Legislature(2013 - 2014)CAPITOL 120
04/14/2014 01:00 PM House JUDICIARY
Audio | Topic |
---|---|
Start | |
HB370 | |
HB315 | |
SB173 | |
SB128 | |
SB170 | |
HB370 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+= | HB 315 | TELECONFERENCED | |
+ | SB 170 | TELECONFERENCED | |
+ | HB 370 | TELECONFERENCED | |
+= | SB 173 | TELECONFERENCED | |
+ | SB 128 | TELECONFERENCED | |
+ | SCR 2 | TELECONFERENCED | |
+ | HB 254 | TELECONFERENCED | |
+ | TELECONFERENCED |
SB 128-ELECTRONIC BULLYING 3:05:06 PM CHAIR KELLER announced that the next order of business would be CS FOR SENATE BILL NO. 128(JUD), "An Act relating to the crime of harassment." 3:06:04 PM EDRA MORLEDGE, Staff, Senator Kevin Meyer, speaking on behalf of Senator Meyer, prime sponsor of CSSB 128[JUD], informed the committee the bill is aimed at reducing electronic harassment, which is otherwise known as cyberbullying. The proposed legislation would make this offense a class B misdemeanor and inserts a new paragraph into Alaska's existing harassment statute. The current language of the bill (Version G) was drafted by the sponsor, the Department of Law (DOL), Legislative Legal and Research Services, Legislative Affairs Agency, and the Senate Judiciary Standing Committee. The bill protects individuals under the age of 18 years because, although the current statute under education requires school districts to establish policies and procedures for bullying on school grounds, electronic bullying occurs outside of school in social media sites, and through texts and email. 3:07:40 PM CHAIR KELLER directed attention to page 2, line 5, which read: ... manner that causes severe mental or emotional injury or places the person in ... CHAIR KELLER expressed his belief that the aforementioned condition would be hard to define, and he suggested that removing the words "causes severe mental or emotional injury or" would strengthen the bill. MS. MORLEDGE said the sponsor is amenable to the suggested change. REPRESENTATIVE LEDOUX asked why the legislation is limited to protecting persons under 18 years of age. Also, she questioned why something that "would cause a reasonable fear of physical injury" is not assault regardless of a person's age. MS. MORLEDGE explained that the intent of the bill was to protect school-age children because they are more vulnerable to harassment. REPRESENTATIVE LEDOUX restated her point that threatening a person to cause a fear of physical injury is assault under existing statutes. MS. MORLEDGE deferred to the drafter of the bill. 3:10:35 PM KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, responded that existing statute states that a person commits the crime of assault in the fourth degree if by words or other contact, the person recklessly places another person in fear of imminent physical injury. She directed attention to page 1, line 4 of the proposed legislation which read: (a) person commits the crime of harassment in the second degree if, with intent to harass or annoy another person, that person MS. STRASBAUGH pointed out there are two differences between existing statute and the proposed statute: The first difference is the intent to "annoy" rather than the intent to injure, and the second is the threat of "physical injury," not "imminent physical injury." She stated that the second difference relates to the fact that imminent does not apply to electronic bullying because the words or other conduct does not take place in the presence of a person. 3:12:04 PM MS. STRASBAUGH, in response to Chair Keller regarding his suggestion to remove "causes severe mental or emotional injury or" said that is a policy choice. As to whether the change would cause difficulties for the prosecution, she deferred to DOL. 3:12:20 PM REPRESENTATIVE GRUENBERG, after being told by Ms. Strasbaugh that the existing statute covering assault in the fourth degree is AS 11.41.230, noted that assault in the fourth degree is a class A misdemeanor, and second degree harassment is a class B misdemeanor, which is up to 90 days in jail. He directed attention to page 2, lines 3-5 which read: (7) repeatedly sends or publishes an electronic communication that insults, taunts, challenges, or intimidates a person under 18 years of age in a manner that places the person in reasonable fear of physical injury. REPRESENTATIVE GRUENBERG asked whether each communication would be a separate offense or "if you're sending a communication, or publish it, you must do it repeatedly." MS. STRASBAUGH said she was hesitant to make an assertion as to how each case would be handled. 3:14:23 PM REPRESENTATIVE GRUENBERG informed the committee the Rule of Lenity directs that if a statute can be interpreted two ways and in a criminal case the court will interpret the law in the most lenient way from the defendant's point of view. He gave an example in which 50 calls were interpreted as one offense. MS. STRASBAUGH surmised a series of taunts or insults would be taken to authorities when it reached "the pain threshold." She encouraged the committee to ask the prosecuting agency how it would prosecute the posited case. MS. MORLEDGE pointed out on page 1, line 10, the word "repeated" is currently used for telephone calls and thus was the source for the new language, "repeated sending of an electronic message." 