Legislature(2011 - 2012)CAPITOL 120
03/14/2012 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB50 | |
| HB128 | |
| HB359 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 50 | TELECONFERENCED | |
| + | HB 128 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 359 | TELECONFERENCED | |
HB 359 - SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE
2:02:30 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 359, "An Act relating to conspiracy to commit
human trafficking in the first degree or sex trafficking in the
first degree; relating to the crime of furnishing indecent
material to minors, the crime of online enticement of a minor,
the crime of prostitution, and the crime of sex trafficking;
relating to forfeiture of property used in prostitution
offenses; relating to sex offender registration; relating to
testimony by video conference; adding Rule 38.3, Alaska Rules of
Criminal Procedure; and providing for an effective date."
2:04:17 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), noted that
she'd described the provisions of HB 359 during its last
hearing, and, in response to a question, explained that
AS 11.66.110 - currently addressing the crime of promoting
prostitution in the first degree, and which Sections 7 and 8 of
the bill would change to instead address the crime of sex
trafficking in the first degree - stipulates that a reasonable
mistake as to the age of the victim is not a defense; and that
this is similar to the stipulation provided in Section 6 -
proposing to add a new subsection (c) to AS 11.66.100, which
addresses the crime of prostitution - that the age of the victim
is not a circumstance that requires proof of a culpable mental
state. She mentioned that the [Alaska] Court of Appeals - in
Bell v. State - recently upheld the stipulation in AS 11.66.110.
REPRESENTATIVE HAWKER mentioned that questions he'd had
regarding the differences between the proposed statutory
references in Section 12's proposed AS 11.66.140 and those in
Section 13's proposed AS 11.66.145 have since been addressed.
MS. CARPENETI, in response to questions, clarified that under
the changes proposed by [Sections 5 and 6] to AS 11.66.100 -
again, addressing the crime of prostitution - it would be a
class C felony to be the "patron" of a prostitute who is under
18 years of age if the "patron" is at least three years older
than his/her victim, and, again, the prostitute's age wouldn't
be a circumstance that requires proof of a culpable mental
state, meaning that it wouldn't matter what age the "patron"
thinks his/her victim is; furthermore, that statute - both
existing and as proposed under the bill - does not currently
provide for an affirmative defense based on a reasonable mistake
as to the age of the victim. Under the bill, if the prostitute
- the victim - is instead 18 years of age or older, a violation
of that statute would remain a class B misdemeanor, though
comments received from the Public Defender Agency (PDA) indicate
that Section 6 ought to be changed in order to clarify that the
proposed increase in penalty to a class C felony only applies to
the "patron," not the victim. In addition to reiterating that
AS 11.66.110 stipulates that a reasonable mistake as to the age
of the victim is not a defense, she also mentioned that with
regard to Alaska's sexual assault and sexual abuse of a minor
crimes, AS 11.41.445(b) states:
(b) In a prosecution under AS 11.41.410 -
11.41.440, whenever a provision of law defining an
offense depends upon a victim's being under a certain
age, it is an affirmative defense that, at the time of
the alleged offense, the defendant
(1) reasonably believed the victim to be that age
or older; and
(2) undertook reasonable measures to verify that
the victim was that age or older.
MS. CARPENETI, in response to further questions, indicated that
she would be amenable to perhaps adding similar affirmative-
defense language to the bill's proposed AS 11.66.100, though
another option, she ventured, would perhaps be to instead add a
culpable mental state of criminal negligence to that provision.
REPRESENTATIVE GRUENBERG expressed concern with that provision's
current lack of an affirmative defense for the perpetrator.
2:12:35 PM
CHAIR GATTO pointed out that when a perpetrator makes an
assumption with regard to his/her victim's age, the perpetrator
is taking a pretty big risk; and expressed disfavor with the
[oft-heard] excuse, "Well, I had no idea she was that young."
MS. CARPENETI, in response to further comments and questions,
explained that the purpose of the bill's proposed changes to
AS 11.66.100 is to protect children who are being victimized by
persons promoting prostitution - or, the crime of sex
trafficking, as that activity would be called after passage of
the bill; the statutes pertaining to that crime embody a
different societal interest than those pertaining to sexual
assault and sexual abuse of a minor crimes. She again noted
that the statute pertaining to the first degree crime - AS
11.66.110, violations of which are [either a class A felony or]
an unclassified felony - does not provide for an affirmative
defense based on a reasonable mistake as to the age of the
victim; and that she would be amenable to perhaps adding
affirmative-defense language to the bill's proposed
AS 11.66.100. Again, the goal of Sections 5 and 6 is to protect
children from adults who would victimize them.
