Legislature(1993 - 1994)
04/20/1994 02:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 252 - THE POSSESSION OF CHILD PORNOGRAPHY SHARON CLARK, Legislative Aid to Senator Mike Miller, described SB 252. She explained AS 11.41.455 and AS 11.61.125 prohibits the production and distribution of child pornography. Current law, however, does not address the issue of possession. SB 252 addresses a compelling need to close the loop by prohibiting the possession of child pornography as well as production and distribution. It is crucial that the state's statutes address this vital issue. For as long as the supply and the demand exist, producers will continue to victimize the children involved. In Osburne vs. Ohio, 495 US 103.109 LED SECOND 98, 110 Circuit Court, 1691, 1990. The court finally upheld the Ohio statute that banned the possession or viewing of child pornography. The court found that such a statute protects the victims of child pornography and encourages the destruction of existing child pornography. The physical and psychological trauma inflicted on victims of this sexual exploitation is so devastating that some children never heal. If we regulate when people are old enough to drink, drive, and vote, in order to protect them, then why would we not also regulate and ban the possession of child pornography to stop the cycle of abuse, in which the child is always the victim? This would be a Class B misdemeanor, and subject to a term of imprisonment of not more than 90 days, and to the fine of not more than $1 thousand. MS. CLARK urged the committee's support of SB 252. She said Senate Judiciary had a committee substitute for SB 252 offered by Commissioner Prewitt of the Department of Corrections, which provides an exemption for those professionals providing sex offender treatment. They may use some pictures or auditory tapes involving children. CHAIRMAN PORTER said he was privileged to welcome the First Lady of the State of Alaska, Mrs. Ermalee Hickel, and asked her to come forward to give her testimony. Number 116 MRS. ERMALEE HICKEL was pleased to lend her support of SB 252, prohibiting the possession of child pornography. She encouraged state senators and representatives to pass this extremely important bill. Pornography should have absolutely no place in our lives, and child pornography is a horrible outrage in our society as you all know. The terrible statistics concerning the abuse of our children and sexual abuse of all types cannot be ignored any longer and these statistics are staggering. As many of you know, Alaska ranks number one in the nation in child sexual abuse. It is so tragic that one in three American girls and one in seven boys will be sexually abused by the age of 18. Over 80 percent of child molesters admit to regular use of pornography, and a serial molester typically has from 360 - 380 victims in his lifetime. Those are staggering statistics. Both adult and child pornography is often used as an aid during these crimes, and often referred to as the instruction manual. Approximately 1.2 million children are exploited every year in the production of child pornography and child prostitution. Our children do not deserve this kind of treatment, and they must be protected in every way that we can find. By enacting legislation that makes possession of child pornography illegal, we can make a positive step forward in protecting our young people, and send the strong message to those who use this terrible material that we are not going to turn our heads away from the abuse of our children any longer. MRS. HICKEL stated she is a member of the national "Enough is Enough" campaign, an organization to which many of the Governors' wives belong. This campaign has done an outstanding job of making folks aware of the devastating problems of illegal pornography and child pornography. Their terrific national advertising, which I have seen in "Time" and "Newsweek" magazines, educating people about hard core pornography's relationship to sexual abuse of children is making a difference in protecting our children's lives. It is having a very positive affect on changing the laws concerning obscenity and child pornography. This fine organization is to be commended for it's outstanding work on behalf of America's children. Mrs. Hickel said she will let the organization know what Alaska is doing in legislation to protect our children in the nation. MRS. HICKEL said the devastation that child pornography causes is truly unforgivable. As Sharon said, it never goes away, and we must do all we can to stamp it out, for the sake of our children and the families. She expressed hope that each one of the committee members would give SB 252 their strongest support. She said from her heart, "Enough is enough." She thanked the committee for considering SB 252. CHAIRMAN PORTER recognized and welcomed Representative Bettye Davis. Number 200 REPRESENTATIVE BETTYE DAVIS testified that she could actually say "ditto" to everything Mrs. Hickel had said, and she does not believe in doing a whole lot of talk if the committee is ready to take action. She did want to say she was pleased to be there to testify on behalf of the bill, which she introduced in the House. She was pleased that it had made it to the Judiciary Committee from the Senate. Everything she had to say on her notes had already been said. She did illustrate that it so important that we consider this bill. We are one of the 23 states who have not taken this particular action. It behooves us to do it. We are number 47 when it comes to the well being of our children. She said she does not care what people say about people having the right to have things in the privacy of their home. We have to look at it from the standpoint, if you have child pornography materials in your home, some child had to be abused for you to have it. Even if