Legislature(2013 - 2014)CAPITOL 120
03/22/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB34 | |
| HB73 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 102 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 34 | TELECONFERENCED | |
| += | HB 73 | TELECONFERENCED | |
HB 73 - CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
[Contains mention that the proposed committee substitute (CS)
for HB 73, Version U, mirrors the language in the current
version of the Senate companion bill, CSSB 22(JUD).)
1:52:00 PM
CHAIR KELLER announced that the final 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."
1:52:09 PM
REPRESENTATIVE LYNN moved to adopt the proposed committee
substitute (CS) for HB 73, Version 28-GH1587\U, Strasbaugh,
3/20/13, as the working document.
CHAIR KELLER objected, and explained that Version U mirrors the
latest version of the companion bill being heard in the Senate -
CSSB 22(JUD). He then removed his objection, ascertained that
there were no further objections, and announced that Version U
was before the committee.
1:55:46 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), explained
that under Version U of HB 73, a new Section 7 would add to the
statutes providing for the affirmative defense of marriage, the
crime of sexual assault in the fourth degree; and a new
Section 8 would add to the statutes providing for defenses, an
affirmative defense - specific to [the crimes of sexual assault
in the third and fourth degrees] wherein the offender is a
person employed as or acting as a probation officer or parole
officer, and the victim is a person on probation or parole - of
having a preexisting dating or sexual relationship with the
victim. In response to questions, she explained that when like
changes were made to the Senate companion bill, Version U's new
Section 8 engendered no controversy; that under Version U's new
Section 7, it would not be a crime for a probation/parole
officer to engage in [sexual contact] with his/her spouse who is
on probation or parole; that in the crimes of sexual assault in
the third and fourth degrees wherein the offender is someone
employed or acting as a probation/parole officer and the victim
is someone on probation or parole, the victim need not have been
directly supervised by the offender, because the offender would
still have been abusing his/her position of authority; that
under the language of the bill, the offender would have to have
acted with [reckless disregard] that the victim was on
probation/parole; that that term is defined in statute as
meaning that the offender was aware of but consciously
disregarded the risk that the victim was on probation/parole;
that the state would have to prove that fact beyond a reasonable
doubt; and that the bill is proposing to alter the statutes
related to the crimes of sexual assault in the third and fourth
degrees in order to address a gap in the law that came to light
last year when a probation officer working at a therapeutic
court in Anchorage coerced persons under his supervision to have
sex with him.
MS. CARPENETI explained that under Version U of HB 73, what is
now Section 9 was redrafted and like clarifying changes to the
Senate companion bill didn't engender any controversy; under
this provision, [the statute pertaining to the class A
misdemeanor crime of unlawful contact in the first degree] would
apply to a person under official detention who [knowingly
contacts or attempts to contact] a witness or a victim in
violation of a court order. This addresses a gap that was
brought to light when a person in Fairbanks, as a condition of
bail, was ordered not to contact the victim, but because the
person couldn't meet the conditions of bail and was therefore
still incarcerated when he contacted the victim in violation of
the order, existing statute didn't apply.
2:08:24 PM
MS. CARPENETI explained that under Version U of HB 73, what is
now Section 10 was redrafted such that [the forfeiture provision
addressing the crimes of prostitution and sex trafficking in the
fourth through first degrees would apply equally to all of the
manifestations of those crimes] but only upon conviction, and
forfeiture would be discretionary rather than mandatory.
CHAIR KELLER expressed favor with Version U's Section 10.
REPRESENTATIVE GRUENBERG, referring to that new discretionary
aspect, characterized Version U's Section 10 as better but
draconian nonetheless, and relayed that he might therefore be
seeking to delete Section 10 from the bill or significantly
narrow it.
MS. CARPENETI mentioned that allowing for the forfeiture of
property is not uncommon under Alaska law, though such
provisions are rarely used. In response to questions, including
one regarding what would occur if the perpetrator sold property
subject to forfeiture prior to his/her conviction, she offered
to research the state's forfeiture law further.
MS. CARPENETI explained that under Version U, HB 73 is no longer
proposing to add language regarding [electronic monitoring] to
Alaska's civil statutes pertaining to protective orders;
instead, [what are now Sections 12 and 13 of Version U] are
proposing to amend Alaska's criminal statutes pertaining to bail
in order to provide the court with the discretionary authority
to order a person charged [with a stalking crime or 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 Department of Corrections (DOC) in
consultation with the Department of Public Safety (DPS).
MS. CARPENETI explained that under Version U of HB 73, what is
now Section 16 was redrafted. This provision would ensure that
for the crimes of sexual assault, sexual abuse of a minor, and
unlawful exploitation of a minor, [or for attempts to commit
such crimes,] the provision that excludes evidence of a sex-
offense victim's sexual conduct would apply to conduct occurring
either before or after the offense took place; would limit when
a defendant may apply to have such evidence admitted regardless,
to not later than five days before trial; and would now provide
an exception to that limitation for good cause or if the request
is based on information learned after that deadline [or during
the trial]. In response to comments and questions, she relayed
that the addition of the phrase, "for good cause" to that
exception was suggested by those she referred to as "the defense
bar."
