Legislature(2003 - 2004)
05/04/2004 02:38 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
SB 219-OFFENSES AGAINST UNBORN CHILDREN Number 0953 CHAIR WILSON announced that the next order of business would be SENATE BILL NO. 219, "An Act relating to offenses against unborn children." REPRESENTATIVE KAPSNER asked what the next committee of referral is for SB 219 CHAIR WILSON responded the House Judiciary Standing Committee is the next committee of referral. Number 0898 SENATOR FRED DYSON, sponsor of SB 219, presented the bill and answered questions from the members. He explained that 29 other states and the federal government have passed legislation that protects unborn children. Alaska's attorney general provided him with a ruling that the federal law only applies if an unborn child is harmed during the commission of a federal crime or federal jurisdiction, he said. For example, if a crime were committed on a military base. He added that most crime that takes place in Alaska is prosecuted under state law, so this legislation puts into state law that which has become a part of federal law. Senator Dyson told the members that SB 219 goes through all of Alaska's statutes that refer to murder, manslaughter, or assault and adds the unborn child provision. SENATOR DYSON told of an incident that occurred in the 1970s where police in California got into the wrong apartment around dusk on a drug bust, and a lady came out of her bedroom carrying her Kirby vacuum cleaner and a policeman thought it was a shotgun and shot her. It killed the baby. It was found that no charges could be made on the crime against the child because there was nothing in the statutes, he explained. Senator Dyson said that the California legislature passed the fastest act, four and a half days, ever made in the state. The law made the killing of an unborn child a crime. There have been two court challenges, he added. Other states have gone on to pass similar laws. SENATOR DYSON told the members that the bill has been written carefully to exclude the killing of an unborn child during an abortion or if a child is damaged or killed during a medical procedure. There is also exclusion of a woman who kills or damages her child because of something she was doing. Senator Dyson added that he believes that is reprehensible behavior, but did not want a provision in this piece of legislation which would allow some zealots to go around trying to arrest a woman who is smoking [cigarettes] or drinking. Senator Dyson commented that some of the members have worked with him on the issue of fetal alcohol syndrome (FAS) and the idea of involuntary commitment, but this bill excludes a woman from being prosecuted for anything that she does that is legal and that damages a child. This bill has very specific language directed toward a crime against a woman who is bearing a child, he said. Number 0694 CHAIR WILSON asked Senator Dyson to clarify that this bill would only address instances of illegal activity. SENATOR DYSON replied yes, that is correct. REPRESENTATIVE KAPSNER asked if he is saying the bill addresses only federal felonies or misdemeanors. SENATOR DYSON responded that the new federal law addresses that issue. This legislation would take all of the state statutes related to murder, manslaughter, and assault charges and adds unborn child to it. He commented that the bill very much parallels federal law, but is a bit different since it is being inserted into Alaska statutes. REPRESENTATIVE GATTO posed a hypothetical example of a mother, who desperately wants her child, is speeding and is in an accident that results in the child's death. He asked if that would be considered an attack on the unborn since the mother was committing a crime. SENATOR DYSON replied that might be considered negligent homicide, and referred to language on page 2, line 21 [through 23]. CHAIR WILSON commented that it would be considered a class B felony. She said she does not know what a class B felony is. SENATOR DYSON referred to Section 6, page 5, where it outlines some sentencing guidelines. An individual convicted of first- degree murder could be sentenced to five to 99 years, second- degree murder sentence could be 10 to 99 years, second-degree murder sentence could be 20 years but not more than 99 years when the murder of the child is under 16 years old. REPRESENTATIVE KAPSNER asked if that is in addition to the penalty for committing a crime against the mother. SENATOR DYSON replied that there will be an additional charge over the penalty against the mother. Sometimes judges will let the penalty be concurrent, and sometimes it is supplemental. CHAIR WILSON asked if she could get clarification on Representative Gatto's question. If a mother is speeding and her child dies, could the mother go to prison for that crime, she asked. Number 0457 SENATOR DYSON responded that he thinks she could. REPRESENTATIVE GATTO referred to page 2, line[s 18 and 19], which says: ...recklessly causes the death of