Legislature(2005 - 2006)CAPITOL 120
02/15/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB20 | |
| HB353 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 276 | TELECONFERENCED | |
| += | SB 20 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 353 | ||
SB 20 - OFFENSES AGAINST UNBORN CHILDREN 1:13:56 PM CHAIR McGUIRE announced that the first order of business would be CS FOR SENATE BILL NO. 20(JUD), "An Act relating to offenses against unborn children." 1:14:09 PM SENATOR FRED DYSON, Alaska State Legislature, sponsor, informed the committee that CSSB 20(2d JUD) includes an amendment from Senator Guess that he said added value. Senator Guess's amendment, he explained, clarifies that a woman who stays in an abusive domestic relationship could not be charged with reckless behavior. Therefore, he said that he would support that provision being added back into the legislation. CHAIR McGUIRE pointed out that the language of Senator Guess's amendment is located on page 3, lines 14-19, of CSSB 20(2d JUD). SENATOR DYSON noted that the aforementioned language also appears [on page 2, lines 5-10, of CSSB 20(2d JUD)]. Senator Dyson then explained that SB 20 establishes that the damaging or killing of an unborn child is a separate crime from the harm that might have occurred to the mother. The federal government has passed the Unborn Child Protection Act, he noted. However, the federal Act only applies on federal lands or in the prosecution of federal crimes. Much of what happens in Alaska, with regard to assault, murder, and manslaughter is prosecuted in state court by state prosecutors. After discussions with the attorney general's office, Senator Dyson relayed, the attorney general made it clear that this legislation would allow such cases to be brought forth in state court. SENATOR DYSON related that approximately 30 other states have [enacted provisions] similar to what is being proposed via SB 20. He then informed the committee that in 1969, California police entered the wrong apartment during a drug bust and mistakenly [shot a pregnant] woman and killed her unborn child. Although it was a mistake, as the matter was addressed it was realized that there were no statutes that allowed recourse for the [unborn] child. Nothing in California law established the value of the [unborn] child that was lost. At that time, the California legislature passed one of the first [provisions] that established the value of a wanted, unborn child. After obtaining model legislation from various sources and help from the Department of Law (DOL) and Legislative Legal and Research Services, SB 20 was crafted in order to insert "unborn child" in several places in statute and addresses specific incidents that are particular to an unborn child. 1:19:04 PM SENATOR DYSON noted that the committee will likely hear testimony that SB 20 can be construed to be anti-abortion. However, he offered to provide the committee with [written documentation] from several legal experts and law school faculty establishing stating that the legislation is not anti-abortion. Senator Dyson clarified that SB 20 doesn't speak to abortion or damage to an unborn child that may occur during diagnostic or therapeutic processes; however, it does establish an unborn child as an entity worthy of protection and recognition in the law. SENATOR DYSON then turned to the question of what happens if one harms a pregnant woman that one didn't know was pregnant. The law is clear that if the individual had evil intentions toward the woman and carried those out, then those intentions are "transferable." He offered an example of a situation wherein a man attacked another who was carrying a child under his coat and thus the attacker could be charged for the damage to the child. Senator Dyson explained that the actions for which one can be charged under the bill are the same as if the child has been born. In order to have a crime, there has to be demonstrable harm, intention, and an instrument to cause the harm. CHAIR McGUIRE asked if the only difference between [CSSB 20(2d JUD)] and CSSB 20(JUD) is the deletion of the domestic violence provisions. SENATOR DYSON said, "To the best of my knowledge." He offered to research that issue further to be sure. CHAIR McGUIRE requested a motion to adopt CSSB 20(2d JUD) as the work draft. 1:24:07 PM REPRESENTATIVE WILSON moved to adopt CSSB 20(2d JUD) as the work draft. The committee took an at-ease from 1:25 p.m. to 1:26 p.m. CHAIR McGUIRE, in response to questions, recapped the difference between CSSB 20(JUD) and CSSB 20(2d JUD), and suggested that by adopting CSSB 20(2d JUD) as the work draft, the committee could save time. CHAIR McGUIRE, upon determining that there were no objections to Representative Wilson's motion, announced that CSSB 20(2d JUD) was before the committee. 