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 | ||
HB 353 - SENTENCING FOR SEXUAL OFFENSES [Contains mention that the provisions of SB 218 have been incorporated into the proposed committees substitute (CS) for HB 353, Version F, and an indication that the provisions of SB 223 had previously been incorporated into SB 218; the sponsors of SB 223 and SB 218 assisted with the presentation of HB 353.] 2:03:01 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 353, "An Act relating to sentences for sexual offenses." [Before the committee was the proposed committee substitute (CS) for HB 353, Version 24-LS1449\G, Luckhaupt, 2/2/06, which had been adopted as a work draft on 2/8/06.] 2:04:03 PM REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, one of the prime sponsors of HB 353, relayed that members' packets contain a new proposed committee substitute (CS) for HB 353, Version 24- LS1449\F, Luckhaupt, 2/10/06, that incorporates the provisions of SB 218 into HB 353. 2:04:36 PM REPRESENTATIVE WILSON moved to adopt the proposed CS for HB 353, Version 24-LS1449\F, Luckhaupt, 2/10/06, as the work draft. There being no objection, Version F was before the committee. REPRESENTATIVE NEUMAN relayed that incorporating the senate bill into HB 353 was done with the goal of protecting all Alaskans from sexual assault crimes and sexual abuse of a minor crimes, and that it is hoped that Version F will address some of the concerns previously raised in committee. He remarked on the work that he, Senator Con Bunde, and Senator Gretchen Guess have done in crafting the legislation currently before the committee. 2:06:15 PM REX SHATTUCK, Staff to Representative Mark Neuman, House Special Committee on Economic Development, International Trade and Tourism, Alaska State Legislature, provided comments at the request of Representative Neuman, one of the prime sponsors of HB 353. He relayed that Representative Neuman, Senator Bunde, and Senator Guess have worked to try to "fix" the issue of presumptive sentencing. Mr. Shattuck then relayed that when he was 11 years old, he was the victim of what would now be considered the crime of sexual abuse of a minor in the second degree - a class B felony; he was fondled through clothing and solicited. Mr. Shattuck said he was there to put a face on the issue and to speak for those who won't typically come forward and speak for themselves. He went on to say: I was 11 when it happened and I'm now 49, and that's a sentence of 38 years and growing without parole. And I understand that we should have some recognition of the defendants, but the victims also are a key part of this. And I urge you to remember that as you're going through this, there's some big disparities between the sentencing of the defendant and [the sentences of] the victim. 2:08:35 PM SENATOR CON BUNDE, Alaska State Legislature, speaking as the sponsor of SB 218, offered that the goal of [HB 353, Version F,] is to protect citizens without being "overly draconian" to sexual predators. Alaska has a reputation of having the highest sexual assault rate in the nation, actually 70 percent higher than the next highest state. Furthermore, just the reported cases make up that high rate - the reported cases are just the "tip of the iceberg" - and only a small percentage of perpetrators actually get convicted. He characterized [Version F] as a cooperative effort, and remarked on the need to press forward with a vehicle that will stop the creation of new victims, particularly given that it is very difficult for sexual offenders to change. Rehabilitation of sexual offenders is very unlikely, and so the only way to ensure the public's safety is to remove sexual offenders from society. SENATOR BUNDE noted that [Version F] essentially insulates society from sexual offenders, people who inflict lifelong wounds. Excessive alcohol use and drug abuse are sometimes touted as reasons for Alaska's high rate of sexual assault and sexual abuse of a minor cases, but he discounts that argument, he relayed, adding that the drive to commit such crimes is already there to begin with in certain people. Acknowledging that [adoption of Version F] will be a drastic and expensive step, he asserted that it is still a necessary step. 2:14:17 PM SENATOR GRETCHEN GUESS, Alaska State Legislature, speaking as the sponsor of SB 223, noted that she and Senators Dyson, Elton, Kookesh, Green, Olson, Hoffman, and Seekins have signed on as co-sponsors of SB 218. She explained that although she'd introduced SB 223, she has since "joined forces" with Senator Bunde on SB 218, adding that she would be speaking to the specific changes she'd [had incorporated into SB 218 and then into HB 353, Version F]. To begin with, she opined that Version F is too lenient, because she has no tolerance for "this issue," and asked members to keep in mind that the vehicle that passed the Senate in no way represents the upper level [of possible sentences] and already contains compromises. SENATOR GUESS said that her motivation for sponsoring a bill on this issue is one of values, rather than one of protecting people or addressing statistics. The legislature is a policy- making group whose decisions are