Legislature(1999 - 2000)
02/23/2000 01:17 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 354 - SEXUAL INDUCEMENT OF A MINOR/PORNOGRAPHY CHAIRMAN KOTT announced that the next item of business would be HOUSE BILL NO. 354, "An Act relating to criminal sexual inducement of a minor, to distribution of pornography to minors, and to sex offenses." He pointed out that there was a new proposed committee substitute (CS). [The bill had been introduced at the previous meeting, but no testimony was heard other than from Ms. Garrigues, staff to Representative Brice, sponsor.] Number 1620 REPRESENTATIVE ROKEBERG made a motion to adopt as a work draft Version G [1-LS1339\G, Luckhaupt, 2/23/00]. There being no objection, it was so ordered and Version G was before the committee. Number 1650 GAYLE GARRIGUES, Staff to Representative Tom Brice, Alaska State Legislature, came forward on behalf of the sponsor. She explained that Version G basically makes three changes. The first is relatively minor, in Section 1, changing some of the ages of various participants; although the original version was consistent with the child abuse statutes, in this particular application it didn't make a lot of sense. The change in Section 2 is significant. The original bill had made a new offense called "distribution of pornography to minors"; as she and Representative Brice had heard from more and more people, however, it looked like a potential First Amendment problem. MS. GARRIGUES told members the goal was to try to stop people when they are "grooming" minors by providing pornographic materials. However, she was persuaded that it wasn't worth getting into a fight in terms of defining those and dealing with all the possible exceptions in terms of potentially pornographic but otherwise legitimate activities. Therefore, that is dealt with at the end of a case, as an aggravating factor. If a person commits one of these sex offenses and, in the process, uses these materials to "groom" the child, the court can consider that as an aggravator to use at sentencing. Ms. Garrigues pointed out that because Version G eliminates the new crime of distribution of pornography, there is no need to further amend the statutes regarding sex offenders. Therefore, Section 3 was dropped. Number 1777 REPRESENTATIVE ROKEBERG said he understands the Internet connection, but this establishes what he takes to be a new crime of inducement. He stated his understanding that sexual assault in the fourth degree is the lowest level now. He asked whether other states have an inducement statute criminalizing this type of activity. MS. GARRIGUES responded that as she understands it, other states are in various stages in terms of working on this area. The Internet is relatively recent, and the concern here is people essentially inducing and soliciting children over the Internet. She mentioned that there are a couple cases in the Fairbanks area where that has happened. REPRESENTATIVE ROKEBERG said there is no reference to that. He asked what will constitute inducement. He further asked whether it will be defined by Webster's Dictionary or is in Alaska case law. MS. GARRIGUES said she doesn't believe "induce" is a word that is so specific that it needs a definition outside of how it is commonly understood. There is no legal definition of inducement that she is aware of. For the elements of this particular offense, an adult of a certain age engages in a "course of conduct" with a person who is under a certain age, with the intent to induce or get this person to engage in the various sexual activities that are listed in Alaska's code and defined there already. It doesn't specifically refer to the Internet, however, because it is expected that people may initiate these contacts through the Internet but that the course of conduct may extend to using the telephone, the mail or paging devices, for example. Number 1887 REPRESENTATIVE ROKEBERG asked whether it is correct that a 19-year- old who has been talking to a 16-year-old about some type of sexual activity would be guilty of a class C felony. MS. GARRIGUES specified that the victim would have to be under 16 years of age. In Alaska's present code, a 19-year-old who engages in sexual relations with a 15-year-old would be guilty of sexual abuse of a minor in the second degree ("SAM 2"). REPRESENTATIVE ROKEBERG pointed out that that involves contact, whereas this just asks for it. MS. GARRIGUES agreed. REPRESENTATIVE ROKEBERG asked whether this crime would, then, be included under Megan's Law and require registration as a sexual offender in Alaska for 15 years. MS. GARRIGUES affirmed that it would fall within the sex offender registration statutes. Number 1924 REPRESENTATIVE GREEN alluded to the fact that the title, the beginning of new section AS 11.41.452, and subsection (c) call this "criminal sexual inducement," whereas the text in subsection (a) says "commits the crime of criminal sexual solicitation." He asked why that terminology is used. MS. GARRIGUES said that is a question for Legislative Legal Services, whose recommendation she had followed regarding that. She noted that Mr. Luckhaupt, the drafter, was not present. REPRESENTATIVE GREEN requested a response from Anne