1:26:17 PM MICHAEL "WES" MACLEOD-BALL, Executive Director, Alaska Civil Liberties Union (AkCLU), spoke in opposition to SB 20, although he clarified that the AkCLU fully supports the efforts to punish acts of violence against women that would harm or terminate a wanted pregnancy. However, this legislation would do so in such a way that diminishes the woman, the intended victim, by separating the fetus from the woman in the eyes of the law. He relayed that the AkCLU supports alternate approaches, including enhanced penalties for cases in which a woman suffers harm to herself or her wanted pregnancy. MR. MACLEOD-BALL informed the committee that according to certain statistics and studies, one-third of female murder victims are killed by their intimate partner; 4-8 percent of the women in the nation are battered by the men in their lives, with the highest rate pertaining to pregnant adolescents; and homicide is the number one killer of pregnant women. This information illustrates that the intent of the perpetrator is to harm the woman, not the child, though the pregnancy of the woman heightens the likelihood of battery. Although he confirmed that [the AkCLU's] desire is to do something about this problem, the issues associated with doing so need to be addressed further. MR. MACLEOD-BALL expressed concern that the current legislation doesn't exempt the pregnant woman from criminal liability. He pointed out that the privacy right guarantees a woman the right to control her own body in the absence of compelling state interest. Furthermore, the U.S. Supreme Court case, Roe v. Wade, interprets that right as protecting the right to abortion. However, SB 20 criminalizes activity, with respect to the fetus, that is less harmful than abortion. He indicated that if a woman has the right to abort under constitutional standards, then it stands to reason that a pregnant woman ought to have the right to do other things during her pregnancy that fall short of abortion. However, [under SB 20] the pregnant woman would be put at risk of incurring criminal liability. MR. MACLEOD-BALL then said that SB 20 will encourage more abortions if a woman is anxious that some activity in which she is engaged during pregnancy may result in harm to her fetus. Why would a woman risk criminal liability under SB 20 when she could simply abort the fetus? Furthermore, SB 20 unfairly penalizes wholly innocent and legal behavior, and a woman who doesn't know that she is pregnant and engages in high-risk activity might be exposed to criminal liability under this proposed legislation. There are also a host of proof and legal procedural issues that are raised by SB 20. MR. MACLEOD-BALL said that although proponents could say that it's not the intent of SB 20 to subject women in some of these hypothetical situations to criminal liability, the language does support doing so, and therefore there will be a prosecutor who will bring a case against a woman who will then have to defend herself. Moreover, there will be additional costs to the state that aren't being considered, including the various costs necessary to scientifically prove or disprove the various elements of such cases. 1:31:35 PM MR. MACLEOD-BALL concluded by reiterating the AkCLU's opposition to SB 20, which he characterized as bad legislation. However, he noted that the AkCLU is in favor of heightening penalties against those who would harm pregnant women, particularly when there is damage to the fetus. He said that he believes the sponsor of SB 20 is concerned with children, fetuses, and abortions. However, he said he didn't believe that the proponents are concerned with finding a consensus on these issues because if that were truly the case, the numerous references to "unborn children" in the legislation would be deleted and there would be more of an attempt to agree upon the common ground of heightening sentencing for those engaging in activities that harm fetuses. CHAIR McGUIRE offered that as she read the legislation, if the perpetrator is using a dangerous instrument, the mental intent of reckless enters [the equation]; otherwise, it's "intentionally" or "knowingly." Therefore, she said that she only sees "reckless" as a mental intent when in combination with a dangerous instrument. MR. MACLEOD-BALL said that while there may be an understanding of what particular terms mean, how that is carried out in practice is a different matter. Furthermore, there is no specific exemption for a woman's own actions, and such an exemption should be included in the bill. He offered to provide more specific suggestions in writing. REPRESENTATIVE GARA pointed out that in the current criminal code, AS 11.89.100, serious physical injury that a defendant causes includes an injury that unlawfully terminates a pregnancy. However, it seems that there are aggravating factors that can change the sentence. Therefore, it would be appropriate, he opined, to have an aggravator that makes clear that if serious physical injury is caused, including the termination of a pregnancy, it will lead to a higher sentence. The aforementioned may be an appropriate way to address situations in which someone recklessly causes a miscarriage. MR. MACLEOD-BALL said there is probably some merit to that approach as perhaps all sides on this issue could agree on it. 1:36:30 PM KAREN VOSBURGH LEWIS, Executive Director, Alaska Right To Life, began by informing the committee that currently 32 states recognize the killing of an unborn child as a homicide in some circumstances. Of those states, there are 20 states with homicide laws that recognize unborn children as victims throughout the entire prenatal development period. Furthermore, she related, it's well established that legislation such as SB 20 doesn't conflict with the Supreme Court's pro-abortion decisions such as Roe v. Wade. Criminal defendants have brought many legal challenges to the state's unborn victim laws based on Roe v. Wade and other constitutional arguments, but all such challenges have been rejected by the courts. In fact, in the 1989 case of Webster v. Reproductive Health Services, the U.S. Supreme Court refused to invalidate a Missouri statute that declares the life of each human being begins at conception and that unborn children have protectable interests in life, health, and well being. Furthermore, the [U.S. Supreme Court stated] that all state laws shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all rights, privileges, and