an unborn child under circumstances not amounting to murder of an unborn child. REPRESENTATIVE KAPSNER commented that taking too hot of sauna or going to a tanning salon could be considered reckless. SENATOR DYSON pointed out that on [page 2, line 31] there is language that provides that the law does not apply if anything the woman has done that is legal. Under this bill penalties would only be incurred when the mother was doing some illegal activity which results in damage to the child. REPRESENTATIVE KAPSNER commented like speeding. SENATOR DYSON said that he believes it would be very unlikely that a woman would be prosecuted in these circumstances. Number 0375 REPRESENTATIVE SEATON clarified that if a woman is speeding, there is an accident, and a subsequent miscarriage, then the woman would be guilty of manslaughter. SENATOR DYSON responded that in those circumstances it would be criminally negligent homicide. He added that this bill is structured to address a third person who assaults the mother, and in addition to the assault on her causes death or damage to the unborn child. Number 0311 CHAIR WILSON asked if it says that anywhere in the bill. Would the mother be exempt from prosecution. SENATOR DYSON replied that the mother is exempt if it is a legal abortion, medical procedure, or legal activity on her part. CHAIR WILSON asked what the difference in penalty is between manslaughter and criminally negligent homicide. One is a class A felony and the other is a class B felony. SENATOR DYSON pointed out that if a mother is speeding and as a result of an accident kills her three-year-old child, it is an illegal activity. This bill says it is a crime regardless of whether the child is born or unborn. A wanted human being is still being killed, he said. An unwanted child is in a free fire zone at this time in our culture, Senator Dyson added. REPRESENTATIVE GATTO said that he does not want to penalize a mother who in the case of an accident kills her child. However, according to the statute it would be required because the woman committed manslaughter. SENATOR DYSON replied that it is not manslaughter unless it is intentional. It would be considered negligence, he said. The point is that the negligence that kills an unborn child under this law would be the same penalty as killing a child after birth. CHAIR WILSON asked what the difference in penalty would be. If a mother only had a three year old in the car and the child died, what would be the penalty, she asked. SENATOR DYSON replied that she could be charged with negligent homicide. In response to Chair Wilson request for clarification, he said it is possible the mother would be sent to prison. Number 0057 WES KELLER, Staff to Senator Fred Dyson, Alaska State Legislature, testified on SB 219 and answered question from the committee. He told the members that the criminally negligent homicide standard carries a high standard of intent. That is why the members do not hear of charges being brought against parents in cases of a death of a child, he added. He reiterated that there must be criminal intent involved. TAPE 04-40, SIDE A Number 0001 REPRESENTATIVE SEATON referred to page 3, line 26. He asked for clarification that this provision would exclude alcohol or tobacco, but would include marijuana or prescription medicines that the mother did not have a prescription for. Representative Seaton asked if using illegal substances or medication without a prescription that causes the death or injury of an unborn child would be considered a class C felony. SENATOR DYSON agreed that is correct. REPRESENTATIVE GATTO pointed out that all of the law preceding page 2, line 24, is modified by applicability. The only charges that would be brought against the mother is illegal activity that resulted in the death or injury of the unborn child. He said that as Representative Seaton pointed out alcohol is not illegal even though it conceivably has the worst possible effect on unborn children. He told the members that he would love to make alcohol consumption during pregnancy illegal. Number 0145 CHAIR WILSON preferenced her comment by saying that she does not know what current law dictates. She posed a hypothetical case of a mother who uses cocaine and because of that use the baby dies or is born cocaine-dependent, has seizures, and dies. She asked what the effect of this bill will be in a case like that. Number 0225 SENATOR DYSON replied that under current law he believes that because the state has not recognized the personhood of an unborn child then any actions against an unborn child have no penalty. That is the reason so many states and the federal government have provided for this kind of protection for a wanted unborn child, he explained. SENATOR DYSON commented in response to Representative Gatto's earlier statement, that he held one of his foster children moments after it was born with a pulse rate of 235 from cocaine. He shared that his daughter has adopted that child. Senator Dyson