meant to reflect the values of the members' communities. She proffered that her constituents would be shocked to hear that currently a rapist serving a five- year sentence or a child molester serving a three-year sentence could be released after serving only two-thirds of his/her sentence, surmising that this type of sentencing structure doesn't represent the values of the people in her district. People count on the legislature to establish laws that reflect their values. Unfortunately, she remarked, sex crimes have never been given the scrutiny and treated as seriously as they deserve; for example, it wasn't until just three years ago that she was able to pass legislation stipulating that the Violent Crimes Compensation Board (VCCB) couldn't blame a rape victim for being raped. SENATOR GUESS said that although some may question the dramatic increase in sentencing proposed via Version F, her view is, how can the legislature not institute such increases in sentencing and how can it not reflect the values of Alaskans. She went on to say that she dismisses the notion that some rapes and molestations are not serious; instead, she opined, all are serious and have serious consequences on the victim and on the community. She relayed that her interest is in making sure that for any given sexual assault crime or sexual abuse of a minor crime, the sentencing scheme reflects the values of her community; currently they don't match, and what is proposed via Version F comes closer to a match. 2:19:31 PM SENATOR GUESS noted that Sections 1 and 2 of Version F of HB 353 were taken from SB 223. Section 1 will add new paragraphs (6) and (7) to AS 11.41.436(a) - sexual abuse of a minor in the second degree - and these new paragraphs pertain to penetration crimes that currently are listed as paragraphs (2) and (3) of AS 11.41.438(a) - sexual abuse of a minor in the third degree. She opined that penetration crimes involving minors should be either first or second degree crimes because they are serious crimes, and although some would like to dismiss such crimes as being of no consequence, the consequences of being in a position of authority and having sex with someone under the age of 18 are serious. With the adoption of Section 1 of Version F, all penetration crimes involving minors will be either first or second degree crimes. SENATOR GUESS explained that Section 2 of Version F creates a new crime of failing to report a sex offender or a child kidnapper who has not registered as such, and a violation of this proposed statute - AS 11.56.767 - will be a class A misdemeanor. This provision is in response to a [recent] Florida case involving a sex offender who was living with his sister; his sister knew he was sex offender, knew he hadn't registered, didn't do anything about it, and the sex offender went on to [abduct, rape, torture, and kill a little girl]. 2:22:00 PM REPRESENTATIVE GRUENBERG asked whether members of the clergy ought to be included in the exemption provided by proposed AS 11.56.767(b), which says: (b) In a prosecution under (a) of this section, it is a defense that the defendant was a licensed attorney and there existed, at the time of the offense, a bona fide attorney-client relationship between the attorney and the sex offender or child kidnapper. SENATOR GUESS said she would not be comfortable adding members of the clergy to that exemption. REPRESENTATIVE NEUMAN expressed a preference for keeping proposed AS 11.56.767(b) as is. REPRESENTATIVE GRUENBERG noted that the Alaska Rules of Evidence contain an exemption for communications with members of the clergy. SENATOR BUNDE mentioned that there is a difference between being aware of a fact and being a knowing participant in a crime. REPRESENTATIVE GARA asked Senator Guess whether she would be amenable to a change that would ensure that proposed AS 11.56.767 doesn't apply in situations involving custodial interference. SENATOR GUESS, in response to that question and other comments, pointed out that AS 11.56.767(a) only applies in situations where a person knows that someone must register as a sex offender or child kidnapper and hasn't yet done so, and therefore the provision won't apply in situations involving custodial interference. REPRESENTATIVE GARA acknowledged that point. CHAIR McGUIRE concurred. REPRESENTATIVE GRUENBERG questioned whether proposed AS 11.56.767(b) might impact the other "privileges" in the Alaska Rules of Evidence, adding that he wants to ensure that the bill is constitutional with regard to possible court rule changes. CHAIR McGUIRE offered her understanding that anytime a failure to report a crime is made a crime itself, unless otherwise specified, it won't automatically impact the privileges currently listed in the Alaska Rules of Evidence. 