Legislature(1999 - 2000)
04/07/1999 01:27 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 34 - REPORTING CRIMES AGAINST CHILDREN CHAIRMAN KOTT announced the first order of business is HB 34, "An Act relating to the crime of misprision of a crime against a child." CHAIRMAN KOTT called on Representative Fred Dyson, sponsor of the bill. Number 0100 REPRESENTATIVE FRED DYSON, Alaska State Legislature, referred to a newspaper article regarding a crime in Las Vegas, Nevada whereby other people knew about a child being assaulted and ultimately murdered, but didn't do anything about it. In looking at that situation, HB 34 was drafted. It sends a very clear message that there is a requirement to go to the aid or report a felonious assault on a child that's in progress. The companion bill in the Senate, SB 5, is broader in that it includes adults as well. If the two bills get through the houses there might have to be some compromise on that. He noted that he has three small amendments: one takes it from a felony to a misdemeanor, one adds a positive defense for not reporting in fear of one's own safety, and one adds a small change. Most people assume in this culture that most people will aid a child that is being hurt, but there is no requirement to do so. As a professional mariner, he is required by law to aid another vessel. He believes that aviators have similar responsibilities as well. He reiterated the bill adds a provision for citizens to go to the aid of a child who is being assaulted. Number 0399 AMOS KISSEL testified in Juneau. He commented that he is for the bill, but the wording needs to be changed. It is unconstitutional in two ways. Firstly, it forces people to speak thereby violating their First Amendment right. Secondly, he wondered whether the "commiter" of a crime would also be a witness; and, if so, it would put that person in double jeopardy prohibited in the Fifth Amendment. He suggested the following language: Any person other than the 'commiter' of the crime that saw and then fails to report the sexual abuse, murder, kidnapping, or felony assault of a minor commits a class C crime. MR. KISSEL noted that the suggested language might still be in violation of the First Amendment, however. Number 0486 REPRESENTATIVE GREEN expressed how proud he was of Mr. Kissel for testifying today. Number 0502 REPRESENTATIVE ROKEBERG asked Mr. Kissel whether amending the bill to allow an excuse for the failure to report a crime would help the constitutionality issue. Therefore, if a witness felt that his well-being was in jeopardy, he would not commit a crime if he failed to report a crime. MR. KISSEL replied yes. Number 0552 REPRESENTATIVE CROFT asked Mr. Kissel whether he sees any way to fix the First Amendment problem. The government sometimes forces the people to speak. For example, a person has to file a tax return which tells the government how much money he has made. MR. KISSEL replied most people are scared that their life would be in danger. If there was protection for speaking out that would probably make people more willing to call in a crime. Number 0667 COREY DAYTON testified in Juneau. He commented that he personally likes the bill. He thinks it is good that somebody should report a crime against a child, but he finds it unconstitutional because of the First Amendment. House Bill 34 is a violation of any United States citizen. Alaska is part of the United States and passing the bill is a violation of a person's freedom of speech. He thinks that if somebody sees a crime against a child, he should report it, but if he doesn't the state shouldn't make him. Number 0753 REPRESENTATIVE CROFT said the police say on television, "You have the right to remain silent", but under this bill a person wouldn't have that right. MR. DAYTON said when the police don't read a person his rights...(indisc.--coughing). Number 0797 REPRESENTATIVE GREEN asked Mr. Dayton how he would react after witnessing his buddy get "whopped up on." MR. DAYTON replied he would report it. REPRESENTATIVE GREEN asked Mr. Dayton whether he would still report it if the person who did the whopping saw him. MR. DAYTON replied yes. Number 0836 REPRESENTATIVE ROKEBERG asked Mr. Dayton if he saw a fight before school started would he have committed a crime under this bill if he didn't report it to a police officer or the principal. MR. DAYTON replied he was told that his student rights are different at school. In other words, a fight like that has to be reported. The constitution also says that student rights are different than public rights when a student is away from school. Therefore, it would be a crime if he saw a fight during school hours and he didn't report it. But, if school hadn't started yet it probably wouldn't be a crime. Number 0922 CHAIRMAN KOTT noted that kids at school don't have any rights. Number 0992 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, noted that the department supports, for the most serious crimes, a bill like HB 34. The department would suggest clarifying the bill to make it clear that a victim is not required to report an offense if that victim chooses not to. In comparison to SB 5, the department supports the provision of reporting a crime against a child because it further limits the bill. The department would suggest trying only murder in the first and second degrees and kidnapping. She understands the concern of requiring parents who know that their children are being sexually abused to report it to the police. However, last year the legislature adopted a law that addresses endangering the welfare of a child in the first degree, which makes it a class C felony for a parent to leave a child with any person, including another parent, knowing that that person has hurt a child either sexually or physically and the child suffers an injury. As long as a parent is protecting a child, it is best to leave reporting an incident to the discretion of a parent. There are other things that can be done to remove a child from danger, such as counseling, that may be in the best interest of that particular child. The department would suggest removing sexual abuse of a minor and