said he also has a child who suffers from Fetal Alcohol Affects which is a lifelong struggle. Senator Dyson told the members that for the past eight years he thought very seriously about these issues. He said as the members know, there are now some involuntary commitment procedures in place for those who are in danger of harming themselves or others. Now there are hundreds of lives that are being saved by getting those folks in front of a magistrates for involuntary commitment, he added. He told the committee that there is one woman in Alaska that has had nine full-blown FAS kids in a row. The state will spend an average of $1 million on every one of those kids by the time they are 18 years old, Senator Dyson commented. It is a huge problem, he acknowledged, but chose not to address that in this bill. Senator Dyson told the committee it is an issue he cares very deeply about. Number 0347 REPRESENTATIVE CISSNA commented that this body has a difficult time addressing the needs of children who are born. She asked what the motivation is to focus on this, and how does this solve a problem. Many problems are due to the fact that the state does not provide the services that are needed, she said. SENATOR DYSON responded that he rejects the line of logic that says this should not be done because the legislature is not doing all it can and should do in other areas. Much more should be done in other areas, he agreed. REPRESENTATIVE CISSNA asked whom the state is trying to get in this legislation. SENATOR DYSON replied that this legislation is intended to establish that the killing of a wanted child is the wrong thing to do. He told Representative Cissna that if that concept is troublesome to her, he cannot help her. Number 0435 REPRESENTATIVE CISSNA responded that the term unborn child is inaccurate. It is a fetus, she said. SENATOR DYSON told the committee that it has been 50 years since he took Latin, but he recalls that the term "fetus" in Latin means "unborn child." Taking a human being and dehumanizing it and denigrating it by using different words to describe it is part of the strategy of those who have oppressed people down through the ages, he said. He reiterated that is a strategy used to deny someone protection that is given to everyone else under the law, he explained. REPRESENTATIVE CISSNA stated that Senator Dyson has gone over the line. CHAIR WILSON asked the members to remain calm. Number 0510 REPRESENTATIVE GATTO commented to Representative Cissna that he has wrestled with the same issue about an unborn child that troubles her. He questioned when a child should be recognized as a human being. Should it only occur after the child comes out of the birth canal, he asked. It is hard to draw the line, Representative Gatto stated. CHAIR WILSON asked the members to restrict discussion to the issues of the bill. She said she is sure the issue of when life begins will not be settled here. Chair Wilson asked the members to focus on the intent of the bill where a crime is committed and as a result an unborn baby is killed, and the individual who committed the crime needs to be punished for it. She asked if there are any unintended consequences that need to be examined. Number 0615 REPRESENTATIVE COGHILL commented that it has been determined that protection of certain species of animals is important. He told the members that it is strange to him that human beings would not be included. Representative Coghill applauds the efforts of Senator Dyson in putting this legislation forth. It is important to define what it valued in our society. REPRESENTATIVE COGHILL moved to report CSSB 219(JUD)am, 23- LS1116\I.A, out of committee with individual recommendations and the accompanying fiscal notes. Number 0684 REPRESENTATIVE CISSNA objected. She told the members that many words are used that meant something different in the language of its origin and that now means something very different. An act relating to offenses against a fetus is the beginning of a discussion. Representative Cissna stated that the people she represents see this as an attack on women and choices. She told the members that she adores children and cares for children just as the sponsor does. This bill is an assault on women's right to choose, she stated. SENATOR DYSON apologized to Representative Cissna. He told the members that he knows her and knows how caring she is. Senator Dyson said he reacted in response to previous testimony he has heard on the same line of thought, and responded with more vigor than was necessary. He reiterated his apology to Representative Cissna and said that she has been a good caring example to all who know her. SENATOR DYSON clarified that this bill is designed to offer some protection to unborn children. There was some implication that this is intended to undo the Roe v. Wade decision. He explained that he has a half a dozen legal decisions from state supreme courts and a couple of legal scholars which say this law will not have any impact