancipated at 16, he is willing to let this bill pass without amending the age. Number 1286 REPRESENTATIVE COGHILL made a motion to move HB 288 from the committee with individual recommendations. There being no objection, HB 288 moved from the House Health, Education and Social Services Committee.
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