2:30:36 PM SUSAN A. PARKES, Deputy Attorney General, Criminal Division, Office of the Attorney General, Department of Law (DOL), offered her understanding, however, that similar to the legislature's policy decision to make certain groups of people mandatory reporters of child abuse, via proposed AS 11.56.767, the legislature is making a policy decision that the privileges listed in the Alaska Rules of Evidence won't apply for "this kind of purpose." Therefore, the legislature would have to specifically exempt those that they don't wish proposed AS 11.56.767 to apply to, just as that provision does for attorneys of sex offenders and child kidnappers. She posited that a statute can override a privilege in an evidence rule. REPRESENTATIVE GRUENBERG said his question initially had been whether the title ought to be changed to reflect a court rule change, but has since surmised that that won't be necessary because in-court procedures won't be affected. CHAIR McGUIRE concurred. MS. PARKES pointed out that the privileges in the Alaska Rules of Evidence pertain to evidence admissibility in court, whereas proposed AS 11.56.767(b) is essentially a policy call exempting a group of people from having to report certain information to [law enforcement agencies]. SENATOR BUNDE explained that Section 3 mandates regular periodic polygraph examinations as a condition of probation for a sex offense [as defined in AS 12.63.100]. Information gathered during these examinations will not be admissible in court, but it has been discovered that probationers and parolees are more likely to stay in compliance with their conditions of probation/parole because they know they will get caught if they lie during a polygraph examination; in fact, [statistics from other states indicate] that compliance improves almost 70 percent when regular periodic polygraph examinations are a condition of probation/parole. 2:34:08 PM SENATOR BUNDE explained that Section 4 will increase the presumptive sentencing ranges. For example, under Version F, the presumptive sentencing range will be 25 to 30 years for a first felony conviction of first degree sexual abuse of a minor under the age of 13; will be 20 to 30 years for a first felony conviction of first degree sexual abuse of a minor 13 years of age or older; and will be 25 to 35 years for a first felony conviction of first degree sexual assault or first degree sexual abuse of a minor if the defendant used a firearm, a dangerous instrument, or caused serious physical injury during the commission of the crime. For a second felony conviction of first degree sexual assault or sexual abuse of a minor, the presumptive sentencing range will be 30 to 40 years if the first felony conviction was not for a sexual felony, and will be 35 to 40 years if the first felony conviction was for a sexual felony. For a third felony conviction of first degree sexual assault or first degree sexual abuse of a minor, the presumptive sentencing range will be 40 to 60 years if the first two felony conviction were not for sexual felonies, and will be 99 years if the first two felony conviction were for sexual felonies. SENATOR BUNDE also explained that the presumptive sentencing range will be 20 to 25 years for a first felony conviction of [attempt, conspiracy, or solicitation to commit] first degree sexual abuse of a minor under the age of 13; will be 15 to 25 years for attempt, conspiracy, or solicitation to commit first degree sexual abuse of a minor 13 years of age or older; and will be 25 to 35 years for a first felony conviction of attempt, conspiracy, or solicitation to commit first degree sexual assault or first degree sexual abuse of a minor in the first degree if the defendant used a firearm, a dangerous instrument, or caused serious physical injury during the commission of the crime. For a second felony conviction of attempt, conspiracy, or solicitation to commit first degree sexual assault or first degree sexual abuse of a minor, the presumptive sentencing range will be 25 to 35 years if the first felony conviction was not for a sexual felony, and will be 30 to 40 years if the first felony conviction was for a sexual felony. For a third felony conviction of attempt, conspiracy, or solicitation to commit first degree sexual assault or sexual abuse of a minor, the presumptive sentencing range will be 35 to 50 years if the first two felony convictions were not sexual felonies, and will be 99 years if the first two felony convictions were for sexual felonies. SENATOR BUNDE went on to explain that for a first felony conviction of second degree sexual assault, second degree sexual abuse of a minor, unlawful exploitation of a minor, or distribution of child pornography, the presumptive sentencing range will be 5 to 15 years; will be 10 to 25 years for a second felony conviction if the first felony conviction was not for a sexual felony; and will be 15 to 30 years for a second felony conviction if the first felony conviction was for a sexual felony. For a third felony conviction of second degree sexual assault, second degree sexual abuse of a minor, unlawful exploitation of a minor, or distribution of child pornography, the presumptive sentencing range will be 20 to 35 years if the first two felony convictions were not for sexual felonies, and will be 99 years if the first two felony convictions were for sexual felonies. SENATOR BUNDE relayed that the last portions of Section 4 stipulate that for a first felony conviction of third degree sexual assault, incest, indecent exposure in the first degree, possession of child pornography, or attempt, conspiracy, or