on that decision. Senator Dyson offered to make those decisions available to the members. This legislation will not be used to undo Roe v. Wade, he stated. CHAIR WILSON explained that she believes the problem occurred when there was a misstatement made when Senator Dyson responded to Representative Cissna's question. Senator Dyson referred to "unwanted children" in his response, however, Chair Wilson said, she believes he intended to say "wanted children." SENATOR DYSON replied that is possible. Number 0919 KAREN VOSBURGH, Executive Director, Alaska Right to Life, testified in support of SB 219. She told the members that she not only speaks for herself but for the 50,000 pro-life people in her database. She thanked Senator Dyson for his work on this legislation. Ms. Vosburgh explained that she has sent Senator Dyson over 1,000 [signatures] of individuals who have signed petitions supporting this legislation, and has another 200 [signatures] that she as not yet forwarded to him. In response to Representative Cissna's comment that there are a lot of people in her district that are pro-choice, she shared that Alaska Right to Life's data base shows 691 people in district 22 [Representative Cissna's district] that are pro-life. Number 0979 MS. VOSBURGH said the federal Unborn Victims of Violence Act was signed into law in April 1, 2004. The Unborn Victims of Violence Act recognizes that when criminal attacks or injures a pregnant woman and injures or kills both her and her unborn child, that crime has claimed two human victims. Prior to the enactment of this law an unborn child was not recognized as a victim with respect to violent crimes. As of March 31, 2004, 31 states now have laws where homicide charges can be brought against an individual for the unlawful killing of an unborn child or fetus in a state crime, she said. Ms. Vosburgh explained that it is well established that unborn victims laws or fetal homicide laws do not conflict with the U.S. Supreme Court's pro-abortion decree in Roe v. Wade. The state laws mentioned above have no effect on legal abortion. Criminal defendants have brought many legal challenges to the states' unborn victim laws based on Roe v. Wade and other constitutional arguments, but all such challenges have been rejected by state and federal courts, she said. She offered to fax copies of those decisions to the committee. MS. VOSBURGH told the members that in U.S. Congress some opponents objected to the bill's [Unborn Victims of Violence Act] recognition of the child in utero as a member of the human family. Yet in July 25, 2000 the U.S. House of Representatives passed on a vote of 417 to 0 a bill that contained the same definition of a child in utero, and that embodies the same basic legal principle, Ms. Vosburgh stated. That bill, the Innocent Child Protection Act, says that no state or federal authority may carryout a death sentence on a woman while she carries a child in utero. A child in utero means a member of the species homosapiens at any stage of development that is carried in the womb. MS. VOSBURGH told the members that a May 2003 Newsweek poll found that 84 percent of Americans believe that if both a pregnant mother and unborn baby are murdered the offender should be charged with two counts of murder, not just one. The law Unborn Victims of Violence Act and the single victim amendment are being considered in Congress. Sharon Rocha, whose daughter Laci and unborn grandson, Connor, were murdered, wrote: ...that adoption of such a single victim amendment would be a painful blow to those like me, who are left alive after a two victim crime because Congress would be saying that Connor and other innocent unborn victims like him are not really victims at all. Our grandson did live, he had a name, he was loved, and his life was violently taken from him. MS. VOSBURGH summarized that what Sharon Rocha said was very profound. Number 1165 CAREN ROBINSON, Alaska Women's Lobby, testified on SB 219 and answered questions from the members. The focus of the Alaska Women's Lobby is to promote the advancement and defense of interests and rights of women, children, and families of Alaska. She said that she knows that some of the most important policy decisions are made in the last days of the session and asked the members to think long and hard about this policy decision. The Alaska Women's Lobby supports the right for a woman to have a family and any criminal act that robs her of a hope for a future child is tragic and intolerable. Ms. Robinson said that there is no question that committing violence against a pregnant woman is serious crime and it deserves a serious punishment. Those who have worked in the field know that domestic violence often begins or gets worse when a woman is pregnant. The leading cause of death during pregnancy is homicide. Yet SB 219 does nothing to protect women from such violence, nor does it impose more severe punishment for committing violence against a pregnant woman regardless