Legislature(1995 - 1996)

02/08/1995 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HJUD - 02/08/95                                                               
 HB 74 - ASSAULT BY ADULTS ON CHILDREN                                       
                                                                               
 Number 048                                                                    
                                                                               
 REPRESENTATIVE CON BUNDE briefly described the reason for the bill.           
 Shaun Jensen, who was present to testify, had been attacked by                
 three adults.  The charge brought against those adults was a                  
 misdemeanor, and there was general concern of the public that this            
 was inappropriate.  They would like to send a much stronger                   
 message, that a felony charge should be brought in this type of a             
 case.  The law did not allow this to occur, and HB 74 fills that              
 gap by allowing prosecutors the discretion to bring a felony charge           
 where there is the age difference.  Current law protects those who            
 are under the age of ten.  There is a gap between 10 and 16, and              
 that is what this law addresses.  In order to avoid unnecessary               
 felony charges, there is the flexibility for the prosecutor, so               
 they can still charge people with a misdemeanor, as they are under            
 the current statutes, if there are no aggravating circumstances.              
 If the defendant reasonably believes that the victim was 16 or                
 older, this provision would protect those from having an                      
 unnecessary felony charge, and certainly would minimize the impact            
 on the state.                                                                 
                                                                               
 Number 115                                                                    
                                                                               
 JULIE JENSEN ZARR, AUNT OF THE VICTIM, asked the committee for                
 support in passing HB 74.  On November 11, 1994, at 5 a.m. while              
 delivering the Anchorage Daily News, her 14 year old nephew was               
 viciously assaulted by three adult men.  They beat him.  He lost              
 two permanent teeth.  He had neck trauma, and was run over by his             
 own snow machine.  The way the law reads now, it was a misdemeanor.           
 She brought pictures to share, before and after the assault.  She             
 also started a crime alert program two days after the incident, and           
 distributed over 900 of them on cars, all over Anchorage, by                  
 herself.  She then contacted Representative Bunde to ask for                  
 support of a change in the law.                                               
                                                                               
 MS. ZARR moved to Anchorage in 1971, and grew up in south                     
 Anchorage.  Back then it was the most wonderful place to grow up.             
 Back then, the law, as it reads now, probably fit.  There were no             
 drive-by shootings, assaults on kids, and other people.  Anchorage            
 did not have these kinds of crimes in the 50s, 60s, 70s, or 80s.              
 As the crimes changed, so must the laws change to fit the crimes of           
 1995 and beyond.  This assault brought to light the need to make a            
 difference and to try to turn a negative into a positive; teaching            
 her two children and nephew empowerment instead of victimization.             
 The change in the law will show through hard work, one person can             
 have a positive impact on society.  The outcry of support from the            
 people of Anchorage has also had a healing effect on her nephew.              
 She brought over 1,000 signatures from the citizens of Anchorage,             
 and a lot more are coming in, in support of HB 74.                            
                                                                               
 SEAN VIRGIL JENSEN, VICTIM OF ASSAULT BY THREE ADULTS, asked for              
 the committee's support on HB 74.  While delivering the Anchorage             
 Daily News, he was repeatedly assaulted by three men.  He was                 
 thrown down, run over by his own snow machine, and this is a                  
 misdemeanor.  Something obviously needs to be changed if three men            
 can beat up a 14 year old kid and get off with a hand slap.  He has           
 serious injuries he has to live with for the rest of his life,                
 because he has two missing permanent teeth that will never grow               
 back, as well as mental injuries.  The men who beat him will                  
 probably not remember this for very long, but he will.  He has been           
 seriously injured, both physically and emotionally.  This cowardly            
 action on the part of three adults needs to be at least a felony on           
 the record.  He realized the passage of this bill will not help his           
 case.  However, he will be satisfied to know that it will help                
 others.                                                                       
                                                                               
 DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,                  
 DEPARTMENT OF LAW, said the Michie Company recently published a               
 book on Alaska Criminal Law.  He stated after many years in the               
 criminal justice system, you would think the laws would cover just            
 about everything, and then you run across a case like this, showing           
 there is a loophole in unusual circumstances.  This bill plugs that           
 loophole, and it is something that is an appropriate change.  He              
 proposed the amendment of adding the word "intentional" before the            
 word "causes" on page 2, line 3.  His reason for this suggestion              
 has to do with the effect of alcohol intoxication and how that                
 relates to the mental states used in Alaska Statutes.  He felt the            
 change would still make the law usable.  All assaults that are                
 going to occur by adults against children are certainly going to be           
 intentional, as most assaults are.  He thought the law continued to           
 give prosecutors discretion to use or not to use this more serious            
 offense in certain cases.  He did not want to suggest charging                
 every high school senior of 18 years old, who gets into a fight               
 with a freshman who is 15 years old, with a felony.  In appropriate           
 cases, it is a tool that prosecutors ought to be able to use.                 
                                                                               
 Number 265                                                                    
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY asked Mr. Guaneli about the alcohol             
 exclusion.  If a perpetrator is smashed out of his mind, that does            
 not excuse the assault, does it?                                              
                                                                               
 Number 280                                                                    
                                                                               
 MR. GUANELI said alcohol intoxication, after reaching a certain               
 level, can allow someone to show that they did not form the intent            
 to do something, so that is an excuse.  What he was referring to              
 is, under current law, if someone is driving intoxicated and gets             
 into an accident, and people in the car are injured as a result of            
 this accident, the driver can be charged with an assault.  If the             
 person is killed, it is manslaughter.  Unless you insert the word,            
 "intentionally", you end up with a situation where someone could              
 get in a car wreck, and if there are children injured, the driver             
 gets charged with a felony; if there are adults injured, the driver           
 gets charged with a misdemeanor.  It creates the situation where              
 two people doing essentially the same thing get charged with widely           
 varying crimes.  That is the reason for this suggestion which                 
 covers all the cases we want to cover, while avoiding some                    
 undesirable results.                                                          
                                                                               
 Number 295                                                                    
                                                                               
 CHAIRMAN PORTER clarified this for the committee.  As a practical             
 matter, it is a fair statement to say that, except in that                    
 situation described, "intentional" is an element of an assault                
 anyway.                                                                       
                                                                               
 Number 300                                                                    
                                                                               
 REPRESENTATIVE JOE GREEN was a little concerned with Mr. Guaneli's            
 answer to Representative Toohey's question.  If a person is at the            
 .2 or .3 level, or wherever it is when you lose your ability to               
 consciously form an intent, but you still perpetrate this act, does           
 that mean this will not apply, as amended?                                    
                                                                               
 Number 314                                                                    
                                                                               
 MR. GUANELI said if you can show that you did not intend to do what           
 you were doing because you were so intoxicated; intoxication is a             
 defense to any specific intent crime.  It is a defense to kinds of            
 crimes that use the word "intent".                                            
                                                                               
 Number 320                                                                    
                                                                               
 REPRESENTATIVE GREEN was upset that if he goes out and punches                
 somebody out, it is a tort of intent; but if he drinks enough                 
 first, he would be excused from that intent portion.                          
                                                                               
 Number 326                                                                    
                                                                               
 MR. GUANELI explained that would be so if the crime was one using             
 the specific element of "intent".  Most of our crimes do not.                 
 There would still be some crimes that you would be guilty of.                 
                                                                               
 Number 332                                                                    
                                                                               
 REPRESENTATIVE GREEN said people will talk about their drinking               
 escapades, and a moody drunk who gets belligerent, wants to go                
 fight.  He was so wasted, he did not know he hit "Johnson" right              
 square in the nose.  Whoa!                                                    
                                                                               
 Number 340                                                                    
                                                                               
 MR. GUANELI replied proving you did not intend to do something like           
 this raises what is called "diminished capacity."  It requires an             
 expert, a psychologist or psychiatrist, saying this person was so             
 drunk he was unable to form the intent to steal the property, to              
 drive the car, or to assault the person.  That level of                       
 intoxication, that level of proof, very rarely occurs; so it should           
 not make any difference in 99 percent of the cases we would                   
 encounter.                                                                    
                                                                               
 Number 350                                                                    
                                                                               
 REPRESENTATIVE GREEN said his point was that had these three adults           
 been to that point, then we would not even be here talking about              
 this because they would have had an excuse anyway.                            
                                                                               
