Legislature(2007 - 2008)CAPITOL 120
04/23/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB3 | |
| HB164 | |
| HJR7 | |
| HB213 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 194 | TELECONFERENCED | |
| += | HJR 7 | TELECONFERENCED | |
| += | HB 213 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 164 | TELECONFERENCED | |
| += | HB 3 | TELECONFERENCED | |
HB 213 - CRIMES AT DOMESTIC VIOLENCE SHELTERS 2:38:49 PM CHAIR RAMRAS announced that the final order of business would be HOUSE BILL NO. 213, "An Act relating to an aggravating factor at sentencing for crimes committed at certain shelters and facilities." [Before the committee was CSHB 213(HES).] 2:39:18 PM CHRIS ASHENBRENNER, Interim Program Administrator, Council on Domestic Violence and Sexual Assault (CDVSA), Department of Public Safety (DPS), noted that members' packets contain a letter of support for HB 213 from the CDVSA. She offered her understanding that an incident at the AWARE (Aiding Women in Abuse and Rape Emergencies) shelter in Juneau engendered HB 213, and, after briefly describing that incident, relayed that such incidents are not unique in Alaska: perpetrators [of sexual assault and domestic violence] across the state continue to pursue their victims even when they are in a safe home or shelter. She opined that it is important to hold such perpetrators extra accountable for those crimes; accountability for such perpetrators is a key factor in stopping such offenses and helping to make the people in shelters safer. MS. ASHENBRENNER, in response to a question, relayed that although perhaps there are other institutions that need protection from individuals that are angry at the system, perpetrators of domestic violence and sexual assault are generally after a particular victim - a victim whom the perpetrator has victimized and hurt before. REPRESENTATIVE SAMUELS questioned what the term, "offense", as used on line 5 of the bill, means. 2:43:53 PM GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency (LAA), speaking as the drafter of HB 213, offered his understanding that the term "offense" as used in the bill refers to any felony offense under Title 11. Thus, he surmised, it could apply to one who commits embezzlement while at a shelter. REPRESENTATIVE SAMUELS asked for clarification regarding the term, "recognized shelter". MR. LUCKHAUPT explained that the House Health, Education and Social Services Standing Committee inserted the term "recognized" because the state doesn't recognize all shelters. For example, in some rural areas there are certain houses that are known to be safe houses, and so the state would have to prove that the crime did occur at a "recognized" shelter. 2:46:21 PM REPRESENTATIVE SAMUELS expressed interest in limiting the bill such that it only applied to crimes associated with someone at a shelter - not just all felonies. MR. LUCKHAUPT surmised that those would be felony crimes against a person under AS 11.41, or arson in the first degree under AS 11.46.400. REPRESENTATIVE COGHILL questioned whether some of the crimes listed in those statutes fall outside of the realm of domestic violence acts. MR. LUCKHAUPT acknowledged that it would be up to the legislature to decide which felony crimes the proposed aggravating factor should apply to. REPRESENTATIVE COGHILL indicated that he wants to include just those felony crimes that are specifically targeted [at the people in a shelter or at the shelter itself simply because of the fact that it protects victims of domestic violence and sexual assault]; for example, committing certain property crimes could be connected to domestic violence and sexual assault issues. MR. LUCKHAUPT, in response to a question, offered his understanding that it is the prosecutors who have the authority to decide whether to seek an aggravating factor at sentencing, and the judge, if that factor is proven beyond a reasonable doubt, can then take into account that aggravating factor during sentencing and decide how much weight to give it when determining whether the sentence should exceed the presumptive sentencing scheme set out in statute. In response to another question, he pointed out that the perpetrator to which this bill applies wouldn't necessarily have had any prior charges related to domestic violence or sexual assault against him/her before then committing the felony crime at the shelter, and mentioned that the crime of burglary consists of breaking into a building with the intent to commit any crime inside that structure, and that the crime of burglary is always a felony crime under Alaska law. 2:56:20 PM REPRESENTATIVE LYNN surmised that the intent of the bill is to protect people who are already victims who've sought help at domestic violence and sexual assault shelters, which are often run on small budgets; thus even the crimes of burglary and embezzlement constitute an indirect assault on [all the victims] because a perpetrator is damaging these facilities via the crime he/she is committing. He remarked, therefore, that he would like to see the bill apply to all felony crimes. REPRESENTATIVE SAMUELS pointed out, though, that under the bill, a person embezzling from a shelter would be treated differently than if he/she were embezzling from any other nonprofit organization regardless that his/her crime has no direct connection to the victims of the shelter. REPRESENTATIVE DAHLSTROM noted that sometimes a victim of domestic violence or sexual assault will take shelter in someone's private residence, and so by including the qualifier, "recognized", an assault on the victim in that home would be treated like a lesser crime than if the victim were staying at a "recognized" shelter. MR. LUCKHAUPT clarified that the crime itself is still the same regardless of where it occurs. The bill is simply proposing to provide for an aggravating factor that could be applied if the crime took place at a recognized shelter, whereas that aggravating factor [couldn't] be applied in situations involving someone's private residence - just the presumptive sentencing scheme for that crime would be used. 3:01:08 PM SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse and Rape Emergencies Inc (AWARE), relayed that she would be speaking in support of HB 213. When people come to AWARE Inc. for services, there is a higher expectation of and