Legislature(2013 - 2014)CAPITOL 120
02/11/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB73 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 73 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 73 - CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
1:04:28 PM
CHAIR KELLER announced that the only order of business would be
HOUSE BILL NO. 73, "An Act relating to the commencement of
actions for felony sex trafficking and felony human trafficking;
relating to the crime of sexual assault; relating to the crime
of unlawful contact; relating to forfeiture for certain crimes
involving prostitution; relating to the time in which to
commence certain prosecutions; relating to release for violation
of a condition of release in connection with a crime involving
domestic violence; relating to interception of private
communications for certain sex trafficking or human trafficking
offenses; relating to use of evidence of sexual conduct
concerning victims of certain crimes; relating to procedures for
granting immunity to a witness in a criminal proceeding;
relating to consideration at sentencing of the effect of a crime
on the victim; relating to the time to make an application for
credit for time served in detention in a treatment program or
while in other custody; relating to suspending imposition of
sentence for sex trafficking; relating to consecutive sentences
for convictions of certain crimes involving child pornography or
indecent materials to minors; relating to the referral of sexual
felonies to a three-judge panel; relating to the definition of
'sexual felony' for sentencing and probation for conviction of
certain crimes; relating to the definition of "sex offense"
regarding sex offender registration; relating to protective
orders for stalking and sexual assault and for a crime involving
domestic violence; relating to the definition of 'victim
counseling centers' for disclosure of certain communications
concerning sexual assault or domestic violence; relating to
violent crimes compensation; relating to certain information in
retention election of judges concerning sentencing of persons
convicted of felonies; relating to remission of sentences for
certain sexual felony offenders; relating to the subpoena power
of the attorney general in cases involving the use of an
Internet service account; relating to reasonable efforts in
child-in-need-of-aid cases involving sexual abuse or sex
offender registration; relating to mandatory reporting by
athletic coaches of child abuse or neglect; making conforming
amendments; amending Rules 16, 32.1(b)(1), and 32.2(a), Alaska
Rules of Criminal Procedure, Rule 404(b), Alaska Rules of
Evidence, and Rule 216, Alaska Rules of Appellate Procedure; and
providing for an effective date."
1:05:02 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), noting that
the PDA has been working with the Department of Law (DOL) to
address some concerns with HB 73, explained that the PDA's
concern with [Sections 1 and 20-21] of the bill is that in
reversing the Alaska Court of Appeals decision in Collins v.
State, 287 P.3d 791 (Alaska App. 2012), the current language
goes too far, potentially running the risk of precluding certain
factors traditionally considered by the court when determining
whether to refer a particular case to a three-judge sentencing
panel, factors such as the youthfulness of the offender and
his/her lack of a criminal history. Specifically, the
problematic language in Section 21's proposed new
AS 12.55.175(f) - which stipulates that manifest injustice under
the presumptive sentencing ranges may not be established or
found by certain showings - is that which reads, "singly or in
combination" in reference to paragraphs (1)-(3), which outline
showings that the defendant has prospects for rehabilitation
that are less than extraordinary, is a youthful offender, and
does not have a history of unprosecuted, undocumented, or
undetected sexual offenses. The PDA has been working to find
alternative language that would serve to only reverse the
Collins decision, which resulted in a lowering of the standard
used when determining whether to refer a case to a three-judge
sentencing panel.
REPRESENTATIVE LEDOUX expressed disfavor with the way Section 21
is currently written, remarking that it really doesn't make any
sense to her, and suggested that the factor currently outlined
in paragraph (1) - that the defendant has prospects for
rehabilitation that are less than extraordinary - instead be
used to further delineate to whom the provision applies.
MR. STEINER went on to explain that the PDA's concern with
Section 7 of the bill is that as currently written, it's not
clear that a violation has to stem from violating a court order.
The PDA and the DOL, however, have arrived at acceptable
alternative language that would clarify that point. The PDA's
concern with [Sections 10 and 24-26] of the bill - in providing
the court with the discretionary authority to order a respondent
of a protective order to [participate in a monitoring program
with a global positioning device or similar technological means
that meet the guidelines for a monitoring program adopted by the
Department of Public Safety (DPS)] - is that the proposed
changes could result in both practical and constitutional
problems arising should the respondent be unable to obtain such
a device for some reason, such as its lack of availability or
affordability, for example. He indicated that the DOL is in
agreement that any such potential problems with those provisions
should be eliminated.
