Legislature(1999 - 2000)
04/09/1999 01:05 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 34 - REPORTING CRIMES AGAINST CHILDREN
CHAIRMAN KOTT announced the next order of business is HB 34, "An
Act relating to the crime of misprision of a crime against a
child."
CHAIRMAN KOTT indicated there is a proposed committee substitute
and called for a motion to adopt it.
Number 2174
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed
committee substitute for HB 34 [1-LS0241\G, Luckhaupt, 4/8/99].
There being no objection, it was so moved.
CHAIRMAN KOTT called on Representative Dyson, sponsor of the bill;
and, Mr. Gerald Luckhaupt, drafter of the bill.
Number 2245
REPRESENTATIVE FRED DYSON, Alaska State Legislature, thanked the
committee members for their diligent efforts. He took the concerns
of the committee members and the result is the proposed committee
substitute.
Number 2275
REPRESENTATIVE ROKEBERG asked Mr. Luckhaupt whether the phrase,
"punishable as a felony", encompasses sexual assault.
GERALD LUCKAUPT, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, replied there are only three forms of
sexual assault and they are all felonies. Sexual assault is
nonconsensual.
REPRESENTATIVE ROKEBERG noted he is confusing it with sexual abuse
of a minor.
MR. LUCKAUPT said there are five forms of sexual abuse of a minor,
and it doesn't look at consent.
Number 2307
REPRESENTATIVE GREEN referred to page 1, line 9, of the bill and
asked Mr. Luckaupt to explain the phrase, "by another".
MR. LUCKAUPT replied it means by a person other than the person who
committed the crime. It alleviates the concerns of incriminating
one's self.
REPRESENTATIVE GREEN noted the phrase, "by another", is legal
drafting terminology.
Number 2355
REPRESENTATIVE MURKOWSKI referred to the affirmative defense and
noted that witnessing a sexual assault is after the fact. She is
troubled by the word "and" on page 2, line 5, of the bill.
Number 2384
REPRESENTATIVE DYSON said according to her logic she would also
have a problem with the phrase, "or an attempt to commit one of
those crimes", on page 1, starting on line 8, of the bill. He
wants to stop the crime. He stopped a kidnapping that he thought
was going to end up in sexual assault. He got right in the middle,
which is what he wants folks to do.
Number 2430
MR. LUCKHAUPT said, according to the committee's discussion
yesterday, if a person tried to stop an offense and failed of which
there was a death, the committee didn't want that person to walk
away without reporting it. In addition, if a person attempts to
stop a sexual assault, there is sexual contact and penetration. It
can conceivably be stopped before it is completed.
TAPE 99-26, SIDE B
Number 0001
MR. LUCKHAUPT continued. That is why he tied it into a two-step
process.
Number 0023
REPRESENTATIVE CROFT asked Representative Dyson whether he reported
the crime that he stopped.
REPRESENTATIVE DYSON replied the police showed up and put all the
parties in jail.
Number 0039
REPRESENTATIVE CROFT said, if a person stops a murder, that person
hasn't stopped an attempted murder. He asked whether that person
would be obligated to report it.
REPRESENTATIVE DYSON replied yes.
Number 0062
REPRESENTATIVE ROKEBERG said there almost has to have the language
"stopped" or else a person could be an accessory to a crime.
REPRESENTATIVE DYSON said, "That is excellent insight."
REPRESENTATIVE ROKEBERG said it still troubles him, however.
MR. LUCKHAUPT said it is more complicated than that. They are two
different concepts.
Number 0137
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, testified in
Juneau. In working with the sponsor, it was the department's
intent to keep it as limited as possible because of all the
problems that have been discussed in this committee. She noted,
yesterday, it was just murder and kidnapping and today it is sexual
assault and felonious assaults. The problem is, the victim
specifically needs to be excluded from requiring to testify. This
bill does not do that. For example, rape and assault would be
required to be reported by the victim at this point when it ought
to be the choice of a victim, even though the victim is a child.
She would prefer to leave it at murder and kidnapping so that the
problems discussed would be limited to those particular offenses.
The language, "by another", is for the person who commits the
crime. It does not require the defendant to report the crime.
This doesn't exclude the victims from having the responsibility to
report the crime.
Number 0197
REPRESENTATIVE GREEN said prior testimony indicated that the
phrase, "by another", was someone other than the victim.