sexual assault thereby leaving it up to the parent or individual involved. The department would also support the amendment reducing it to a misdemeanor. Hindering prosecution in the first degree makes it a class C felony to witness or know about a crime, or to aid a person who has committed a crime, or in some way benefit from the commission of a crime. Number 1227 MS. CARPENETI further said the First Amendment argument expressed by the earlier testifiers is a wonderful argument. There are some justices on the Alaska Supreme Court that say Congress may adopt no law hindering the freedom of speech. But, laws have been held up in the past that require teachers and physicians to report child abuse, and to her knowledge, those laws have not been overturned using a First Amendment argument. She thinks a court would hold that the interest of the freedom of speech would be overridden in the interest of child protection. Number 1270 REPRESENTATIVE CROFT noted that Mr. Kissel also brought up double jeopardy and the Fifth Amendment. MS. CARPENETI said that is an interesting argument. She thinks that probably wouldn't be applied to a person who has committed a crime, and it probably wouldn't be upheld in court. She doesn't think that it would be a problem in practicality. Number 1311 REPRESENTATIVE DYSON said he thought double jeopardy was being tried twice for the same crime, not concurrent charges of the same crime. REPRESENTATIVE CROFT noted that Representative Dyson is right, but there is a possible Fifth Amendment violation by adding another crime of misprision. The right to remain silent is the right to shut up. Number 1353 REPRESENTATIVE DYSON said the bill doesn't require a defendant or perpetrator to speak up. REPRESENTATIVE CROFT commented that Representative Dyson is correct because of the term "another" [page 1, line 9]. Number 1373 REPRESENTATIVE GREEN wondered whether most people understand what "assault punishable as a felony" is, where to go to immediately report a crime, and can determine if a person is under the age of 18. It would be tough to distinguish between a 17 year old and a 19 year old, for example. Number 1450 REPRESENTATIVE DYSON said a person would only be charged if it was determined that a person was under the age of 18. He suspects that a person could use, as a positive defense in court, ignorance and misperception of the reality of a person's age. Most folks know that a felony assault is pretty serious, however. It's not a playground scuffle. He is sure that a court would only require a reasonable effort to help a victim. Number 1550 CHAIRMAN KOTT asked Ms. Carpeneti to discuss the concern of immediately reporting a crime. He can think of instances in rural Alaska where a person might not be able to report a crime until the next day or for several hours, for example. MS. CARPENETI replied the Senate included unclassified person felonies as the type of offenses that have to be reported: murder in the first degree, murder in the second degree, kidnapping, and arson. The Senate considered the problem of immediately reporting [a crime] because in some circumstances there would be a need to get the child to a safe place before calling the police or law enforcement agency. The Senate did not limit it to a person under the age of 18 because it is sometimes hard to tell the age of a child, and because unclassified person felonies are a small group of crimes that are easy to...There is no assault crime that is an unclassified felony. Number 1633 REPRESENTATIVE GREEN said that issue has been brought up with other types of reporting for the bush communities. He asked Ms. Carpeneti whether that would apply for several days, until the Village Public Safety Officer returns, for example. MS. CARPENETI replied yes there would definitely be a defense of impossibility to fulfill a responsibility in that case. REPRESENTATIVE GREEN asked Ms. Carpeneti whether there would be concern because a person could have used a phone and called Anchorage, for example, if that person lived 300 miles away. MS. CARPENETI replied that is a question of fact that a jury would have to decide. It doesn't seem unreasonable to pick up a phone and report the death or murder of a child. She hopes that the courts would charge for using common sense under the circumstances. She sees the bill as addressing cases like the one in Nevada, but the law should be written clearly so that everybody knows its intent. Number 1695 REPRESENTATIVE GREEN said he is in favor of the concept. He just doesn't want somebody to get trapped in a class C felony when he was trying to do what he could for fear of his own safety or further retribution to the child. Number 1716 REPRESENTATIVE ROKEBERG said the bill does not distinguish between juveniles. He asked Ms. Carpeneti whether a juvenile who reports a crime to a person in authority would fit into the fact-pattern of the bill. The bill says "assault." MS. CARPENETI replied she would limit the bill to unclassified felonies. It is possible for a child, who doesn't report a schoolyard fight to a teacher or principal, to be reported to DFYS (Division of Family and Youth Services). It is unlikely, however. Number 1776 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether misprision is a felony of common law. MS. CARPENETI replied misprision is an old crime in common law, but there are no common law crimes in Alaska. Number 1798 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether it would be possible to give rights to a cause of action in tort for monetary damages if the alleged victim was over 18 years of age and consented to some type of sexual abuse. In that case no crime was committed. MS. CARPENETI replied people can sue for just about anything. She doesn't feels she is the best person to answer that question. It is a civil law question. Number 1837 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether there is accessories to crimes in Alaska. MS. CARPENETI replied yes. There is accomplice liability. She explained when the bill was first introduced she asked the district attorneys whether these types of situations even arise in Alaska. The Fairbanks