Carpeneti. Number 1978 ANNE CARPENETI, Assistant Attorney General, Legal Services Section- Juneau, Criminal Division, Department of Law (DOL), came forward, noting that the department has worked with the sponsor and his staff on this bill. She reported that Version G has come a long way towards addressing problems, but the DOL still has a problem with Section 1 for a couple of reasons. Bringing attention to page 1, line 7, she pointed out that "course of conduct" is not defined in Alaska's statutes, and it has proven to be problematic in other areas. For example, when working on child murder legislation the previous year, they had changed murder in the first degree from a pattern of practice of abuse to two or more acts, just because the department was never able to prove a pattern of practice of mistreating a child. MS. CARPENETI explained that the other problem, mentioned by Representative Rokeberg, is with the ladder of the level of offenses. She clarified that Alaska does have solicitation to commit sexual abuse of a minor. For sexual abuse of a minor, the underlying offense is an unclassified felony. Solicitation of that offense is a class A felony; this would bring that offense down to a class C felony. On the other hand, Alaska has sexual abuse of a minor in the fourth degree, a class A misdemeanor. Solicitation of that conduct would be a class B misdemeanor, which this bill would change to a class C felony. Ms. Carpeneti stated: So, any way you look at it, the prosecution's going to lose if it is a different level because if we charge solicitation of sexual abuse of a minor in the first degree, the defendant's going to come in and say, "This is a more specific statute; prosecute me under this one." And in the same regard, if it's solicitation to commit the lower offense, ... we're going to have to argue about where that is in terms of a penalty. Number 2068 MS. CARPENETI offered a suggestion on behalf of the DOL which she acknowledged the sponsor may not be enthusiastic about. If the purpose is to discourage "grooming" of victims over the Internet, the DOL suggests that solicitation for the offense be the same level as the offense itself. That would eliminate problems with having a different crime called "inducement." Although the header for the statute is "inducement," she explained, when proving a case the department doesn't deal with the header. The element of that would be criminal solicitation. In response to a question, she said a solicitation is similar to an attempt, but the elements involved are a little different. Number 2100 REPRESENTATIVE MURKOWSKI inquired about the difference between solicitation and inducement. MS. CARPENETI said she doesn't know, because this really is a solicitation statute. She doesn't know what "inducement" means nor what the drafter meant when he decided to name this "criminal sexual inducement" and then define the elements as solicitation. REPRESENTATIVE GREEN asked: If that is the evidence used, why not call it that? MS. CARPENETI agreed but surmised that perhaps the drafter was thinking that because there is solicitation in the statutes already, that would be redundant. She emphasized that she isn't sure and hasn't spoken to the drafter about this in particular. She said she doesn't think Alaska has a definition of inducement, but recalled that Ms. Garrigues had said perhaps it isn't needed because it isn't in the body of the statute anyway. "But I do think we ought to think long and hard before we adopt language that includes 'course of conduct' without a definition, because we've already had problems with it," Ms. Carpeneti cautioned. Number 2162 REPRESENTATIVE GREEN asked whether there is anything in Alaska's criminal statutes for enticing over the Internet or using some electronic method. He suggested perhaps this could be included along with other so-called enticements. MS. CARPENETI answered that she doesn't think there is a specific provision, indicating that is, to her belief, the reason for this bill. However, there is a solicitation statute. Ms. Carpeneti offered a draft amendment, which read as follows [original capitalization and punctuation provided]: *Sec. 1. AS 11.31.110(c) is amended to read: (c) Except as provided in (e) of this section, solicitation [SOLICITATION] IS (1) an unclassified felony if the crime solicited is murder in the first degree; (2) a class A if the crime solicited is an unclassified felony other than murder in the first degree; (3) a class B felony if the crime solicited is a class A felony; (4) a class C felony if the crime solicited is a class B felony: (5) a class A misdemeanor if the crime solicited is a class C felony; (6) a class B misdemeanor if the crime solicited is a class A or class B misdemeanor. *Sec. 2. AS 11.31.110 is amended by adding a new section to read: (e) If the crime solicited is sexual abuse of a minor under AS 11.41.434 - 11.41.440, or unlawful exploitation of a minor under AS 11.41.455, solicitation to commit the crime is the same classification as the crime solicited if the person uses a computer, computer system, computer program, computer network, or any part of a computer system or network in the commission of the offense. MS. CARPENETI