MS. CARPENETI reiterated that another option - if the committee
is not in favor of the changes currently provided by Sections 5
and 6, or of adding affirmative-defense language - could be to
perhaps instead add a culpable mental state to the bill's
proposed AS 11.66.100, thereby requiring the state to prove
beyond a reasonable doubt that the "patron" acted with criminal
negligence - or with some other culpable mental state as the
committee prefers - with regard to the age of the victim. In
response to comments, she confirmed that providing for an
affirmative defense puts the burden of proof on the defendant,
whereas providing for a culpable mental state would keep the
burden on the state; and reiterated that under the changes
currently proposed by [Sections 5 and 6] to AS 11.66.100, it
would be a class C felony to be the "patron" of a prostitute who
is under 18 years of age if the "patron" is at least three years
older than his/her victim, but otherwise violations of that
statute would remain a class B misdemeanor.
CHAIR GATTO surmised that a mistake as to age will always be
offered as a defense by people who get caught having sex with
children.
2:18:35 PM
REPRESENTATIVE PRUITT opined that it's important to understand
the rationale for making it a felony to be the "patron" of a
prostitute who is under 18 years of age, that being that
generally such children have not become prostitutes of their own
free will but have instead been forced into it by people engaged
in sex trafficking. This has become a huge problem in rural
Alaska, in that children from the villages, after being
presented with "an opportunity" to come to the big city, are
then being forced into becoming sex slaves once they arrive.
The changes proposed by Sections 5 and 6 of the bill are
intended to address this problem, and serve as a deterrent. In
conclusion, he indicated disfavor with providing for an
affirmative defense based on a mistake as to the age of the
victim, because the goal is to protect children from having
their lives ruined by being turned into sex slaves.
REPRESENTATIVE GRUENBERG continued to express concern with the
lack of an affirmative defense based on a reasonable mistake as
to the age of the victim, and offered a hypothetical example
involving a member of the military who pays a child to have sex
with him.
REPRESENTATIVE PRUITT again remarked on the potential for the
bill's proposed changes to AS 11.66.100 to serve as a deterrent
to such people.
REPRESENTATIVE KELLER pointed out that in Representative
Gruenberg's hypothetical example, the military member is still a
predator. He expressed favor with making such behavior a
class C felony as Sections 5 and 6 - as currently written - are
proposing to do.
MS. CARPENETI, in response to a question, explained that the
maximum sentence for a class C felony is five years. She
concurred that in Representative Gruenberg's hypothetical
example, the military member is a predator. The governor, in
proposing these changes to AS 11.66.100, she relayed, is trying
to address the problem described by Representative Pruitt,
trying to get at those who are willing to take the risk that the
person they are paying to have sex with is a child.
2:24:19 PM
REPRESENTATIVE HOLMES made a motion to adopt Conceptual
Amendment 1, to delete Section 20 in its entirety and renumber
the remaining sections accordingly.
REPRESENTATIVE KELLER objected for the purpose of discussion.
REPRESENTATIVE HOLMES explained that Section 20 is proposing to
add to AS 12.63.100(6) - which defines the term, "sex offense"
for purposes of requiring a person in Alaska to register as a
sex offender or child kidnapper - a new subparagraph (D) that
would additionally define a sex offense as being a crime in
another jurisdiction that requires the person to register as a
sex offender or child kidnapper in that other jurisdiction. The
rationale for deleting Section 20, she relayed, is that other
jurisdictions that maintain a sex offender registry sometimes
criminalize behavior that isn't illegal in Alaska, and thus
under Section 20, the Alaska State Legislature's authority to
decide what behavior should or shouldn't constitute a
registrable offense would be delegated to all those other
jurisdictions. That doesn't quite seem right, she concluded.
REPRESENTATIVE HAWKER expressed favor with Amendment 1, adding
that he thinks it's wrong for the legislature to abdicate its
responsibility as a law-making body. He mentioned, though, that
he would be amenable to perhaps adding certain specific offenses
to AS 12.63.100(6).
REPRESENTATIVE HAWKER also mentioned that if Conceptual
Amendment 1 is adopted, he would be offering an additional
amendment to "zero out" the Department of Public Safety's
(DPS's) fiscal note of $124,200, because it's based solely on
the anticipated fiscal impact Section 20 would have on the
department. In response to a question, he drew members'
attention to the indeterminate fiscal notes accompanying HB 359.
CHAIR GATTO observed that a letter from the American Civil
Liberties Union of Alaska (ACLU of Alaska) in members' packets
indicates opposition to Section 20, with page 6 of that letter
stating in part, "Section 20 Is Unwise; It Shackles Alaska's
Policy to Every Other Jurisdiction".