1:32:10 PM
MR. STEINER explained that the PDA's concern with [Sections 14-
15 and 43-44] of the bill - changing the procedure used when
determining whether a witness in a criminal prosecution is
entitled to transactional immunity under the Fifth Amendment to
the U.S. Constitution - is that the proposed changes could
result in a constitutional challenge if a witness seeking the
immunity is required to testify during the in camera hearing.
And if testimony is required under the bill, there is a risk
that that testimony could be inappropriately disclosed
regardless that it is privileged and inadmissible. Furthermore,
although the bill states that the testimony is inadmissible for
any other purpose, it doesn't yet specify what is meant by the
phrase, "any other purpose".
MR. STEINER explained that the PDA's concern with Sections 16-17
of the bill - requiring that notice for claiming credit toward a
sentence of imprisonment for time spent in a treatment program
be filed at least 10 days prior to a sentencing hearing or a
disposition hearing - is that the proposed changes don't address
situations in which the fact that the defendant spent time in a
treatment program isn't known prior to the 10-day deadline.
This could raise constitutional issues if being given such
credit is a right. The PDA's concern with Section 23 of the
bill is that in requiring a patron of a prostitute [who is a
child] to register as sex offender, it could result in the
patron then being guilty of yet another crime if he/she then
fails to register as a sex offender. The PDA's concern with
Section 31 of the bill is that in adding convictions of an
unclassified sexual felony or a class A sexual felony to the
list of convictions for which [mandatory parole for good
behavior] would not be available, it could result in
perpetrators of such crimes losing the incentive to [behave well
while incarcerated].
1:37:48 PM
MR. STEINER explained that the PDA's concern with Section 36 of
the bill is that in expanding the list of circumstances for
which the court may determine that reasonable efforts to reunite
a child with his/her family need not be taken by the Office of
Children's Services (OCS), it could result in the OCS making
less effort in situations where the court has found by clear and
convincing evidence that the parent or guardian has committed
sexual abuse against that child or against any of his/her other
children, or is registered or required to register as a sex
offender, even in instances where those facts don't have
anything to do with the person's parenting ability. This
concern is tied to the fact that the bill is also proposing to
add to the list of offenses for which a person must register as
a sex offender.
MR. STEINER explained that the PDA's concern with Section 39 of
the bill - providing for a direct court rule amendment
restricting the release/copying of child pornography for
purposes of discovery - is that out-of-state expert witnesses
may have the material sent to them, but in-state expert
witnesses would have to go to where the material is being kept.
The PDA's concern with Section 13 of the bill - excluding
evidence of a sex-offense victim's sexual conduct occurring
either before or after the offense took place, limiting when a
defendant may apply to have such evidence admitted regardless to
not later than five days before trial, and providing an
exception to that limitation if the request is based on evidence
admitted at trial that was not available to the defendant before
trial - is that such evidence [could be made available to the
defendant before the trial but after the five-day deadline has
passed]. This potentially raises a due-process problem because
application for the evidence in such situations would be
precluded under the bill as currently written. He mentioned
that the PDA and the DOL are working on alternative language for
that provision, language that would address the PDA's concern
while still accomplishing the DOL's goal.
REPRESENTATIVE GRUENBERG questioned the rationale for
establishing a five-day limitation on such applications.
MR. STEINER explained that good practice requires evidence
issues to be resolved prior to trial.
REPRESENTATIVE MILLETT pointed out that having such issues
resolved prior to trial also serves to minimize further
victimization of a sex-offense victim during trial.
1:59:38 PM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), noting he'd submitted written
testimony detailing the ACLU of Alaska's concerns with HB 73,
explained that the concern with Sections 1 and 20-21 of the bill
is that they would reverse the aforementioned Collins decision,
which the ACLU of Alaska believes to be setting good policy with
regard to referring perpetrators of felony sex offenses to a
three-judge sentencing panel for purposes of possibly imposing a
sentence below the minimum presumptive sentencing range - good
policy particularly in light of current prison overcrowding.