they gave consent, it is considered to be abuse. Most of the material you see sometimes would include infants who could not even speak for themselves; and it is so devastating what happens to children when they are sexually molested at an early age. If one sexual abuser can abuse over 380 children within their lifetime; and we have many, many people that are doing this, look what we are doing to the children in this state. She also is a member of the "Enough is Enough" group. It is time for us to do the right thing and pass this bill. If there was anything she could change about it, she would like for the penalty to be even stiffer, but if this will just get our foot in the door, this is good enough. This piece of legislation is long overdue, and you will serve your state very well if you pass it. Number 258 REPRESENTATIVE JAMES commented that she wondered why the penalty was only a Class B misdemeanor. Number 275 BOB HEAD, Chairman, Alaska Human Relations Commission, was next to testify. He summarized a study of a six step life cycle of child pornography. He explained that in step one, the offender displays existing child pornography to a child, ostensibly as educational material. Step two is an attempt to convince the child that explicit sex is acceptable, even desirable, using photographs and movies, or whatever they have. In step three, the child porn is then used to convince the young victim that children are already involved and it is A-okay. If it is there in the movies, it cannot all be bad. At step four, the child pornography desensitizes the child, lowering his/her inhibitions. At step five, some of these sessions progress to sexual activity, providing the child molester can get away with it. In step six, using photographs from this new activity, the cycle begins again, using those photographs and videos to entice another child into the same activity. Pain suffered by children used in pornography is often devastating and always significant. Short term effects of such involvement include depression, suicidal thoughts, feeling ashamed, guilt, alienation from family and peers, and a massive acute anxiety. Victims in the long term may successfully integrate the event, particularly with psychiatric help, but many will likely suffer a repetition of this abuse cycle. This is key, because next time around they are the abuser. At this time, they are suffering a chronic low self esteem, depression, anxiety regarding their sexuality, role confusion, a fragmented sense of self, and a very strongly enhanced probability of entry into prostitution themselves. All, of course will suffer the agony, and Mrs. Hickel eluded to this, of knowing that their sexual activity, on film, is now in circulation. The effects on their future lives is unknowable and beyond their control, and may well be the most unhealable wound. This same commission, which was concluded in '86, notes that several states have made kiddie porn illegal, and consider this action an extremely effective weapon against child molestation. If we can make a stronger law to make it uncomfortable for child molesters to live in our state, then it behooves us all to do anything we can to reach that plateau. Several states currently have statutes which classify sexual exploitation of children as a felony, including possession of child porn. Some of these states also mandate registration of sex crime felons. Mr. HEAD said that considering the life shattering effect on our youth, he asked, on behalf of the Human Relations Commission, that the committee enact this legislation prohibiting the possession of child porn in the State of Alaska. We would further ask that some real teeth be put in it. Let us make the Alaska statute among the strongest, not the weakest. Have the first conviction, for instance require registration on a law enforcement network; and link that registration to the requirement for lifetime probation, as recommended in the attorney general's summary. MR. HEAD noted there is a spectrum of our society that feeds continually on this kind of thing. They are out there, and they are involved in these things. They have journals within their spectrum. Those journals tell them periodically where the easiest places are to get away with this activity, and where the most hazardous places are. Whatever we do, let us make the State of Alaska the most hazardous place in this nation for pedaphiles. Number 360 REPRESENTATIVE PHILLIPS asked Mr. HEAD which states have enacted the offense as a felony offense. MR. HEAD said he thought Idaho and Iowa did. Number 378 REPRESENTATIVE PHILLIPS asked Diane Schenker of the Department of Corrections about Section B of the bill starting on line nine. She noticed that amendment was put in by Corrections. She explained that there was an incident last year on the Kenai Peninsula, where a group of upset parents got together and formed an organization against this kind of treatment in the Corrections system. She did not know if it was being used on youthful offenders, or if it was being used on adults. DIANE SCHENKER, Special Assistant to the Commissioner, Department of Corrections, said she did not remember that particular group, but from time to time we have different interested citizens question us about the use of this kind of treatment. Usually when the department had given them the information and the reason behind it, the group has appeared to be satisfied with the explanation. REPRESENTATIVE PHILLIPS asked Ms. Schenker if they would use that kind of treatment on youthful offenders. MS. SCHENKER stated the only people in our institutions are adults, or a very small percentage of waived juveniles, so I am not aware what Health and Social Services does in their juvenile facilities. Number 400 REPRESENTATIVE GREEN asked what a plethysmograph was. Number 420 MS. SCHENKER said it is similar