solicitation to commit sexual assault in the second degree, second degree sexual abuse of a minor, unlawful exploitation of a minor, or distribution of child pornography, the presumptive sentencing range will be 1 to 12 years; will be 8 to 15 years for a second felony conviction if the first felony conviction was not for a sexual felony; and will be 12 to 20 years for a second felony conviction if the first felony conviction was for a sexual felony. For a third felony conviction of third degree sexual assault, incest, indecent exposure in the first degree, possession of child pornography, or attempt, conspiracy, or solicitation to commit sexual assault in the second degree, second degree sexual abuse of a minor, unlawful exploitation of a minor, or distribution of child pornography, the presumptive sentencing range will be 15 to 25 years if the first two felony convictions were not for sexual felonies, and will be 99 years if the first two felony convictions were for sexual felonies. SENATOR BUNDE offered his understanding that by the time a person has been convicted for sexual felonies three times, he/she has already created hundreds of victims. He then turned attention to Section 5 of Version F, and indicated that it stipulates that "habitual criminals" must serve half of their sentence before they may file a motion for sentence reduction. Section 6 stipulates that [certain] habitual criminals shall be sentenced for 99 years. Section 7 provides that sexual offenders shall serve mandatory periods of probation as part of sentencing; currently, some sexual offenders will chose to serve their full sentence in order to avoid supervision when released. The proposed probation periods are 15 years for an unclassified sexual felony, 10 years for a class A or class B sexual felony, and 5 years for a class C sexual felony; again, these shall be mandatory periods of probation subject to all current conditions of probation as well as - with the passage of Sections 3 - regular periodic polygraph examinations, and may not be suspended or reduced. SENATOR BUNDE turned attention to Sections 8 and 9, and characterized them as housekeeping alterations intended ensure that all sex offenders register [regardless of whether they were convicted of violating former laws rather than current laws]. Section 10 - similar to Section 3 - mandates regular periodic polygraph examinations as a condition of parole for a sex offense as defined in AS 12.63.100. 2:41:27 PM SENATOR BUNDE relayed that Section 11 increases the penalty - from a class B misdemeanor to a class A misdemeanor - for failing to report [suspected incidences of child abuse, neglect, or child pornography]; this provision applies to those currently required to report such incidences. Section 12 conforms AS 11.41.438(a) with the change proposed via Section 1. Section 13 requires the Department of Public Safety (DPS) to provide [the public] with sex offender registry information on the Internet, specifically information regarding how to compile registry information in a geographic format. A portion of Section 14 extends the provisions of Sections 3 and 10 to apply to persons on probation or parole for offenses committed before, on, or after the effective date of this Act. Sections 15 and 16 are effective date clauses. SENATOR BUNDE said that although the sentencing increases proposed in Version F are substantial, if there is even one mitigator, the judge can still chose to reduce the sentence substantially. Version F is setting a societal norm and the legislature must be able to provide the courts with the justification that some of the proposed sentences ought to be equal or greater than the sentence for the crime of manslaughter, for example. He reiterated that the only guarantee that a sexual offender will not reoffend is to remove him/her from society, adding that the cost of doing so is one that the legislature should pay. 2:45:29 PM GINGER BRYANT, South Peninsula Haven House, said it is imperative that the bill passes, and remarked how her organization often ends up serving a new set of victims from the same perpetrator. Currently, since there is no way to confirm that a perpetrator isn't re-offending when he/she is put back into a community, he/she will "just slip under the wires." Instituting polygraph examination requirements, establishing [longer] sentences, and holding perpetrators accountable are the only ways to protect people. She characterized HB 353 as a vital bill that needs to be passed. 