 Number 358                                                                    
                                                                               
 CHAIRMAN PORTER explained the flip side of this is that                       
 "intoxication" is not a defense.  It is only grounds for mitigation           
 of sentence, unless that intoxication is at such a level that they            
 had the inability to form the requisite intent to do that.  The               
 fact situation of the case we are talking about, is prima facie               
 evidence that that would not have been reached, because they could            
 not have done all of those things having been so intoxicated as to            
 reach this level of inability to form an intent.  It is a rare                
 situation, and it sounds like we are creating a big loophole, but             
 this defense has been raised in cases Chairman Porter has handled,            
 and it just does not happen.                                                  
                                                                               
 Number 375                                                                    
                                                                               
 REPRESENTATIVE TOOHEY agreed with Representative Green unless                 
 someone has got you and is pouring drinks down you, it is your                
 intent to drink, and your intent to get sloshed.  She asked if this           
 would be effective without the word "intentional".                            
                                                                               
 Number 383                                                                    
                                                                               
 MR. GUANELI answered without the word "intentional" it would still            
 be effective, there may be rare cases that lead to divergent                  
 results that might be unfair.  Without the word "intentional" in              
 there, it is still going to be an effective piece of legislation.             
                                                                               
 CHAIRMAN PORTER acknowledged Representative Irene Nicholia's                  
 presence in the meeting, and welcomed her.  He then asked the wish            
 of the committee as regards the word "intentional".                           
                                                                               
 REPRESENTATIVE TOOHEY opposed it.                                             
                                                                               
 REPRESENTATIVE BETTYE DAVIS asked what type of unfairness could               
 result from adding "intentional".  She wanted to weigh that before            
 voting.                                                                       
                                                                               
 Number 404                                                                    
                                                                               
 MR. GUANELI felt the unfairness that could occur would be a rare              
 occurrence.  That is where someone is driving drunk, they hit a               
 car, injure a child, and under the standard current version, that             
 would be a felony.  If they drove drunk, struck a car, injuring an            
 adult, that would be a misdemeanor.  So you would have two people             
 essentially doing the same conduct, which is driving a car and                
 striking something else; and one person is charged with a felony,             
 and the other person is charged with a misdemeanor.  That situation           
 is corrected by inserting the word "intentional".  What we are                
 talking about is a rare occurrence where, in this particular case,            
 the facts fit into a small loophole.  We are talking about things             
 that rarely happen.                                                           
                                                                               
 Number 427                                                                    
                                                                               
 CHAIRMAN PORTER asked if the prosecutor would have the ability to             
 charge consistently in that rare occurrence.                                  
                                                                               
 Number 430                                                                    
                                                                               
 MR. GUANELI said probably so.                                                 
                                                                               
 REPRESENTATIVE GREEN, being a novice in law, asked if there would             
 be any way this could be done, leaving intentionally in there, and            
 at the end, say that alcohol consumption is not a mitigating                  
 circumstance, or something to that effect.  People have driven                
 across Los Angeles Basin, and they cannot even remember it.  So               
 they were capable of negotiating for a long time.                             
                                                                               
 MR. GUANELI was not certain the courts would accept that.  When you           
 have to prove intent, there are a lot of things that can show you             
 did not intend to do something, and the courts have held                      
 intoxication as one of them.  We may end up reversing a long line             
 of court opinions.  Frankly, this is such a rare occurrence, that             
 if you have it in there, or not, it is not a major problem.                   
                                                                               
 Number 450                                                                    
                                                                               
 CHAIRMAN PORTER asked if anyone would like to offer that as an                
 amendment.                                                                    
                                                                               
 Number 455                                                                    
                                                                               
 REPRESENTATIVE AL VEZEY made a motion to move the amendment, adding           
 the word "intentionally" on line 3, page 2, between "older" and               
 "causes".  It would then read, "...older, intentionally causes...".           
 There was objection to adopting the amendment.                                
                                                                               
 CHAIRMAN PORTER asked for a roll call vote.  Representatives                  
 Finkelstein and Vezey voted yes.  Representatives Toohey, Davis,              
 Bunde, Green, and Porter voted no.  The amendment failed with a               
 five to two vote.                                                             
                                                                               
 Number 470                                                                    
                                                                               
 REPRESENTATIVE GREEN made a motion to move HB 74 with individual              
 recommendations and attached fiscal notes.                                    
                                                                               
 There was objection so a roll call vote was taken.                            
                                                                               
 Representatives Toohey, Bunde, Davis, Finkelstein, Green and Porter           
 voted yes.  Representative Vezey voted no.  The bill moved out of             
 committee on a 6 - 1 vote.                                                    

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