need for safety - they are a specific high-risk population because of the domestic violence or sexual assault that they've endured. Confirming that the Aware Inc. shelter did suffer a break-in the summer of 2005 to the administrative side of the facility, she expressed support for the concept of holding such perpetrators accountable. REPRESENTATIVE GRUENBERG, noting that he agrees that certain crimes are not particularly related [to the issues of domestic violence and sexual assault] - for example, the crime of forgery - said he's been reviewing the range of felony crimes that the bill should apply to because those crimes could have a nexus with a domestic violence shelter, and a number of them are not considered to be crimes against a person: criminal mischief, solicitation, conspiracy, and various weapons offenses. He opined, therefore, that it is important to determine which specific crimes should be subject to this proposed aggravating factor. 3:04:24 PM PEGGY BROWN, Executive Director, Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), relayed that statewide, there is an increased level of violence, and that when people come to a shelter for help, there is a presumption of safety. House Bill 213 is intended to address acts of terroristic threatening or other kinds of misbehavior towards shelter inhabitants and staff by those who have broken into a shelter. She indicated that HB 213 will send a clear message that one shouldn't break into a place of safety - it won't be tolerated. 3:06:05 PM DON SHIRCEL, Tanana Chiefs Conference, Inc. (TCC), relayed that over the years, tribal leaders of Interior Alaska villages have passed numerous resolutions at the TCCs annual convention focusing on the need to provide safety to residents of rural Alaska. Unfortunately, women and other victims of domestic violence who reside in Alaska's rural communities have nowhere near the access to the protections and services afforded other Alaskan citizens who reside in the state's more metropolitan areas. Many victims of domestic violence living in remote villages of the Interior rely on local safe homes which have been established through federal funding obtained by their tribal governments under the Family Violence Prevention and Services Act. MR. SHIRCEL said that local individuals who work with their tribal government to provide a safe place for victims of domestic violence do so with the knowledge that they have little or no backup from state law enforcement and only limited support from its judicial system in the event that a perpetrator elects to violate the haven they provide to victims and children. House Bill 213 is a step in the right direction and at the very least sends a strong message that the consequences for felonious acts perpetrated at a shelter or safe home can and should be based on what they really are - escalated acts of violence which can result in harsher penalties. The TCC, he concluded, strongly supports HB 213 and hopes the committee will move the bill from committee and support its passage into law. 3:08:19 PM LINDA STANDFORD, Program Coordinator, Arctic Women in Crisis (AWIC), relayed that in addition to [AWIC's main] shelter, AWIC has safe homes in all of the region's villages; these safe homes are not funded - volunteers simply open up their homes anytime, day or night. She said she is speaking in support HB 213, and hopes that the state will send a strong message that offenders will be held accountable. Safety must be the primary goal and concern. When women and children arrive at AWIC's doors, they are expecting to find a safe haven, so when individuals terrorize staff and clients, everything is changed. She then mentioned a couple of instances of the sort of behavior that HB 213 is meant to address. Last July, a perpetrator was angry at another of AWIC's clients for giving his victim a ride, and so he beat in her windshield and threatened shelter staff and other residents - this perpetrator's behavior terrified all the women and children at the shelter. Four years prior to that incident, a perpetrator attempted to break into the shelter - he was totally focused on getting a hold of his victim - and he almost got through the door before the police arrived; this, too, was terrifying for the residents and staff. Criminals know how far they can go and how much they can get away with, so if the state sends a strong message to them, they will probably hear it. MS. STANDFORD relayed that there have been several instances of this sort of behavior occurring in the volunteer safe homes, which, again, are not funded. In one instance, a perpetrator beat on the house all through the day and night for two days. In these outlying villages, these volunteer homes are known by all in the community as a safe home - as safe shelter. There have even been instances of women and children running to these shelters with their perpetrators still chasing them. "We really do need additional help in keeping the victims safe and also keeping shelter staff safe," she said, and asked the committee to send a strong message that acts of violence and/or trespassing will be taken seriously. She asked the committee to give strong consideration to ensuring that the bill applies to any acts of violence on a shelter's premises, not just crimes against persons. CHAIR RAMRAS, after ascertaining that no one else wished to testify, closed public testimony on HB 213. 