The concern with Sections 2 and 9 of the bill is that they are a
bit overbroad in removing, respectively, the civil statute of
limitations for felony sex trafficking and human trafficking
crimes, and the criminal statute of limitations for the crimes
of distribution of child pornography, felony sex trafficking,
and human trafficking, because not all of those crimes
necessarily involve the factors that are present in the crimes
for which the statute of limitations have generally been removed
or extended - crimes such as those involving murder or victims
who are children. He asked that those provisions of the bill be
more narrowly tailored such that the statute of limitations is
removed or extended only for those types of crimes.
REPRESENTATIVE MILLETT questioned whether the statute of
limitations should also be removed for sex trafficking crimes
involving people from rural Alaska because of what she referred
to as their cultural inability to comprehend the criminal nature
of the situations they find themselves in.
MR. MITTMAN - offering his belief that existing law regarding
trafficking crimes contains problems in that as currently
written, it could apply to common business activity or to
interpersonal agreements unrelated to trafficking or to
[compelled/induced] sexual conduct - posited that Sections 2
and 9 of the bill could be more narrowly and carefully crafted
to specifically address situations involving a lack of awareness
or a lack of comprehension on the part of the victim. Again, as
currently written, Sections 2 and 9 are overbroad.
REPRESENTATIVE MILLETT expressed a preference for retaining
Sections 2 and 9 as currently written.
REPRESENTATIVE LEDOUX surmised that attorneys representing the
victims of felony sex trafficking or felony human trafficking
crimes in civil cases would be very supportive of Section 2.
2:13:56 PM
MR. MITTMAN relayed that the concerns the ACLU of Alaska has
with Sections 7, 13, 14-15 and 43-44, and 16-17 of the bill are
the same concerns the PDA has with those provisions. As
detailed in the aforementioned written testimony, the ACLU of
Alaska's concern with Section 18 of the bill is that it adds all
the crimes of sex trafficking to the list of crimes for which
the court would be precluded from suspending the imposition of a
sentence; the recommendation, therefore, is that that provision
be rewritten such that it would [add only the crimes of sex
trafficking in the first degree and sex trafficking in second
degree]. The concern with [Sections 10 and 24-26] of the bill -
regarding ordering participation in a monitoring program with a
global positioning device or similar technological means that
meet the guidelines for a monitoring program adopted by the DPS
- is that protective orders can be issued during ex parte
proceedings, thereby raising a constitutional due process
problem that the committee ought to address. He then relayed
that Section 39 of the bill - proposing a direct court rule
amendment restricting access by defense counsel to child
pornography evidence for purposes of discovery - raises
significant constitutional concerns.
MR. MITTMAN, in conclusion, noted that he's provided the DOL
with a copy of the ACLU of Alaska's written testimony detailing
the concerns with HB 73, and that he is hoping to work with the
DOL and other interested parties to come up with helpful fixes
for the committee.
2:19:59 PM
PEGGY BROWN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), said that the ANDVSA is very
supportive of many of the provisions in HB 73. However, the
ANDVSA does have concerns with Sections 24-26 of the bill, the
provisions providing the court with the discretionary authority
to order a respondent of a protective order to participate in a
monitoring program with a global positioning device or similar
technological means that meet the guidelines for a monitoring
program adopted by the DPS. Victims of domestic violence seek
protective orders when they are trying to leave their abusers,
and thus this is the most lethal period of time for such
victims, with the chances of the domestic violence escalating to
a fatal degree being very high. The ANDVSA therefore believes
that ordering a perpetrator of domestic violence - as the
respondent of a civil protective order - to participate in such
a monitoring program would be problematic and probably escalate
an already-violent situation, particularly given that such a
perpetrator wouldn't yet be accountable under the criminal
justice system. Furthermore, research of other states indicates
that none have a monitoring program pertaining to civil
proceedings, and a report issued by a governor's task force in
Maine indicates that any such program isn't suitable for civil
proceedings.