immunities available to other persons, citizens, and residents of the state to the extent permitted by the constitution and U.S. Supreme Court rulings. MS. VOSBURGH LEWIS informed the committee that a scientific poll by Newsweek released in June 2005 asked whether someone who killed a fetus in the womb should face a homicide charge for the act, either throughout the pregnancy, from the point at viability, or not at all. She relayed her understanding that 56 percent of those responding to the poll said there should be a homicide charge for the act throughout pregnancy while 28 percent said a homicide charge should be allowed at the point of viability, which amounts to 84 percent favoring homicide charges in these cases. Only 9 percent said there should be no such thing as a fetal homicide charge. In May 2005 a Fox News poll found that 84 percent of the nation favored a double homicide charge in the Laci Peterson murder case in California. Ms. Vosburgh Lewis concluded by characterizing SB 20 as common sense legislation, and urged the committee to pass it. 1:40:01 PM BRENDA STANFILL, Interior Alaska Center for Non-Violent Living, reminded the committee that a lot of time was spent on SB 20 last year and many [concerns] remain. However, she said she appreciated the work to exempt charging victims of domestic violence who stay in a relationship with homicide based solely on staying in the relationship. "But it still goes back to ..., until we do a better job of protecting a woman, we're not going to be able to protect her child," she remarked. Although she said she understands the need for additional crimes, SB 20 approaches it in the wrong way, and noted her agreement with earlier testimony that there will still be prosecutorial discretion and so this bill could be used against a pregnant woman. Ms. Stanfill said that she is most concerned with crimes against a woman whose own child has been lost. MS. STANFILL expressed further concern that SB 20 may lead to a woman not seeking help or health care when she has been beaten repeatedly. Therefore, the community and the state would be better served by establishing a crime against a woman with aggravating factors and additional penalties when an unborn child is involved. She relayed that many women at the shelter experienced their first incidence of physical assault when they were pregnant. She opined that it's very important to keep this in context in that this is a crime against a woman and the penalties should be placed there so that women can be made safe. She further opined the penalties for men who are abusing pregnant women need to be increased. Ms. Stanfill said that a [pregnant] woman should not be in danger of being prosecuted for a crime. REPRESENTATIVE GRUENBERG asked Ms. Stanfill whether she saw any need for additional crimes to protect those who are abused during pregnancy. MS. STANFILL replied yes, and pointed out that a man can abuse a woman with his fists over and over again and only be charged with fourth degree assault, a misdemeanor charge engendering little to no jail time. The laws don't do an adequate job of ensuring that women are protected via the imposition of the jail time that fits the crimes perpetrated against them. CHAIR McGUIRE, in response to a question, informed the committee that amendments to SB 20 would be considered at the bill's next hearing, and mentioned that the title may need to be amended. 1:44:51 PM MICHAEL SMITH, University of Alaska - Fairbanks Students for Life, relayed that he supports any legislation that would criminalize the destruction of an unborn child and any legislation that would strengthen the penalties against an individual who would commit such an act. 1:45:39 PM PAMELA MARSCH turned attention to the language, "intent to kill an unborn child" and posed a situation in which a pregnant woman was advised to have bed rest, but the woman needed to work to feed her other children. In such a case, would the woman in such a situation who decided to work be prosecuted under SB 20? Although everyone would probably say no, the "intent to kill an unborn child" language could be interpreted that way because the woman was advised to have bed rest. Furthermore, she pondered whether a woman who abuses drugs or alcohol may simply choose not to obtain help because of the fear of prosecution under SB 20. REPRESENTATIVE GRUENBERG recalled that an earlier version of SB 20 included a provision that exempted actions taken by the pregnant woman. He said that he may offer an amendment that would cure Ms. Marsch's concern. 1:48:40 PM KENNETH JACOBUS, Attorney at Law, Kenneth Jacobus PC, opined that Alaska needs to enact a law to protect the rights of unborn children who are being harmed knowingly or negligently by third parties. He said that he is less concerned about folks being prosecuted when they shouldn't because there is prosecutorial discretion. With regard to exempting actions undertaken by a pregnant woman herself, he opined, such an exemption would be too broad because there are certain things that a woman could do to herself that should be criminalized. REPRESENTATIVE GRUENBERG referred to Senator French's amendment offered on the Senate floor to the language on page 2, line 13, and requested that Mr. Jacobus fax him any suggestions for change. 