to a lie detector, but measures the physiological arousal of the offender to various pictures or tapes, in order for treatment staff to review. CHAIRMAN PORTER said that was an excellent definition. Number 425 REPRESENTATIVE GREEN said he thinks he has gotten his children through without having had to be part of this whole problem. He has a slew of grandchildren, and it is disturbing that they are going to have to face this kind of garbage. He asked if this could be strengthened without running amuck of a crazy judge in a court saying that is overreacting. If so he strongly recommended toughening it up. CHAIRMAN PORTER asked Jerry Luckhaupt, the bill drafter to describe the level of offense that this is, in relation to other similarly placed offenses. JERRY LUCKHAUPT, Legislative Council, Division of Legal Services, Legislative Affairs Agency, stated this is a Class B misdemeanor. The unlawful exploitation of a minor, which is something that, if you take pictures of that, it would be child pornography, basically, is the way we would find this. The unlawful exploitation of a minor is a Class B felony in this state. We currently have a statute on the distribution of child pornography. If you distribute child pornography, that is a Class C felony. There has been some stair- stepping by the Legislature at the time. If you follow that stair-stepping to a logical conclusion, you would think the mere possession, since the legislature usually defines distribution as being worse than mere possession, like with drugs, it would be logical for this to be a Class A misdemeanor. MR. LUCKHAUPT referred to testimony in given to the Senate Judiciary Committee, and said there was some material provided to them, listing the numbers of states that have laws on this subject, and it was fairly equally divided as to whether or not they classify as a felony or a misdemeanor, the mere possession. The material indicated are almost 40 states listed, of which 22 of them made mere possession of child pornography a misdemeanor. The other 18 states made it a felony. He did not feel that there is any privacy right to possess child pornography. He analogized child pornography to the possession of cocaine, which the Alaska Supreme Court has not found to be protected under the right to privacy provisions of our constitution. Whereas the possession of marijuana by adults for their own personal use in their own homes is protected under our privacy provision, or our constitution. He analogized that to the mere possession of regular obscenity. Regular obscene material was ruled to be protected under the U.S. Constitution, by the U.S. Supreme Court in 1969. The mere possession of regular old obscene material in your own home for personal purposes is protected, and our Alaska Constitutional Privacy Provision would protect that same material. Child pornography has a greater danger, and there is some proven danger like with cocaine, as opposed to the debate that goes on about the dangerousness of marijuana, which could be analogized to the dangerousness of regular pornography. Child pornography does have some proven danger out there, so a court would not find the possession of child pornography to be protected. Increasing the penalty to Class A would not affect that rationale. Even if you were going to classify it as a Class C felony, that probably would not actually have an effect. The Department of Public Safety has stated in fiscal notes that they do not anticipate going out and actively conducting sting operations to prosecute people under this law. It would be something that they would encounter in executing a search warrant, or something like that, in cases where sexual abuse has been discovered, or is being investigated. Sexual abuse of minors would then find an executing of a search warrant of the suspects home, they might find this material, and then they would start prosecution as part of the other charges. So it is within your power to increase the penalty. CHAIRMAN PORTER asked Mr. Luckhaupt if he had attended hearings where the decision to select Class B Misdemeanor was discussed, and if he knew what the rationale was. Number 535 MR. LUCKHAUPT said they started out, basically reintroducing a version from Representative Bettye Davis. Her version was a reintroduction of a bill from the 17th Legislature, and that was reintroduction from the 16th Legislature. The Class B Misdemeanor was just picked out of thin air, and everybody kept going on. There was never any real rationale. Senate Judiciary did discuss this matter a little, and then just passed the bill out without reaching a conclusion as to whether or not they wanted to increase the penalty. They amended the bill to include the penile plethysmograph treatment, and went ahead and passed out the bill without actually addressing the discussion that went on about increasing the penalty. REPRESENTATIVE JAMES indicated she did not think a Class B Misdemeanor was tough enough. Number 548 CHAIRMAN PORTER agreed that it did not seem to be sending the correct message. He asked Sharon Clark if she believed Senator Miller would oppose amending the bill. SHARON CLARK did not think so and offered to check with him. REPRESENTATIVE GREEN said he would like to go all the way up to a felony. He thought felony would send a message that is a lot stronger than any numbers behind a misdemeanor. CHAIRMAN PORTER asked Margot Knuth to come and answer some questions. Number 560 MARGOT O. KNUTH, Assistant Attorney General, Criminal Division, Department of Law, said she thought a Class A Misdemeanor makes the most amount of sense from our existing scheme because we have a Class C felony offense already related to child pornography, which is distribution. If we have distribution being the Class C felony, and we have possession being a Class C felony, they are going to point