Legislature(2005 - 2006)CAPITOL 120
05/06/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB135 | |
| SB130 | |
| SB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 135 | ||
| = | SB 132 | ||
| = | SB 130 | ||
| + | TELECONFERENCED |
SB 135 - ASSAULT & CUSTODIAL INTERFERENCE 1:44:50 PM CHAIR McGUIRE announced that the first order of business would be CS FOR SENATE BILL NO. 135(JUD)(efd am), "An Act relating to the crimes of assault and custodial interference; and providing for an effective date." JASON HOOLEY, Staff to Senator Fred Dyson, Senate Health, Education and Social Services Standing Committee, Alaska State Legislature, presented SB 135 on behalf of the sponsor, Senator Dyson. He relayed that the concept of SB 135 was brought to the sponsor by the Criminal Division, Department of Law, in response to a couple of Alaska Court of Appeals cases in which the defendants escaped being held accountable for their actions. The bill addresses two crimes: assault and custodial interference. MR. HOOLEY explained that currently an adult person commits the crime of assault in the third degree if he/she recklessly causes injury to a child under 10 years of age and the injury reasonably requires medical attention. The bill would modify that language such that the crime of assault in the third degree would apply in instances where the injury would cause a reasonable caregiver to seek medical attention from a health care professional in the form of diagnosis or treatment. He also explained that Section 2 of the bill would add a new subsection to AS 11.41.330 such that if a noncustodial parent takes or holds a child without proper permission or authority, he/she cannot claim the affirmative defense of necessity under AS 11.81.320 unless he/she releases the child within the shorter of either 24 hours or the time necessary to report to a peace officer or social service agency that the child has been abused, neglected, or is in eminent physical danger. REPRESENTATIVE GARA, referring to the proposed change regarding custodial interference, asked for a description of current law. 1:47:01 PM DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that it is the DOL's view that there really is no affirmative defense of necessity in a custodial interference case. In Perrin v. State, however, the Alaska Court of Appeals created a form of an affirmative defense for situations in which a parent takes a child and then later claims that he/she took the child because he/she thought that the child was being abused or neglected by the custodial parent. In Perrin, he opined, there was no evidence that the child was being abused or neglected, and that presumably the claim of such was just an attempt to get custody of the child. After one court-approved visitation, the defendant took his child and left the state, changing his appearance and name. The defendant was gone from the state for over three months, and when he was finally caught by authorities, he argued that he only took the child because he felt that the child was being neglected. MR. GUANELI said that the DOL doesn't think that such an argument ought to be what state policy provides for, and thinks that such a defense should not be tolerated. He then described the language change being proposed in Section 2 of the bill, adding his belief that if a person is really concerned about the health and welfare of a child, then he/she should speak to the authorities about it or take the matter to court. 1:50:20 PM REPRESENTATIVE GARA, after offering his understanding of how the affirmative defense of necessity currently works and how the proposed change would work, opined that the proposed change doesn't seem to be a good policy unless the current system is being abused, particularly given how hard it is to prove affirmative defense of necessity to a jury. MR. GUANELI suggested that the policy decision for the legislature to make is whether "these kinds of allegations," made without evidence, warrant turning a criminal trial into a re-litigation of all the issues that have already been decided with regard to a child custody matter. He opined that doing such would be improper. He offered his belief that if there really is evidence of abuse or neglect, a peace officer or social service agency is going to take action. REPRESENTATIVE GARA referred to an Anchorage newspaper article which he said illustrates that 40 percent of all child abuse cases have been "sitting at the Anchorage Police Department (APD) for close to a year." Therefore, he said he is concerned with the idea that it's a crime to take child away from an abusive situation when no one responds to requests for help. 1:53:53 PM MR. GUANELI, in response to a question, said that the defendant in the Perrin case was convicted without being allowed to present evidence to the jury, and the Alaska Court of Appeals ruled that the defendant ought to have been allowed do so. He offered his belief that the question before the committee is whether state policy should allow child custody matters to be litigated in a criminal court. REPRESENTATIVE ANDERSON asked Representative Gara whether he would be amenable to changing the timeframe proposed AS 11.41.330(c)(1) from 24 hours to 48 hours. REPRESENTATIVE GARA indicated that he would be, though he also indicated that he would be amenable to having an affirmative defense of necessity not be accepted in situations where the case isn't reported to a peace officer or social service agency within "a reasonably necessary amount of time". He characterized "24 hours" as an