MS. CARPENETI said the person who is the victim is also a witness
to the crime. The phrase, "by another", excludes the
responsibility of the perpetrator from reporting a crime.
Number 0221
REPRESENTATIVE DYSON suggested inserting the phrase, "by another
not the victim", on page 1, line 9, of the bill.
MS. CARPENETI suggested inserting the phrase, "a person other than
the victim", on page 1, line 6, of the bill.
Number 0241
REPRESENTATIVE CROFT said it poses a problem that needs to be
fixed.
REPRESENTATIVE DYSON said many murder victims would not be charged.
Number 0264
MR. LUCKHAUPT said that concern has been with the bill since it was
introduced in the House. It was felt by Legislative Legal and
Research Services [Legislative Affairs Agency] that there was
enough distinction between a person and a child that the victim has
to be a child. Senate Bill 5 deals with crimes against anyone, not
just children. The language reads in the first line, "A person,
other than a victim,...". It wouldn't hurt to put that in here.
It would make it easier for a prosecutor to charge a 15-year-old
victim of sexual assault or kidnapping for not reporting an
offense. He doesn't think that would happen, but to ensure that it
doesn't happen he agreed with inserting the language suggested by
Ms. Carpeneti on line 6.
Number 0348
REPRESENTATIVE DYSON said it would do no harm.
Number 0361
REPRESENTATIVE GREEN wondered whether anybody would care that the
phrase, "by another", voids a perpetrator. In other words, would
anybody care that a perpetrator would be subject to a class A
misdemeanor?
Number 0384
REPRESENTATIVE DYSON said that is a marvelous point, but there are
Fifth Amendment implications of self-incrimination.
Number 0391
MR. LUCKHAUPT said he doesn't think the state could compel a
perpetrator to come forward as a witness against himself. The
federal misprision statute applied against defenders. It's easier
to say that a crime committed by someone else would avoid
prosecution. The statute is clearly constitutional in that it only
applies to persons other than the person doing the crime. At
least, it's constitutional in the aspect that it's not going to
compel someone to be a witness against himself. There is a need
for the phrase, "by another"; but, adding the phrase to page 1,
line 6, of the bill, "A person, other than the victim", doesn't
cause any harm.
Number 0493
REPRESENTATIVE GREEN made a motion to insert the phrase, "other
than the victim", on line 6 between "person" and "commits". There
being no objection, it was so moved.
Number 0513
REPRESENTATIVE ROKEBERG asked whether the phrase, "by another",
should remain on line 9.
CHAIRMAN KOTT indicated yes.
Number 0530
REPRESENTATIVE CROFT said the current draft is excellent and avoids
a lot of the pitfalls. He wondered whether "attempt" should be in
the bill. If a person only sees the beginning of a crime, should
that person report it. In addition, if a person acts to stop a
crime, by definition, that person hasn't stopped the attempt, and
should the affirmative defense apply to reporting it.
Number 0600
REPRESENTATIVE DYSON stated, if the committee comes up with a
better way to handle that, he noted he would work hard to include
it.
Number 0616
CHAIRMAN KOTT asked whether a person would be covered with an
affirmative defense for witnessing a child being dragged into a car
which is later determined to be a kidnapping.
Number 0635
MR. LUCKHAUPT said, if a person sees a 10-year-old child being
dragged into a car and it reasonably appears to be a kidnapping,
that person would have a duty to report it to the police. That
person could also choose to intervene. It was Representative
Dyson's desire to add elements to the offense of reporting or
aiding the victim. At this point, a witness has to call the police
and if that witness doesn't, he has committed a crime. There is an
affirmative defense if that witness wasn't able to call the police
out of fear for his own safety, of another person, or of the
failure to stop the commission of a crime.
Number 0716
REPRESENTATIVE CROFT said the language, "knows or reasonably should
know", is used to determine if the person is a child or not, but it
is not used to determine if there is a potential murder or
kidnapping. He suggested including that language in the witnessing
section thereby putting that same level of knowledge there as well.
It would read, "...if the person witnesses what the person knows or
reasonably should know is a murder, kidnapping,..."
Number 0776
REPRESENTATIVE DYSON said he assumed that ignorance would be a
positive defense.
REPRESENTATIVE CROFT said he is not sure ignorance would be a
positive defense.