fingers at each other and say, "Wait a minute! Problem, problem!" She was not sure which one would be thrown out more readily, but there needs to be a stacking, and if you want it, and if you thought you had enough time this session to work it all out, you could move everything up so that you would be making quite a change. But if you wanted possession to be a "C", you should make distribution a "B", and creation or production an "A". But it is important that there be the stacking because the conduct does become more culpable, and equal protection requires that there be a relationship between the culpability and the level of the offense. Number 575 REPRESENTATIVE NORDLUND questioned about how this would be enforced, or what would be the practical situations in which it this would be enforced. Possibly these materials would be found in the investigation of another crime. Perhaps, the activity was actually taking place in the house and you are going in to investigate that. He said his point is that this would probably rarely be enforced in it's own right, and it would be a crime added to a number of other crimes in which the perpetrator would get hit with a pretty stiff penalty anyway. CHAIRMAN PORTER said it could be a crime in which the original arrest that was made had no relationship to it. It could be a DWI arrest, and at the jail when they go through the possessions, they find child pornography. It could be arrest for shoplifting or whatever. If it were an offense related to the pornography, more than likely, we would be into a felony situation in the first place, with transporting this material, or child sexual abuse. REPRESENTATIVE GREEN expressed concern about if a person were picked up for shoplifting, and in his possession was child pornography, would the offense be bigger or greater? Number 601 CHAIRMAN PORTER said no. He said that the possession would not necessarily be discovered as a result of the investigation of a child sexual assault type of case, or a child pornography type of case. Number 611 REPRESENTATIVE GREEN said he did not know whether it would be more likely, or less likely, but the mere fact, as it was brought out in some of the testimony, that this person happens to have this stuff in his possession, tells us somebody had to produce it and sell it. If we can start anywhere, and cut that chain, I think we should, and jack up the penalty as high as we possibly think the courts would allow. CHAIRMAN PORTER said that is exactly what we are discussing and we are wondering if we would have a problem making this a Class C felony. Number 615 MARGOT KNUTH said if it is a crime at all, and a Class A Misdemeanor is fairly significant, that is up to a year in jail, and you are usually talking about up to a year in jail, and you are usually talking about fines of hundreds of dollars, that is going to be new and different. The message we are trying to send out is, "Don't buy, don't be a consumer, don't be in possession." You can do that even with just the Class A misdemeanor. Right now, everybody says, "I am not a distributer. I am just a possessor." There are no consequences for it. Where I expect we are going to pick this up the most often, is actually when we are doing searches of houses for drugs and things like that, and that is going to be a big time offense already so this gets added to the stack. There probably will not be a situation where they would apply for a search warrant just because we have reason to think there is possession of child pornography in the house. It is much more likely they would be there for another reason. But making it a crime at all, the Class B Misdemeanor is pretty innocuous. Class A Misdemeanor is pretty significant. Right now it is the maximum offense for a DWI, and that is the most serious crime we have in this state. CHAIRMAN PORTER added that there would be challenges from those charged with this offense in relation to transporting, if it were a felony. He suggested that if someone wants to entertain moving this out, that we would not go past Class A Misdemeanor, and if it is, it should be revisited this in terms of looking at the entire structure, that it be done that at another time. We do not want to hold this bill up, or jeopardize it. Number 649 REPRESENTATIVE JAMES asked if she could make an amendment on page 1, line 12, delete "B" and insert "A." CHAIRMAN PORTER stated there was motion to amend, and asked if there was any discussion. REPRESENTATIVE PHILLIPS asked for Representative Davis' opinion on this. REPRESENTATIVE DAVIS said she would love to see the tougher Class A penalty, but said she had concerns about getting the bill back over to the Senate for them to concur this late in the game. If it would not cause a problem, Ms. Davis said she would prefer to see "A" in there rather than "B". If it is going to cause some problem, she would rather see it moved out. It still has another committee of referral to go to on the House side. She asked if it would go from Judiciary to Finance. There was They were not sure if it would go to Finance or not, since there was no fiscal note. REPRESENTATIVE PHILLIPS stated that there would be time. SHARON CLARK interjected that the main thrust of Senator Miller's bill was to "close the loop", that we already have the other two laws on the books, and now we do not have one for possession, so that was the main part of getting it, was to close the loop. She would also hate to see it jeopardized and not getting it out this session. Number 676 CHAIRMAN PORTER asked if there was an objection to the amendment. Hearing none, the amendment was adopted. REPRESENTATIVE GREEN moved to pass HCSCSSB 252 (JUD), with a zero fiscal note and individual recommendations. CHAIRMAN PORTER said he would ask the Chairman of Finance to consider waiving the bill if there is a Finance Committee referral.