explained that the proposed amendment provides that if a person solicits over the Internet and uses a computer, the level of offense is the same as for the completed offense. REPRESENTATIVE GREEN said that makes sense. Number 2233 CHAIRMAN KOTT asked whether Ms. Carpeneti had provided this to the sponsor and whether the sponsor and his staff had had an opportunity to comment. MS. CARPENETI said they had talked a little bit, but had missed each other that morning. CHAIRMAN KOTT commented that it seems to work quite a bit better, if that is the intent of the sponsor. Number 2245 REPRESENTATIVE MURKOWSKI asked what exactly "unlawful exploitation of a minor" is. MS. CARPENETI answered that unlawful exploitation is inducing a child to participate in sexual acts that are filmed or photographed, for example. REPRESENTATIVE MURKOWSKI voiced her understanding that it wouldn't go to the concern here that one would have solicited someone over the Internet. [After Ms. Carpeneti requested clarification, Representative Murkowski looked at the statutes.] Number 2296 MS. GARRIGUES spoke up, saying that adding the definition to unlawful exploitation simply broadens the sorts of behavior that they are looking at, making it a longer list. She stated, "We saying they're inducing somebody to ask them to have sexual relations with you, either penetration or contact - that's defined - or you're inducing them ... or asking them to engage in these other sorts of sexual behaviors." MS. GARRIGUES responded to Ms. Carpeneti's testimony by saying "course of conduct" is a phrase used in the stalking statutes for a number of years, and that was how the stalking statutes were originally defined. She herself isn't aware of a great deal of difficulty with that, and juries seem to be able to deal with it. Ms. Garrigues acknowledged that Ms. Carpeneti, having a statewide view, may have different information. MS. GARRIGUES next addressed Ms. Carpeneti's comments about the ladder of levels of offenses. Mentioning that sexual abuse of a minor in the fourth degree ("SAM 4") is a class A misdemeanor, she pointed out that one definition for that offense is if somebody in a position of authority has sexual relations with somebody who is 17 or 18 years of age; that clearly wouldn't apply here because this bill applies to minors under the age of 16. The other definition of sexual abuse of a minor in the fourth degree is if somebody under 16 years of age engages in relations with somebody younger than 13; that wouldn't apply here either. Ms. Garrigues contended that it wouldn't foul up the hierarchy. MS. GARRIGUES turned attention to the suggestion to equalize the offense and the solicitation of it. She reported that she had discussed it with Representative Brice the previous day, then stated: It was our sense that it just didn't fit right that you would say that a person who attempted or induced a child over the Internet committed a crime that was the same offense as somebody who actually committed that offense, which is what I understand the department is recommending. ... Yes, it's bad that they're doing it over the Internet, but it was not our sense that that somehow made it as serious as the completed offense of sexual abuse. So that was why we rejected the Department of Law's recommendation. Number 2402 MS. CARPENETI responded that Ms. Garrigues is correct that the bill wouldn't apply to sexual abuse of a minor in the fourth degree. However, it would apply to sexual abuse of a minor in the third degree, which is a class C felony now, and for which solicitation of that offense is a class A misdemeanor under current law. It would also apply to the more serious offenses, bringing down the penalty for those. Ms. Carpeneti acknowledged that it is a tough problem. The rationale is that people who "surf" the Internet have a huge number of vulnerable [potential] victims; she believes that is the problem they are all trying to reach, but figuring out the best way to do so is not easy. [REPRESENTATIVE GREEN confirmed with Robert Buttcane, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, who was on teleconference, that he had heard the discussion. A copy of Version G was faxed to Mr. Buttcane. When asked about the effects on the levels of offenses, Mr. Buttcane deferred to Ms. Carpeneti, saying it is a legal question.] TAPE 00-18, SIDE B CHAIRMAN KOTT asked whether there were further questions, noting that nobody else was signed up to testify. Number 0059 REPRESENTATIVE ROKEBERG pointed out that AS 11.41.436, sexual abuse of a minor in the second degree, uses the word "induces." He read, in part, from subsection (a): "An offender commits the crime of sexual abuse of a minor in the second degree if ... (4) being 16 years of age or older, the offender aids, induces, causes, or encourages a person who is under 16 years of age to engage in conduct ...." He suggested that the way the bill is, it is kind of redundant. CHAIRMAN KOTT agreed there could be some redundancy. He closed public testimony on HB 354, then announced the intent to hold this over and work with the sponsor on perhaps incorporating the DOL's suggestions. [HB 354 was held over.]
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