of the harm to the baby she is carrying. MS. ROBINSON pointed out that right now it is a misdemeanor to beat a woman, pregnant or not. She urged the members to provide real solutions to problems of violence against pregnant women. The only way to protect an unborn victim of violence is to protect the mother. Number 1264 MS. ROBINSON provided a case scenario that she asked the members to think about. There is a situation where a young woman is married and thinks she is pregnant. She does her own pregnancy test. She has a young husband who has been violent before, but the police have never been called. She waits a week, goes and does another pregnancy test herself and finds that she is pregnant. She tells her husband, who then goes in a rage, beats her, kicks her in the stomach and she calls the police, who come and arrest him on a misdemeanor charge. She goes to the shelter that night and has a miscarriage. [Under this bill] he would be charged with murder. She urged the members to think about the policy decision they are making. Ms. Robinson said she thinks it is important to get the Department of Law or others to come over and talk about the serious ramifications of this bill. There needs to be enhancement [of protections] against pregnant women who get beaten primarily by their husbands or partners, she said. Number 1320 REPRESENTATIVE WOLF pointed to page 3, lines 14 and 15 which says: (1) by words or other conduct intentionally places a pregnant woman in fear of death of her unborn child; or REPRESENTATIVE WOLF said that in the scenario Ms. Robinson described if a husband never lays a hand on his wife, however, he tells her he wants her to have an abortion, he can be charged with a class A misdemeanor. He said he is troubled by that language. Number 1419 REPRESENTATIVE GATTO commented that he was very interested in what Ms. Robinson was saying. He said he was not clear whether she was suggesting including the same penalties against the unborn and make it equal for the mother. Or is her intention to reduce penalties for the unborn and make it equal for the mother. MS. ROBINSON said she believes it is important to enhance penalties against those who beat pregnant women, and enhanced sentencing in domestic violence. REPRESENTATIVE GATTO surmised that Ms. Robinson would like to see a separate bill that increases penalties for abused women. MS. ROBINSON commented that she was saying there needs to be enhanced penalties with respect to pregnant women. The perspective that is being taken in SB 219 is the wrong way to get there, she said. Unfortunately, it is very common for this kind of crime to occur as a result of domestic violence and it is usually the husband or boy friend who commits the crime. Number 1515 REPRESENTATIVE COGHILL agreed that there are some good legal questions. He said he believes Representative Wolf concern with respect to some of the language should be addressed. He recommended that the committee allow the House Judiciary Standing Committee address these point. He said he would like to vote on this bill. Number 1541 REPRESENTATIVE SEATON said that other than the problem Representative Wolf identified in the language, all of the other problems with the bill are addressed with the language on page 3, line[s] 26 [and 27] which says: (3) are otherwise legal that are committed by a pregnant woman against herself or her unborn child. REPRESENTATIVE SEATON suggested the House Judiciary Standing Committee address this problem with respect to the scenario of a pregnant woman who is speeding or not speeding and what happens. The same wording on the bottom of page 2 could also be reviewed and consideration should be given to removing those words so that there are no unintended consequences, he added. There would not have to be very many women sent to prison for something that is unintended to distort the purpose of the bill, Representative Seaton stated. Number 1629 A roll call vote was taken. Representatives Coghill, Seaton, Gatto, Wolf, and Wilson voted in favor of CSSB 219(JUD)am. Representative Cissna voted against it. Therefore, CSSB 219(JUD)am was reported out of the House Health, Education and Social Services Standing Committee by a vote of 5-1. CHAIR WILSON asked Senator Dyson to look at the concerns mentioned by the members and talk with the House Judiciary Standing Committee chairman to ensure no unintended consequences occur. REPRESENTATIVE WOLF also asked for Senator Dyson to look closely at the language he pointed out. SENATOR DYSON thanked the committee. He commented that Senator Guess and he have worked together to try to increase the penalties for violence against women and domestic violence. However, those changes would not fit under this title and there were not enough votes [in the other body] for a title change, he explained. Senator Guess and he have agreed to work on this issue during the interim and bring back a bill on it next year, he said.
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