MR. LUCKHAUPT said he doesn't see why it wouldn't be available. A
jury would be instructed to look at whether or not a person would
know that he was witnessing a crime.
Number 0821
CHAIRMAN KOTT said from the standpoint of murder, sexual assault or
assault that is punishable as a felony, a person could determine
that there is some severe physical abuse that could lead to death.
He is troubled, however, with kidnapping. What about a child
screaming and yelling all the way to a car because that child's
parent just told him that there are no more amusement rides today?
A child yelling "help me" is pretty clear, but without that
verbalization it isn't as clear.
Number 0868
MR. LUCKHAUPT said Representative Croft's language covers that
concern and situations when a person is privy to certain facts.
The language would also assist the trier of fact or a prosecutor
deciding a charge under this offense.
Number 0958
CHAIRMAN KOTT asked Representative Dyson whether he would have any
objection to inserting that language to make it clear.
REPRESENTATIVE DYSON replied no.
Number 0972
REPRESENTATIVE CROFT made a motion to insert the language, "what
the person knows or reasonably should know is", on page 1, line 7
between "witnesses" and "a".
Number 1042
REPRESENTATIVE GREEN asked whether the language exonerates a person
who witnesses a fearsome type of scream from a child, not
necessarily a verbalization.
Number 1082
REPRESENTATIVE CROFT said, "What it gets us out of, the reasonably
should know, is the dumb and dumber situation. I mean, if it's not
you and me, assuming we're not dumb and dumber, standing there
looking at events that a reasonable person would know...You can't
say I was--I saw these things crying help, abuse, an attempted
murder, but I really didn't know what it was. I mean, you have
to--it's not just that you knew, you could say 'I didn't know,' but
a reasonable person would have known in that situation that this
would call for some reporting. I think it's pretty standard."
Number 1119
REPRESENTATIVE DYSON commented that he suspects this law would only
be applied to the flagrant cases.
CHAIRMAN KOTT asked whether there is any objection to the motion.
There being none, it was so moved.
Number 1158
REPRESENTATIVE KERTTULA asked Mr. Luckhaupt how he expects to get
an affirmative defense with an attempt. She thinks that is
impossible. It illustrates her overall problem with the bill.
It's such a moving target that it's hard to solve all the problems,
but a person could never act to stop an attempt because it is an
"attempt." She declared it should be removed from the bill. It
would create too many problems in trying to enforce it.
Number 1225
MR. LUCKHAUPT replied the availability of an affirmative defense
for merely attempting to commit a crime - a crime that is not
completed - would be difficult. It could be worded in terms of
"attempts a crime and fails to complete it." That would avail
someone with an affirmative defense in a situation of stopping an
attempt thereby preventing the completion of the attempted crime.
It's a good question and concern.
Number 1319
REPRESENTATIVE KERTTULA said she sees what Mr. Luckhaupt is saying,
but it starts to become circular, and she's not sure how it would
work.
CHAIRMAN KOTT asked Mr. Luckhaupt whether he could work with that
language and incorporate it into the bill.
Number 1404
MR. LUCKHAUPT replied, conceptually, the language could read, "or
the completion of the crime that was being attempted", after the
word "crime" on page 2, line 6, of the bill. That would give a
person an affirmative defense when witnessing an attempted crime
that is stopped before the crime is completed.
CHAIRMAN KOTT asked whether everybody understands the conceptual
amendment.
REPRESENTATIVE KERTTULA said she appreciates the work on it, but
she would feel better if attempt was removed from the bill.
CHAIRMAN KOTT asked whether there is any objection to the
conceptual amendment. There being none, it was so adopted.
Number 1597
REPRESENTATIVE ROKEBERG made a motion to move the proposed
committee substitute for HB 34 [1-LS024\G, Luckhaupt, 4/8/99], as
amended, from the committee with individual recommendations and the
attached fiscal note(s).
REPRESENTATIVE KERTTULA objected. She appreciates the intent and
effort and believes that people need to step in and do the right
thing, but there is a reason for not having laws like these, that
being confusion. Legally, she feels she has to object to the
motion.
CHAIRMAN KOTT called for a roll call vote. Representatives
Rokeberg, Murkowski, Croft and Kott voted in favor of the motion.
Representative Kerttula voted against the motion. The motion
passed by a vote of 4-1. The CSHB 34(JUD), so moved from the House
Judiciary Standing Committee.
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