2:47:37 PM LESLIE A. HIEBERT, Attorney at Law, testified in opposition to the sentencing [provisions of the] bill. She said that in her practice as lawyer she has seen the facts of a case get distorted in predictable ways. She offered her understanding that presumptive sentencing ranges were established in order to avoid disparate sentences for similarly situated offenders, even sex offenders. But when the presumptive sentencing ranges become too broad, then some similarly situated offenders will instead get sentences that are widely different, a situation that the legislature was attempting to avoid. For example, one offender might be sentenced for 5 years and another might be sentenced for 15 years for the same behavior. MS. HIEBERT also pointed out, for example, that sexual assault in the second degree - currently a class B felony - includes merely touching someone without his/her consent, and in such cases it usually comes down to each party arguing whether there actually was consent and then the jury believing one party over the other; with such a wide sentencing range, she posited, even innocent people will avoid having their case go before a jury because of the likelihood that they will get convicted. She offered her belief that the increased sentences [proposed by Version F] is just a reflection of society's interest in punishing sex offenders, but is written in such a way that innocent people will be caught up in it and might end up accepting a non-sex offense felony conviction in order to avoid a sex offense felony conviction and all if its "draconian" consequences. MS. HIEBERT offered an example of just such a case, adding her belief that the proposed increases will result in a lot of unintended consequences. Furthermore, prosecutorial discretion will also result in disproportionate representation, investigation, [sentencing], and incarceration. In conclusion, she opined that there is no reason to increase the current presumptive sentencing ranges, since they were only recently adopted and so haven't been tried and tested. 2:52:49 PM PHILLIP E. SHANAHAN, Attorney at Law, said that the problem he sees with the bill is that although the goal of punishing sex offenders more harshly could be a viewed as a laudable goal, the term "sex offender" as currently defined includes people who have committed very, very many different types of behaviors. He went on to say: I'm not here to tell you that every person convicted of a sex offense is not a dangerous person, but it's also very, very incorrect to assume that anybody who's convicted of a sex offense therefore poses a future danger. The repeat sex offender cases, perhaps those, yeah - I'm not here to tell you that they don't deserve lengthy jail terms. What I want to talk to you more about is the sentences that have been proposes for first time offenders. Traditionally, our sentencing scheme has punished first time offenders with lengthy jail time only for the most egregious acts - the penetration, the actual rapes, the molestations, the child molester cases. ... The bill ... [addressing the U.S. Supreme Court case, Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004)] then came along last year - just this same legislature - ... and it ... changed the old scheme and ... added some minimum penalties for the lower level conduct - the class B and the class C felonies. That went into effect in March of 2005. We're now, here, ... 11 months later, and that bill, itself, marked ... quite a change over the past 25-plus years in Alaska. Our presumptive sentencing laws didn't punish first time offenders for the lower level conducts with lengthy jail terms. The "Blakely bill" actually, in and of itself, changed that. And I heard Senator Bunde mention that this has been worked on long before any of the national concern, but how long before could it have been when this same legislature just less than one year ago did a complete overhaul of our sentencing scheme and adopted new sentences for all or our ... felony crimes. And what ... this bill now does is change those sentences that were just increased in March without any chance to really see if they're going to have any positive impact, and [they are being] quadrupled in some cases, doubled in some cases, [and] in other cases just ... [having] huge ranges that didn't exist before. MR. SHANAHAN continued: I think ... [we're falling] into the trap of ... comparing the rapist to the person who tries to grab ... [his] girlfriend's breast through her clothing and she says no and then he does it again. Is that person in the same category as a person who violently rapes somebody? I don't think anyone's going to argue that they are, but this bill seems to assume that; this bill talks about increasing penalties for rapists and child molesters, but in fact the numbers that are being applied to first offenders convicted of the lower level crimes really doesn't make much of a distinction between the conduct. And I agree with some of the testimony earlier that ... the broad ranges seem a bit different than we would expect. In the class C felony offense, just to ... briefly touch on that one, that can include the attempt to touch the breast through the clothing, and now we've got a range of 1 to 12 years for somebody who could be 50 years old and have done not a single thing wrong in their life. And our sentencing scheme has always addressed people's history by saying if you have a bad history you get treated worse later, but what this bill does is it takes away that sort of policy and it seems to say, "If you're a first offender and you do anything that constitutes, quote unquote, 'a sex crime,' you must have hundreds of victims and you must be very, very dangerous, so we're going to lock you up for a really long time." That's a dramatic change in our law. Again, I don't quarrel with the idea of presumptive terms that