3:13:11 PM RICK SVOBODNY, Deputy Attorney General, Criminal Division, Office of the Attorney General, Department of Law (DOL), relayed that the term, "recognized" was added to delineate between someone's private home and a shelter situation. When criminal laws are drafted, he explained, the DOL attempts to define each term as best it can so that a case won't be voided for vagueness, and surmised that by including the term, "recognized", a jury will be instructed to use a person's common understanding of that term and will then have to consider whether the incident involved a person who merely allowed a victim on the run from a perpetrator to stay in the back of the person's store for a few minutes, for example, or whether it involved a facility that is specifically operated to provide shelter for people. MR. SVOBODNY suggested that one way of easily dealing with the issue of which offenses are covered is to say that they must be crimes that involve domestic violence as defined under Title 18. And because HB 213 proposes to add an aggravating factor to statute, it will only legally apply in felony cases, although in situations where a perpetrator is only charged with a misdemeanor crime, a prosecutor could then point out to the sentencing judge that an aggravating factor would have applied had the same crime risen to a felony level. MR. SVOBODNY, with regard to the question of what would happen if a victim sought shelter in a someone's private residence and the victim's perpetrator attempted to get at him/her, explained that the DOL already treats crimes that occur in private residences as more serious than crimes that occur in some other type of building, and HB 213 will do something similar but via the proposed aggravating factor. In other words, regardless of what the ensuing crime is, if an offender unlawfully enters and/or remains in a private residence to commit a crime, it would be considered a class B felony simply because the offender entered and/or remained in a private residence to commit that crime. Currently, without HB 213, if a perpetrator broke into a shelter, he/she could be charged with a class A misdemeanor. However, such an incident could involve circumstances about which a prosecutor could argue that a shelter is also a dwelling depending on what part of the shelter the perpetrator entered. 3:19:28 PM REPRESENTATIVE HOLMES asked whether, if the committee goes with Mr. Svobodny's suggestion to have the bill apply only to crimes that involve domestic violence as defined under Title 18, the bill would apply to someone who broke into a shelter with the intent to commit another crime even if no further crime is committed, and whether it would apply to arson at a shelter. MR. SVOBODNY indicated that it would apply to instances involving arson, and reiterated that entering or remaining in a building unlawfully in order to commit another crime is in and of itself an offense, though there could be difficulty in proving a person's intent. For example, if a person is outside a shelter creating a disturbance and promising to break in and promising to hurt someone once inside, that behavior could rise to the level of a class C felony, or, if the person gets inside and gets as far as attempting to break into the victim's individual room, that crime could rise to the level of burglary in the first degree. REPRESENTATIVE GRUENBERG said: This generally looks like a good starting point, but it doesn't look to me like it covers some crimes that ought to be covered, and it covers [some] that [it] shouldn't because they're misdemeanors. For example, harassment under subsection (h) is a misdemeanor, I believe; (g), violating a protective order, is a misdemeanor. Certain crimes against the person would be misdemeanors, too, but that would shake itself out if you just said, "under 11.41". But I think there are some others that are not included in here that ought to be, such as solicitation to commit any of these crimes - which means getting somebody else to do it - ... any of the conspiracy statutes that apply ought to be on here, and I think there's some weapons offenses that aren't on here that ought to be. MR. SVOBODNY said he agrees with those comments in part, specifically with the idea of including crimes involving solicitation. With regard to the misdemeanors that Representative Gruenberg mentioned, he pointed out that they wouldn't be covered anyway because aggravating factors only apply to felony crimes. REPRESENTATIVE GRUENBERG asked whether crimes involving conspiracy or crimes involving weapons ought to be included. MR. SVOBODNY said that with regard to conspiracy, there are only a few crimes that conspiracy applies to, one being homicide and another being sexual assault. With regard to weapons offenses, he indicated that he would have no opposition to including them, adding that if a convicted felon possesses a firearm and takes it onto a shelter's premises, it ought to be treated as an aggravated offense. REPRESENTATIVE GRUENBERG referred to Conceptual Amendment 1, and explained that it would make the bill also apply to offenses that affect persons or property on the premises; Conceptual Amendment 1 read [original punctuation provided]: p 1 l 5 after "on" add "or to affect persons or property on" REPRESENTATIVE GRUENBERG asked Mr. Svobodny whether any crimes other than those that have already been discussed ought to be added to HB 213. MR. SVOBODNY indicated that he knows of no other crimes. 3:26:27 PM REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 1, and explained that it would cover someone who is not physically on the premises but who takes an action that affects persons or property on the premises: for example, someone standing across the street from a shelter and shooting a gun at the building or its residents or staff. REPRESENTATIVE DOLL characterized the change proposed by Conceptual Amendment 1 as a good idea, conceptually. She mentioned, though, that she doesn't want the bill changed such that it gets out hand and applies to "twenty other kinds of crimes." CHAIR RAMRAS asked whether there were any objections to Conceptual Amendment 1. There being none, Conceptual Amendment 1 was adopted. 3:28:38 PM REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 2 such that proposed AS 12.55.155(c)(34) would apply to crimes that involve domestic violence as defined in AS 18.66.990, solicitation to commit "any of these domestic violent crimes listed," conspiracy as it would apply already to certain of these crimes, and felony weapons offenses. MR. LUCKHAUPT, in response to a question, said that the problem with using the definition of a crime involving domestic violence is that it requires the victim of the crime to be a household member of the offender, and so if the intended victim of the perpetrator's act is an employee, the crime would no longer be covered. REPRESENTATIVE DOLL, in response to a question, concurred that Conceptual Amendment 2 is too broad. REPRESENTATIVE GRUENBERG withdrew Conceptual Amendment 2. REPRESENTATIVE LYNN moved to report CSHB 213(HES), as amended, out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, CSHB 213(JUD) was reported from the House Judiciary Standing Committee.
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