MS. BROWN - referring to Section 10 of the bill, providing the
court with the discretionary authority to order a person charged
with or convicted of a domestic violence crime to participate in
a monitoring program with a global positioning device or similar
technological means that meet the guidelines for a monitoring
program adopted by the DPS if the person is released on bail
before or after trial, or pending appeal - explained that the
aforementioned Maine report also indicates that any such
monitoring program should be managed by the department of
corrections, with its existing supervision and risk-assessment
capabilities, rather than by the department of public safety.
Another concern with Section 10 is that many times, victims
don't attend such bail hearings; other states addressing this
issue recommend that the victim always consent to the
perpetrator participating in such a monitoring program.
MS. BROWN said that the ANDVSA would therefore recommend that
HB 73 be changed such that any monitoring program be managed by
the Department of Corrections (DOC); that it be established as a
pilot project; and that it apply only to [those who have already
been charged with or convicted of a domestic violence crime].
REPRESENTATIVE LEDOUX shared her understanding that with such
monitoring, the perpetrator would be informed of which locations
to avoid, and could therefore extrapolate from that information
where his/her victim is.
MS. BROWN concurred, and, in response to a questions, pointed
out that it's still not known how effective such monitoring is,
though data compiled by the federal Bureau of Justice Statistics
(BJS) indicates that monitoring can have some impact on the
recidivism rates of those that have already been convicted of a
domestic violence crime; observed that [the fiscal note
submitted by the DPS] in members' packets outlines a per-person
cost of $32 per day for passive monitoring; explained that costs
associated with a monitoring program are borne by the state when
respondents themselves are unable to pay; and concurred that
protective orders can be issued ex parte - without the
respondent being present.
2:43:50 PM
DAVID SCHADE, Director, Division of Statewide Services,
Department of Public Safety (DPS), relayed that in 2012, 432
people were arrested 521 times for violating a domestic violence
protective order, resulting in 678 different "counts." This
constitutes an alarming number of violations.
2:46:51 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), in response to questions, indicated that [a monitoring
program such as that being proposed by the bill] could help in
terms of prosecuting violators and making people safer.
MS. BROWN, in conclusion, relayed that the ANDVSA supports many
of the other provisions of HB 73.
2:49:10 PM
LAUREE MORTON, Executive Director, Council on Domestic Violence
and Sexual Assault (CDVSA), Department of Public Safety (DPS),
referring to high sex-offender recidivism rates, indicated
approval of Sections 1 and 20-21 of HB 73 - proposing to reverse
the aforementioned Collins decision - and approval of existing
law's increased sentencing ranges for persons convicted of
felony sex offenses. Statistics from 2006, when those
sentencing ranges were increased, indicate that 78.5 percent of
sex offenders had at least one prior arrest, and averaged four-
and-a-half prior arrests; and that as of January of that year,
93 percent of the 927 then-incarcerated sex offenders had at
least one prior arrest - with the average number of arrests per
sex offender being eleven-and-three-quarters - and 41 percent
had been arrested ten or more times. Furthermore, statistics
from the year 2000 indicate that sex offenders averaged 110
victims and 318 offenses before first being caught, and
statistics from 2012 compiled by the National Center for Missing
& Exploited Children (NCMEC) indicate that an average of 117
children are assaulted by a sexual predator before that predator
is first caught. In 2004, a Canadian study that included
statistics from Washington and California illustrated that even
25 years after being caught, imprisoned, and released,
approximately three out of five sexual predators reoffend.
CHAIR KELLER relayed that HB 73 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| ANDVSA GPS Paper.pdf |
HJUD 2/11/2013 1:00:00 PM |
HB 73 |
| FN - Judicial Council.pdf |
HJUD 2/11/2013 1:00:00 PM |
HB 73 |
| ACLU of AK HB 73 Comments.pdf |
HJUD 2/11/2013 1:00:00 PM |
HB 73 |
| Maine Governor's Task Force Report - DV and Technology.pdf |
HJUD 2/11/2013 1:00:00 PM |
HB 73 |
| ANDVSA HB 73 Comments.pdf |
HJUD 2/11/2013 1:00:00 PM |
HB 73 |