are steep for people who are repeat sex offenders, but we shouldn't assume that every person's a repeat sex offender when they have their first offense. And, finally, Senator Bunde also mentioned that [the] finding of a single mitigator gives the judge lots of ability to reduce penalties, but a true understanding of the presumptive sentencing bill will defy that statement. ... First of all, the number of mitigators are extremely limited, and they continue to be limited over the years - more and more of them get deleted from the statutes - and also, depending upon what the start of the presumptive term is, a judge can only reduce the penalties so far. Just as an example, [for] the five-year minimum on the first [class B] felony ..., the lowest a judge could go is two and a half years with [a] mitigating factor. MR. SHANAHAN, in conclusion, asked the legislature to take these issues into account when looking at the sentences for first time offenders. CHAIR McGUIRE asked Mr. Shanahan to submit written comments as well. 2:58:22 PM REPRESENTATIVE GARA expressed discomfort that neither a representative from the Public Defender Agency (PDA) nor a representative from the Office of Public Advocacy (OPA) has been present to comment on bills such as HB 353. [Chair McGuire turned the gavel over to Representative Wilson.] REPRESENTATIVE GARA offered his understanding that for a first time sex offender, the current presumptive sentencing range for an unclassified felony is 8 to 12 years but with aggravators can be increased to 99 years, and the current presumptive sentencing range for a class A felony is 5 to 8 years but with aggravators can be increased to 30 years. He noted that class B and class C felonies cover a huge range of conduct, one type being sexual contact, which is defined as touching someone through clothing. The current presumptive sentencing ranges are 2 to 4 years for a class B felony and 1 to 2 years for a class C felony, but with aggravators can be increased to 20 years and 10 years respectively. Thus the ranges are not the full picture; instead they merely provide the judge with sentencing parameters when aggravators are not part of the equation. Furthermore, some of the aggravators that justify a higher sentence include crimes that cause physical injury and crimes that manifest deliberate cruelty to another person, and since both of those types of crimes constitute rape as [society] thinks of it, the sentences can be increased to the maximum. REPRESENTATIVE GARA then asked whether aggravating factors are part of the main trial. MR. SHANAHAN said it is hard to say whether they would be, because the "Blakely bill" is so new. According to his experience, however, even though aggravating factors do have to be proven to a jury because of the Blakely decision, the practice in many courts has been to do a "bifurcated trial" if the aggravating factor includes testimony that wouldn't be relevant to the "guilt or innocence" phase of the trial. In such instances, the jury wouldn't hear information about the aggravating factor until after - and only after - deciding guilt or innocence, and then the jury - usually the same jury - would be asked to decide whether the state has proven the aggravating factor beyond a reasonable doubt. 3:04:04 PM SIDNEY K. BILLINGSLEA, Attorney at Law, relayed that she has been a criminal defense lawyer in Alaska for 20 years, and has substantial experience in defending people who have been accused of sex crimes, not all of whom have been guilty. And some of them she'd had the good fortune to represent before they were charged, and so she was able prevent them from being formally accused of committing a crime. Sometimes innocent people are accused of committing a sexual offenses, and those accusations are the most easily made accusations, but are the most difficult to defend because all a person has to do is say is that it happened, and there is generally no physical evidence available, no physical injury available, and no witnesses available other than the two individuals involved in the alleged behavior; therefore accusations can be easily made, for whatever reasons, by a person desiring to be a victim of these offenses, and they are very, very traumatic, difficult, expensive, and frightening to defend. MS. BILLINGSLEA surmised that the value decision the legislature is attempting to make via this legislation is that as a policy of the state, the decision will be to "warehouse" sexual offenders regardless of their potential for rehabilitation, regardless, to some degree, of the level of offense they commit. To do that, she also surmised, requires that the government dehumanize its own citizens to a degree - "you are choosing to put a citizen in the position that you ... would put an object to be stored in a box or a warehouse and instead just [incarcerating] them in prison." She went on to say: As a value decision, I think that paying attention to the factors that cause sexual offenses may be a better way to look. Some of the factors that cause ... at least two-thirds of the sexual offenses are substance abuse. I recognized very clearly that that's not an excuse for [sexual offenses] but it is a causing factor. ... If you address the substance abuse, which is rampant - especially in rural Alaska but the urban areas are no exception these days - ... you may very, very well find yourself with a steep decline in sexual offenses. ... One of the [other] large ... factors in causing people to grow up to be sex offenders is that they were once victims of sexual offense. So you're taking yesterday's victim, that you express a great deal of concern - and rightly so - about today, and then saying, "Okay, now that you're an adult and you've committed an offense ..., now you are somebody that we are no longer going to regard with compassion; we are going to regard you as somebody that needs to be warehoused for potentially ... the rest of you're productive years." 