3:17:12 PM REPRESENTATIVE LYNN questioned the use of "inconvenient hours" on page 1, line 10. He observed that some of the language in the bill is "very, very, vague." MS. MORLEDGE restated her point that the aforementioned language is from the existing statute and the proposed bill simply inserts electronic communication and using consistent language. REPRESENTATIVE GRUENBERG referred to occupations which require workers to have "thick skin." He asked whether there is a definition in the Alaska Statutes of "severe mental or emotional ...." 3:21:18 PM RICHARD SVOBODNY, Deputy Attorney General, Central Office, Criminal Division, Department of Law, stated it would be difficult to prove the language removed by Chair Keller's proposed amendment [text provided above]. He said if the language stays in, the answer is up to the jury. In criminal law definitions, there is no definition of the terms severe mental or emotional injury to help the jury; in fact, the court will tell the jury "use ... your ordinary understanding of the language." Mr. Svobodny said this would probably cause debate in the jury room. This type of question, along with the meaning of "repeated" would be up to the jury. He gave an example of a previous ruling establishing that three threats of serious physical injury to a person satisfied the term "repeated" - which is used in the crime of assault in the third degree - as a matter of law. In response to Representative Gruenberg, Mr. Svobodny said the offense of terroristic threatening is still a law, but the language has been changed and the repeated threats to cause serious physical injury have been moved to assault in the third degree. REPRESENTATIVE LEDOUX stated one of her concerns about including the language "causes severe mental or emotional injury," is regarding the "eggshell" plaintiff. Some actions that most people would tolerate may cause injury to those who are emotionally or mentally fragile. She said this situation is common in tort cases and courts have ruled that a defendant is liable for an eggshell plaintiff. 3:25:29 PM MR. SVOBODNY said the position of DOL is that if a defendant injures a victim with a disease, their injury could lead to charges of more serious assault; this is a position that is consistent with other provisions of law, that "you take your victim as you find them." REPRESENTATIVE LEDOUX cautioned that the "causes severe mental or emotional injury" section is troublesome because there should not be a prior restraint on the freedom of speech, and she said she supported the removal of this language. 3:27:43 PM REPRESENTATIVE LYNN moved to adopt the proposed House committee substitute (HCS) for CSSB 128(JUD), Version 28-LS1001\H, Strasbaugh, 4/12/14, as the working document. There being no objection, Version H was before the committee. REPRESENTATIVE GRUENBERG stated he was not waiving any rights to offer an amendment. 3:28:30 PM CHAIR KELLER, after ascertaining that no one else wished to testify, closed public testimony. REPRESENTATIVE GRUENBERG commented that many terms in the bill are construed according to "common ordinary usage." He urged for the committee to review related court decisions and warned that more information on definitions is needed. 3:29:43 PM CHAIR KELLER reopened public testimony. REPRESENTATIVE GRUENBERG pointed out the use of "repeatedly" and "repeated" in the new and existing language of the bill, and asked how courts interpret the term. 3:30:58 PM QUINLAN STEINER, Director, Central Office, Public Defender Agency, was unsure of the definitive answer to Representative Gruenberg's question; however, he expressed his belief that repeated is "more than once." REPRESENTATIVE GRUENBERG requested further testimony from agencies on this point. CHAIR KELLER said his hope is that the committee will make a decision on the bill at this hearing. 3:31:51 PM CHAIR KELLER again closed public testimony. 3:32:23 PM REPRESENTATIVE LYNN moved to report the proposed HCS for [CSSB] 128(JUD), Version 28-LS1001\H, Strasbaugh, 4/12/14, out of committee with individual recommendations and the accompanying fiscal notes. 3:32:43 PM REPRESENTATIVE PRUITT objected. Although he said he agreed with the motion, he questioned whether a class B misdemeanor is appropriate in the case of an adult who intimidates a young child. He then removed his objection. REPRESENTATIVE GRUENBERG inquired as to whether the proposed bill is void for vagueness. One prosecutor may decide to divide ten calls into two counts and another may not; the bill is silent on this matter, and he asked Mr. Svobodny if DOL has any charging guidelines related to the bill. MR. SVOBODNY said DOL does not have guidelines on the number of calls that are needed to establish "repeated." This issue arises across all criminal cases and charges are sometimes determined by, for example, the number of pills, or the number of bad checks. REPRESENTATIVE GRUENBERG observed that the existing legislation has not been struck down. REPRESENTATIVE PRUITT further asked whether DOL is confident that the proposed legislation can be enforced. MR. SVOBODNY said he is very comfortable with the bill. REPRESENTATIVE PRUITT restated that he removed his objection. 3:38:46 PM There being no further objection, HCS CSSB 128(JUD) was reported from the House Judiciary Standing Committee.