2:17:44 PM
MS. CARPENETI explained that under Version U, HB 73 is no longer
proposing to amend the statutes and court rules regarding
[transactional] immunity; the removal of those provisions from
the bill addresses a concern that as changed by the original
version of the bill, the applicable statutes and court rules
might be misused. She mentioned that the DOL would have
preferred that those provisions be retained, however. Under
Version U of HB 73, she went on to explain, what are now
Sections 17 and 18 were redrafted such that in addition to
requiring that notice for claiming credit toward a sentence of
imprisonment for time spent in a treatment program as a
condition of bail or probation be filed 10 days prior to a
hearing, they now also include a stipulation that the court may
not - except for good cause - consider a request to allow such
credit if the request is made more than 90 days after either a
sentencing hearing or a disposition hearing, or - under new
language in Version U's proposed Section 17 addressing
situations involving an appeal - after return of the case to the
trial court. In response to questions, she offered her
understanding that the court has to grant such a defendant
permission to enter a treatment program to begin with, and
relayed that Section 17's language addressing situations
involving an appeal was suggested by the Public Defender
Agency (PDA).
MS. CARPENETI explained that under Version U of HB 73, what are
now Sections 21 and 22 were redrafted to address the PDA's
concerns that in reversing the recent Alaska Court of Appeals
decision in Collins v. State, 287 P.3d 791 (Alaska App. 2012),
the original version of the bill went too far because it
contained language pertaining to youthful offenders; those
provisions now no longer contain that language but do include
language stipulating that a referral may not occur if the
request for it is based solely on the claim that the defendant,
either singly or in combination, has prospects for
rehabilitation that are less than extraordinary, or has a
history free of unprosecuted, undocumented, or undetected sexual
offenses. The language, "based solely on the claim" was
suggested for inclusion by the PDA, she relayed, and offered her
belief that the changes made to those provisions would clarify
them and allow them to more directly address the court's
decision in Collins.
2:24:20 PM
MS. CARPENETI explained that under Version U of HB 73, a new
Section 25 would provide [another] conforming change to the
statutes addressing the warnings on protective orders to reflect
that the maximum fine for a misdemeanor violation of such an
order has recently been raised from $5,000 to $10,000. Under
Version U of HB 73, what is now Section 27 was redrafted such
that the definition of the term, "victim counseling center"
would now also include organizations operated by or contracted
by a branch of the armed forces of the United States; again, the
bill is proposing to amend that definition in order to ensure
that communications between victims of domestic violence and
counselors working at a military victim counseling center remain
confidential, but there was a concern that the term, "military
organization" was a little bit too broad for inclusion in that
definition. In response to questions and comments, she offered
her understanding that the definition [Version U's Section 27]
is proposing to expand already addresses [victim counseling
centers operated by] Native organizations, tribal organizations,
and village organizations, for example. She agreed to research
the issue further, though, and then suggest to the committee any
changes that may be necessary to ensure that that definition
includes all the committee wishes it to.
MS. CARPENETI explained that under Version U of HB 73, what is
now Section 29 was redrafted such that for judges seeking
retention, the Alaska Judicial Council (AJC) would be required
to provide the public with information about judges'
consideration of victims when imposing sentences for felony
offenses that involve victims; Section 29's redrafted language -
which no longer contains a reference to AS 12.55.025(a)(5) -
addresses the concerns expressed by the Alaska Court System
(ACS). Under Version U of HB 73, what is now Section 34 was
redrafted such that for purposes of providing the attorney
general with the authority to designate someone else to address
applications for administrative subpoenas seeking business
records from Internet service providers in cases involving child
pornography, [online enticement of a minor, and unlawful
exploitation of a minor crimes,] the attorney general's designee
may be [a deputy attorney general]; she mentioned that this
change was made to the Senate companion bill in order to address
concerns that the designee be someone with sufficient
experience. Under current law, only the attorney general may
address such applications.
REPRESENTATIVE GRUENBERG - pointing out that the DOL's [two]
deputy attorneys general could both be unavailable at the same
time the attorney general is unavailable - indicated a
preference for the language originally proposed for that
provision, requiring only that any such designee be an attorney
employed by the DOL, because that language would provide the DOL
with sufficient flexibility in instances wherein the immediate
consideration and issuance of such an administrative subpoena is
required.
MS. CARPENETI acknowledged that that was the rational for
proposing that provision's original language.
