Legislature(1995 - 1996)
02/08/1995 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.