3:07:57 PM MS. BILLINGSLEA opined that the bill will greatly impact native Alaskans and rural Alaskans for a couple of reasons, one being the high level of substance abuse in small towns. Additionally, there are some cultural norms in rural communities, such as younger people being involved with older people - for example, a 14-year old and an 18-year old, or a 15-year old and a 19-year old - and if someone comes in from outside of that community and sees this type of relationship occurring, it could result in the older person being charged with a class A or class B felony. She went on to say: I don't think increased sentences will deter sex offenses any more than the death penalty deters murder - ... that's proved. I think that what might be a good idea to think about, if you really want to take the great leap forward on this bill, is put a sunset on it. And [then], if you don't have a decrease in sexual offenses in "fill in the blank years" - three years, five years - if you don't have a marked decrease in the percentage of sex offenses prosecuted in this state, you should sunset it. There's an idea. Otherwise, you're just running up your fiscal note warehousing people and you're not having the desired effect. 3:10:09 PM SUE CHRISTIANSEN, Bearing Sea Women's Group, said that as a victim of incest, she wanted to provide the committee with information about her personal experience: I don't know exactly when it began, but I would say around 8 years old and it went on until I was 14 years old. The point of this was that it warped my whole outlook on life. It was not until I was 47 years old ... and got sober that I realized the impact of what it had done to my life. It gave me a life sentence. I am now almost 62 years old, I have never forgotten, I have never gotten over it, and I never will. The point is, I'm managing it. But why are we so intent on focusing on the poor old perpetrators, and not valuing and protecting our innocent children? Now, we've lumped all these kids in there, from the 17-year olds or 16-year olds, and then we've lumped them in with the 13-year olds. I want a separate bill that manages our children from birth to 13, the target age of pedophiles. If you penetrate a 2-year old, it's a lot different than penetrating a 17-year old, and that's where we get all muddled up in here because people are looking at it and going, "Well, she was 14 or 15." But nobody can quibble with children under 13. Or even under 10 - how about limiting it [to] between the ages of birth and 10? I've seen ... 3- year olds and 5-year olds with STD's [sexually transmitted diseases]. Now, there is no excuse for that culturally or ... [otherwise], not now and not ever. ... Thank you very much. [Representative Wilson returned the gavel to Chair McGuire.] 3:12:14 PM MEGHAN GAUGHAN, Tundra Women's Center (TWC), said she would be testifying in support of HB 353. She said she would like to echo the alarms regarding the high numbers of sexual assaults and sexual abuse of minor cases in Alaska. In her work, she relayed, she sees the same offenders over and over and over again, and many of the same victims - victimized from the same perpetrators and from different perpetrators. She concurred with the notion that no one wants to see victims getting victimized more than once. She said that in Bethel and outlying villages she is meeting people who are afraid to be in their home towns because offenders are being released early or are only serving short sentences; this places the responsibility for a victim's safety back on the victims and their families. This sends the wrong message to the community, that being that perpetrators can get away with sexual offenses without serving much jail time. This also puts the blame back on the victims, she opined. She thanked [the legislature] for its efforts to provide consistency in sentencing and its efforts to place the responsibility for these crimes on the offenders. 