arbitrary timeframe. MR. GUANELI predicted that the question would then become what amount of time would be considered reasonably necessary, and that there may be jurors who would find the timeframe of several months, as occurred in the Perrin case, to be "reasonably necessary." He relayed that he has received many calls from custodial parents saying that their children have been taken away and have been missing for months, and that it is heartbreaking to have to say to them that nothing can be done until the children are found. Then, when they are found, to have the person who took them use the affirmative defense of necessity by claiming in court that the children were neglected or abused, even though there is no evidence to support such a claim, is a shame and denies a custodial parent his/her court- granted custodial rights. Mr. Guaneli concluded by characterizing the change proposed via SB 135 as a reasonable one. 1:57:44 PM REPRESENTATIVE GARA reiterated that an affirmative defense of necessity is difficult to prove - the courts require a specifically high burden of proof before allowing one to offer such a defense. He said he doesn't buy the argument that there might be some jurors who could consider a few months to be a reasonably necessary amount of time, adding that he doesn't have any fear that such will occur. He again characterized "24 hours" as an arbitrary timeframe. REPRESENTATIVE GRUENBERG mentioned that he has been involved in cases wherein a noncustodial parent has taken the children and never returned or has taken the children and then killed them before committing suicide. He offered his understanding that at least in Alaska one can obtain an ex parte domestic violence protective order, giving one emergency custody of a child. MR. GUANELI concurred. REPRESENTATIVE GRUENBERG predicted that allowing a person a 48- hour "head start" may make it impossible to find him/her and the children he/she took. 2:01:19 PM CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on SB 135. REPRESENTATIVE GARA, after offering a hypothetical example of a situation for which Section 2 of the bill would apply, made a motion to adopt Conceptual Amendment 1, to delete the language on page 2, line 18, and to then stipulate the timeframe to be that which is reasonably necessary. He again characterized the 24-hour timeframe as arbitrary and opined that juries will see through an illegitimate affirmative defense of necessity. REPRESENTATIVE ANDERSON objected. He indicated a preference for keeping the language in Section 2 as is. A roll call vote was taken. Representative Gara voted in favor of Conceptual Amendment 1. Representatives McGuire, Anderson, Coghill, Dahlstrom, and Gruenberg voted against it. Therefore, Conceptual Amendment 1 failed by a vote of 1-5. 2:04:47 PM CHAIR McGUIRE, remarking that she understands Representative Gara's concern, said she would like to receive an update next year from the department regarding whether the proposed language actually addresses the perceived problem or whether it instead causes more harm. 2:05:58 PM REPRESENTATIVE GRUENBERG suggested that members might find it worthwhile to read the dissenting opinion in the Perrin case. REPRESENTATIVE GARA [suggested a possible second] amendment that would alter the language such that it would refer to the shorter of either "72 hours or the time necessary ...". Under such a language change, he predicted, one must still prove that taking a child saved the child from harm. REPRESENTATIVE GRUENBERG predicted, though, that the argument in such cases will then become what amount of time was necessary. He remarked that as a practical matter having a bright line such as is currently in the bill will make it easier to determine whether too much time has elapsed. He also predicted that having a 72-hour timeframe will complicate such cases. REPRESENTATIVE ANDERSON concurred. REPRESENTATIVE GARA said he would be shocked if the DOL ever returned to the legislature to complain that a particular piece of legislation made it too easy to convict someone. REPRESENTATIVE GRUENBERG asked how many custodial interference cases are prosecuted in a year. 2:09:05 PM MR. GUANELI said less than 20. He agreed that it is very hard to locate people who take a child and flee, and that some never return or return only after the children are all grown, such as occurred in a case wherein the father took his four children to Australia. He said that in this heartbreaking case, the woman pointed out that she had essentially lost her children because the father went out of his way to turn them against her. Mr. Guaneli said he respects Representative Gara's views, but pointed out that in custodial interference cases the DOL takes a careful look to see whether there is a reasonable explanation for why a child was held too long. If there is a reasonable explanation then the DOL won't convict, because the DOL is not interested in prosecuting such cases. The DOL's fear is that someone who is taking a child for the wrong reason will be unjustly acquitted. REPRESENTATIVE GRUENBERG said he is more interested in focusing on "pre-trial." He asked whether there is anything that the legislature can do to help locate noncustodial parents that take their children and flee the state. CHAIR McGUIRE suggested that that issue could be better addressed at another time. 2:11:37 PM REPRESENTATIVE ANDERSON moved to report CSSB 135(JUD)(efd am) out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, CSSB 135(JUD)(efd am) was reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|