2:34:40 PM
MS. CARPENETI explained that under Version U of HB 73, a new
Section 37 would provide certain volunteer athletic coaches with
an exemption from the provisions of the bill proposing to add
athletic coaches to the list of people who would be required to
report instances of suspected child abuse/neglect; under
Version U, the only volunteer athletic coaches who would be
required to report would be those who: volunteer for more than
four hours a week for four consecutive weeks or for more than
twenty hours in a one-month period, have received the training
required under AS 47.17.022 or similar training, and have signed
a form acknowledging that he/she is required to report child
abuse/neglect under AS 47.17.020.
CHAIR KELLER noted that members still have concerns with those
provisions of the bill and that therefore amendments to them
would be forthcoming.
REPRESENTATIVE LEDOUX relayed that the proposed exemption still
doesn't alleviate her concerns with the bill's proposal to add
volunteer athletic coaches to the list of those who would be
statutorily required to report instances of suspected child
abuse/neglect. If HB 73 isn't altered such that it would no
longer apply to any volunteer athletic coaches, she warned, she
would be voting against passage of the bill.
MS. CARPENETI - mentioning that the language referencing
volunteer athletic coaches was removed from the Senate companion
bill but then reinserted - relayed that the resulting exemption
proposed by the bill's new Section 37 reflects the compromise
reached in the Senate between those who felt as Representative
LeDoux does and those who felt that everyone should have a duty
to report suspected child abuse/neglect.
REPRESENTATIVE GRUENBERG said, "I echo the concerns."
MS. CARPENETI, in response to a question, offered her
understanding that HB 73's proposed definition of the term
"athletic coach" remains unchanged under Version U.
2:37:36 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA) - referring to
Section 39 of HB 73, proposing to directly amend Rule 16(b) of
the Alaska Rules of Criminal Procedure in order to limit the
publication of child pornography required during the discovery
process in a criminal trial - pointed out that under that
provision as currently written, only out-of-state expert
witnesses may have such evidentiary material sent to them,
whereas in-state expert witnesses would instead have to travel
to where that material is being kept. This could result in
increasing the costs associated with retaining an in-state
expert witness and in limiting his/her ability to properly
analyze the material, thereby increasing the likelihood that an
out-of-state expert witness would instead be retained.
Section 39 could be open to constitutional challenge, he
remarked.
MS. CARPENETI pointed out, however, that Section 39's
stipulation that such material may be copied and sent to an out-
of-state expert witness was inserted at the suggestion of the
PDA, even though the goal with this provision of the bill is to
limit how often such material is copied, because each such
instance results in further victimization of the child.
REPRESENTATIVE LEDOUX said Section 39's proposal to allow out-
of-state expert witnesses to have the material sent to them
while requiring in-state expert witnesses to travel to where
that material is being kept doesn't make a lot of sense to her.
MR. STEINER explained that currently, whenever such material
must be transferred to an expert witness - whether in-state or
out-of-state - it's done under what he called, "a stipulation
and court order" that governs how the material is transferred
and how it's returned or destroyed. He indicated a preference
for continuing to use that process. As currently written,
Section 39 could force all such material out of state due to
cost, he predicted.
2:43:43 PM
REPRESENTATIVE LEDOUX turned attention back to [the bill's
proposal to add athletic coaches to the list of people who would
be required to report instances of suspected child
abuse/neglect,] and reiterated that she has concerns with those
provisions as they relate to volunteer athletic coaches -
characterizing the bill's proposal to also add them to that list
as awful.
REPRESENTATIVE GRUENBERG mentioned that he would be looking at
other pending legislation to see if anything else could be added
to HB 73. He then referred to a memorandum dated March 22,
2013, to a research brief dated February 11, 2013 - both from
Legislative Legal and Research Services - and to a proposed
amendment labeled 28-LS8002\A.1, Strasbaugh, 3/22/13, and
indicated that they address statutory changes made back in 1987
in response to a then-ongoing court case; that proposed
amendment read:
Page _____, line _____:
Insert "relating to the rights of certain victims
of sexual assault, sexual abuse of a minor, or incest
to obtain legal and equitable remedies for injuries
arising from the conduct of a perpetrator;"
Page _____, line _____:
Insert a new bill section to read:
"* Sec. A. AS 25.23.180(i) is amended to read:
(i) Proceedings for the termination of parental
rights on the grounds set out in (c)(3) of this
section do not affect the rights of a victim of sexual
assault, sexual abuse of a minor, or incest to obtain
legal and equitable civil remedies for all injuries
and damages arising out of the perpetrator's conduct."
[HB 73, Version U, was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 34 (JUD) Fiscal Note.pdf |
HJUD 3/22/2013 1:00:00 PM |
HB 34 |
| CSHB 73 (JUD) ver. U.pdf |
HJUD 3/22/2013 1:00:00 PM |
HB 73 |
| CSHB 73 (JUD) Highlights.pdf |
HJUD 3/22/2013 1:00:00 PM |
HB 73 |
| CSSB 22 (JUD) Sectional Analysis.pdf |
HJUD 3/22/2013 1:00:00 PM |
SB 22 |