3:14:27 PM DANIEL E. LIBBEY, Attorney at Law, relayed that he would be testifying in opposition to the sentencing provisions of HB 353. He offered that there's definitely not a disagreement about serious sexual offenders, but he believes that as a group, first time offenders can include those who are innocent of the charges. He offered an example of a case in Juneau that involved a man who was charged with sexual abuse of a minor in the first degree based on his position as a babysitter of a girl under the age of 13. The girl later admitted that her friend's mother had "put her up to the trial testimony," and further discovery revealed that the mother was seeking custody of the girl so as to receive money from the state. The judge reversed the conviction and the district attorney dismissed the charges, but not before the defendant had served more than three years of jail time. MR. LIBBEY offered his belief that that case illustrates that in a number of these type of cases there simply is no physical evidence, there are no other witnesses, and there is no injury; in such cases, it simply "becomes the evidence of a testifying witness alone," and the jury system doesn't provide for the ability to recognize wrongful charges as often as might be preferred. Under the proposed legislation, someone in the aforementioned defendant's position would be subject to a jail sentence of 25 to 30 years, and that case was a very difficult case to defend. Mr. Libbey suggested that members take such examples into account by providing a lower presumptive sentencing range for first time felony offenders and allowing the judge to examine the credibility of the evidence so as to be able reverse a conviction in cases where people have been wrongfully charged. MR. LIBBEY noted that under [Version F], a mitigating factor might only reduce a sentence to 12 years, adding that it is frightening to think that someone in the aforementioned defendant's situation would be sentenced to 12 years. He asked that the legislature consider changing the bill for first time offenders such that they would be given the opportunity to "get on the right track," suggesting that such people are not in the same class as serious offenders, who should be targeted by the bill. MR. LIBBEY, in response to questions, provided a few more details about the aforementioned case. REPRESENTATIVE GRUENBERG mentioned the crime of suborning perjury. 3:21:26 PM MICHAEL A. MOBERLY, Attorney at Law, relayed that he would be speaking in opposition to "Version F." Mentioning the issue of proportionality, he offered his belief that the focus of the bill is to target a small subset of offenders and determine whether such broad sweeping increases in the overall sentences is absolutely necessary. He opined that it may not be necessary to make the proposed changes, since people haven't yet had an opportunity to see the effects of the "2003 and 2005 changes to the law," characterizing those recent changes as already addressing those offenders that everyone is most concerned about; those recent changes include parole ineligibility for repeat offenders, and enhanced sentences. MR. MOBERLY opined that those recently enacted provisions need to be given an opportunity to demonstrate whether they have the effect the proposed bill is aiming for. Furthermore, the fiscal impacts of the recently passed legislation are not yet known, and so it will be difficult to gage the additional fiscal impacts of the proposed legislation. He said that another concern of his centers on the proposed language pertaining to the failure to report someone who has not registered as a sex offender or child kidnapper. Although certain groups of professionals and licensed individuals have mandatory reporting requirements placed on them, "common lay citizens" generally don't have those same obligations under the law. Therefore, he remarked, he does not believe that notifying the authorities of a person's failure to register is necessarily the type of conduct that regular citizens should be obligated to undertake. MR. MOBERLY, in conclusion, characterized the bill as premature and unnecessary, and suggested that the legislature should postpone any action on these issues until after it has had a chance to review the effects of the recently enacted changes. 3:24:59 PM CYNTHIA KARLSON, Women in Safe Homes (WISH), said that she is testifying in support HB 353, and that she has the perspective of both a victim and a victim's advocate. She relayed that she has seen the effects of sexual assault, on both adults and minors, adding that [the legislature] needs to send the message that society will no longer tolerate such crimes. Sex offenders reoffend when they are released from jail, the effects of their crimes on the victims are long lasting, and so they need to be held accountable. A victim must go through counseling, he/she will have to learn how to trust other people again, and some of the damage done by sexual offenders is lifelong, leaving the victim to pick up the pieces. MS. KARLSON said: "Those of us in Ketchikan want this bill to pass. We cannot any longer let sex offenders continue to reoffend and reoffend. Our children are precious to us, and we need to hold [sexual offenders] ... accountable. ... A light sentence sends a message to the victim that what happened isn't that bad." When victims go to court, they have to relive their assaults all over again, and so to have offenders only get light sentences makes victims lose trust in the criminal justice system and question whether it is worth the effort to go to trial. [HB 353, Version F, was held over.]
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