1:51:09 PM DEBBIE JOSLIN, Eagle Forum Alaska, relayed her support for SB 20 and urged the committee to pass the bill. Ms. Joslin opined, "In a society where we're supposed to value human life and protect women, women are increasingly the victims of violence." She offered the following statistics: 32 percent of nonpregnant women were victims of homicide; while 43.3 of pregnant women were victims of homicide, 74 percent of which died from gunshot trauma; and 3 out of 4 of women with evidence of pregnancy were victims of homicide within the first 20 weeks of pregnancy. She opined that the aforementioned statistics suggest that women aren't always the primary victim but rather it's often the unborn child. 1:52:33 PM CLOVER SIMON, CEO, Planned Parenthood Alaska (PPA), informed the committee that PPA certainly shares the sponsor's goal of making a loss of pregnancy due to violence a greater crime. However, at this time the organization is unable to support the legislation as currently written. Furthermore, SB 20 is viewed as part of a national trend to erode the foundations of a woman's right to choose by elevating all stages of prenatal development under state law. Ms. Simon suggested that the legislature instead adopt a penalty enhancement approach that would make it one felony count higher to harm a pregnant woman when the result is miscarriage or stillbirth. The aforementioned approach is more likely to reach offenders because the language is cleaner and less likely for the two separate charges to be joined in prosecution, and it would be simpler to have the increased penalty come in the form of an aggravator. The resulting penalty would be as stiff as the penalties outlined in the current version of SB 20. MS. SIMON echoed concern with regard to the lack of an exception for actions that a woman may undertake herself. She then urged the committee to review the following language of Section 2 [of CSSB 20(JUD)], which read: the birth of a child before 37 weeks gestation with weight at birth of 2,500 grams or less is prima facie evidence of serious physical injury. MS. SIMON asked the committee to consider how a woman might be prosecuted under this section. In closing, Ms. Simon reminded the committee that the protection of the woman must come first because the woman's safety and well being allows there to be healthy a baby. The bill as currently written seems to have left this part out, and therefore she urged the committee to work with PPA to develop legislation that everyone can support. MS. SIMON, in response to a question, asked whether a woman who smokes during her pregnancy, which is a known cause of low-birth weight and pre-term labor, could be prosecuted under SB 20. REPRESENTATIVE GRUENBERG pointed out that a low-birth weight baby may not necessarily have any physical injury. CHAIR McGUIRE encouraged committee members to review the language regarding "a dangerous instrument." She said that she didn't know whether a cigarette would be a dangerous instrument. Therefore, perhaps the focus should be related to the definition of a dangerous instrument. The only place in the bill that reckless conduct is used is in concert with the use of a dangerous instrument; there is nowhere in the legislation where the reckless conduct and the use of a dangerous instrument aren't linked. REPRESENTATIVE GRUENBERG argued, however, that the language on page 3, lines 14-19, seems to address the issue of pregnant women who intentionally smoke. Therefore, he questioned whether a cigarette might be considered a dangerous instrument under the facts of a particular case. 1:57:50 PM CHAIR McGUIRE opined that she couldn't imagine a prosecutor making an argument that a woman intended to cause serious physical injury to her unborn child by smoking. REPRESENTATIVE GARA noted that normally a dangerous instrument is a weapon, and that it's understandable that one would want to have an enhanced crime when someone misuses a weapon and causes a very serious injury. Therefore, he questioned whether the committee should consider substituting "weapon" for "a dangerous instrument." Currently, when the language, "a dangerous instrument" is used in conjunction with negligent homicide, then one could be talking about a bad car accident that causes a miscarriage; under the bill, in such a situation, the person could be charged with negligent homicide even though that might not be the sponsor's intention. REPRESENTATIVE GRUENBERG pointed out that there are cases from the Alaska Supreme Court and the Alaska Court of Appeals that hold that a boot and a telephone are dangerous instruments. CHAIR McGUIRE opined that Ms. Simon makes some good points and although the legislation may continue to have some places requiring further clean up, she wasn't convinced that a cigarette [would be viewed as a dangerous instrument]. 2:00:10 PM CHIP WAGONER, Executive Director, Alaska Conference of Catholic Bishops, relayed that the church believes life should be protected from conception to natural death. He further relayed that a person's dignity comes from God and as such the church believes that everyone has a right to life and a right to those things that make life truly human, such as food, clothing, housing, health care, education, et cetera. This legislation recognizes that a child in the womb deserves protection just as do other people. Those who are responsible for the loss of an unborn child should be held accountable just as they would be were the child in the mother's arms. The aforementioned is why the Alaska Conference of Catholic Bishops supports SB 20. He noted appreciation for the committee's adoption of CSSB 20(2d JUD), which includes Senator Guess's amendment regarding domestic violence situations. 2:02:24 PM CHAIR McGUIRE announced that [CSSB 20(2d JUD)] would be set aside, and that she would leave public testimony open with the caveat that those who have already testified not do so again.
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