REPRESENTATIVE HOLMES pointed out that if someone is convicted
of a registrable offense in another jurisdiction, and that
offense is similar to a registrable offense in Alaska, then
[under existing AS 12.63.100(6)] the person would still be
required to register in Alaska; this would not change under
Conceptual Amendment 1. In comparison, the language Section 20
is proposing to add doesn't' specify that the offense in that
other jurisdiction has to be one that is similar to a
registrable offense under Alaska law.
2:32:33 PM
KATHRYN MONFREDA, Chief, Criminal Records and Identification
Bureau, Division of Statewide Services, Department of Public
Safety (DPS), in response to questions, after noting that she is
responsible for managing Alaska's sex offender registry,
mentioned that the courts have already addressed the issue of
who may be required to register as a sex offender, and that
sometimes other jurisdictions do notify Alaska when someone who
formerly had to register in Alaska then registers in their
jurisdiction; acknowledged that perhaps some sex offenders leave
Alaska in search of a jurisdiction in which they won't have to
register; and indicated that to the DPS's knowledge, that isn't
a widespread problem.
REPRESENTATIVE KELLER said he was going to remove his objection
to adopting Conceptual Amendment 1, expressed agreement with the
ACLU of Alaska's aforementioned point regarding Section 20, and
asked Ms. Carpeneti to comment.
MS. CARPENETI said that the other side of the argument is that
if sex offenders from other states are able to avoid registering
in their "home" state simply by coming to Alaska, then Alaska
will become the place where sex offenders move to in order to
avoid having to register as sex offenders. This is a public
safety issue for the legislature to make a decision about, but
the DOL's position, hence the inclusion of Section 20's proposed
change to 12.63.100(6), is that it is in the public interest not
to have Alaska become a state where people who have to register
in other states come because they won't have to register here.
REPRESENTATIVE KELLER acknowledged that point, but offered his
understanding that there are already other ways of keeping track
of people who move to Alaska with a criminal record.
MS. CARPENETI said she is not familiar with any such procedure.
Only when a person who's moved to Alaska commits a crime in
Alaska is the state then able to take steps to research the
person's criminal record.
2:37:25 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), concurred - absent such a person voluntarily contacting
the state, law enforcement officers would have no way of knowing
of his/her presence in the state until they have a specific
reason to contact him/her and investigate his/her background.
CHAIR GATTO remarked that the objection was removed, ascertained
that there were no further objections, and announced that
Conceptual Amendment 1 was adopted.
2:40:02 PM
REPRESENTATIVE HAWKER made a motion [to adopt Conceptual
Amendment 2, to adopt a zero fiscal note in place of fiscal note
number 6 from the Department of Public Safety]. He again
offered his understanding that that fiscal note's estimated
impact on the DPS is based solely on Section 20, which has been
deleted.
2:40:57 PM
DAVID SCHADE, Director, Division of Statewide Services,
Department of Public Safety (DPS), confirmed Representative
Hawker's understanding.
REPRESENTATIVE GRUENBERG [although no objection had been stated]
removed his objection.
CHAIR GATTO ascertained that there were no objections, and
announced that Conceptual Amendment 2 was adopted.
REPRESENTATIVE HOLMES offered her belief that HB 359 requires
further work.
CHAIR GATTO relayed that HB 359 [as amended] would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 128 (TRA) Hearing Request.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| CSHB 128 (TRA) Sponsor Statement.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| CSHB 128 (TRA).pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| CSHB 128 Crash Data.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| CSHB 128 Explanation of Changes.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| CSHB 128 Letter of Support Allstate.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| HB 128.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| HB50 ver A.pdf |
HJUD 3/14/2012 1:00:00 PM HL&C 4/4/2011 3:15:00 PM |
HB 50 |
| HB50 Sponsor Statement.pdf |
HJUD 3/14/2012 1:00:00 PM HL&C 4/4/2011 3:15:00 PM |
HB 50 |
| HB50 Sectional Analysis.pdf |
HJUD 3/14/2012 1:00:00 PM HL&C 4/4/2011 3:15:00 PM |
HB 50 |
| CSHB 128 Letter of Support APDEA.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| CSHB 128 Letter of Support APOA HB 15.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 15 HB 128 |
| CSHB 128 Letter of Support NSC HB 15.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 15 HB 128 |
| CSHB 128 Letter of Support State Farm.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| CSHB 128 Studies and Articles.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| HB0128-2-2-030212-DPS-N.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| HB0128-1-2-030212-LAW-N.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 128 |
| HB 50 support documents - emails.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 50 |
| HB 50 fiscal note.pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 50 |
| HB 359 ACLU Review 2012 03 04 (2).pdf |
HJUD 3/14/2012 1:00:00 PM |
HB 359 |
| Bell v State.pdf |
HJUD 3/14/2012 1:00:00 PM |