district attorney responded that there had been a few cases in which people were present at the scene of a bad crime, but hadn't done anything enough to be liable according to any accomplice or hindering prosecution theories. Number 1878 CHAIRMAN KOTT asked Representative Rokeberg whether he is concerned that if a victim consented and someone reported it as a crime that person's name could be defamed. REPRESENTATIVE ROKEBERG replied exactly. The bill creates a new classification of crime. It is the job of the House Judiciary Standing Committee to look at the most bizarre fact-patterns to ensure that the bill fits them. Number 1915 REPRESENTATIVE CROFT said he is concerned because he sees felonious assault as encompassing a vehement schoolyard brawl. The people surrounding that brawl would then be either liable for a class C felony or class A misdemeanor. It's important to determine whether or not a child who is a perpetrator or a witness has to report it. It creates a different tilt on reporting. The bill doesn't say that a person can either "help" or "report". In other words, if a person jumps in and beats a perpetrator off and walks away, that person might be liable for a class C felony. Number 2017 REPRESENTATIVE DYSON said he doesn't believe that he would have a problem with putting an age limit on the person guilty of committing the crime of misprision. There should be discussion on what age it should be - 18, 21, 16, 14, etc. Obviously, there is a lower limit where a kid would not be charged because he doesn't understand this type of responsibility. In addition, he believes that someone should be there to intervene. Just because the perpetrator is a child it doesn't mean that there isn't a responsibility to do the best thing. He doesn't want to exclude perpetrators on an age-basis. He wants to send a clear signal to citizens that they have a good Samaritan kind of responsibility to help out. If a person intervened and stopped a crime in process, that would accomplish his goal of rescuing the victim. But, if a crime was precipitated in a person's presence, it rises to the seriousness of kidnapping, rape and murder, and that person has the responsibility to report the crime. He suspects that this would very seldomly be enforced. He suspects it would be enforced for the very flagrant cases like in Nevada or New York. There may be people out there who have observed a crime and didn't report it, and society has a right to know. The bill puts in code a societal responsibility to be a good citizen, and tries to stop evil from happening. He also hopes that reporting a crime would cut down on the recidivism rate, particularly for crimes against children because folks who get into that tend to like it and there is often more than one victim. Number 2179 CHAIRMAN KOTT asked Ms. Carpeneti whether a mother would have to report a crime of sexual assault by her husband that her daughter confessed to her. MS. CARPENETI replied the term "witnesses" signifies being in the presence of the offense or close enough to hear it. The Senate bill says "witnesses or has actual knowledge of the crime." The term "witnesses" would avoid criminal responsibility of a mother if she learns later from her child of the crime. Under endangering the welfare of a child Act, that the legislature adopted last year, that mother could not leave the child again [with the perpetrator] and escape criminal charges if the child is sexually assaulted or abused again. Number 2247 REPRESENTATIVE DYSON said he wouldn't object to deleting the phrases, "sexual assault of a child" or "sexual abuse of a minor". That was dealt with in HB 375 last year. Number 2262 REPRESENTATIVE JAMES said she is extremely concerned about the broadness of this bill. She understands the concerns, but she also understands that "you cannot make a perfect world." The more the legislature tries to make this a perfect world the more government is built in, which is distressing to her. It is difficult to believe that she wouldn't report a crime, except in the case of two people observing a crime and one of them is the mother of the victim. In that scenario, she believes it's the responsibility of the mother to report the crime, and she hopes that there would be other choices for that mother. She is concerned about exacerbating the complications for the mother and the child if the second person who witnessed the crime reported it and the mother didn't in that same scenario. In addition, if a perpetrator is a "big, bad hombre" a person might take caution and notice of that person's protection before reporting a crime. She wants to see a new drafting of the bill encompassing some of the concerns discussed today. She's not pleased with how it is written now. Number 2364 REPRESENTATIVE MURKOWSKI referred to the language, "assault punishable as a felony", and cited a scenario whereby a witness saw a fight outside a hub bar but didn't report it, and one of the persons involved ended up dead. It is an issue of timing. At what point does a person intervene? she asked. Number 2428 REPRESENTATIVE DYSON noted that a person is only guilty of misprision if that person knows a crime is being committed. A prosecutor would have to prove that a person knew there was a crime being committed. It's just like slander. There has to be malicious intent. Number 2460 CHAIRMAN KOTT said that's not the way he reads the bill. The bill doesn't say, "knowingly witnesses". MS. CARPENETI said, if the statute doesn't give a culpable mental state, the courts must read in "knowingly" under those circumstances. TAPE 99-22, SIDE B Number 0001 MS. CARPENETI continued. It might not be a bad idea to clarify culpable mental state as knowing that the act being witnessed is a crime. Number 0020 REPRESENTATIVE DYSON said the bill sends a message of responsibility in helping a child who is either being raped, killed or kidnaped, if a person witnesses it. The only other choice is the status quo, which is utterly unacceptable. Number 0055 CHAIRMAN KOTT noted that all the committee members agree with Representative Dyson, according to their comments. The committee members are just trying to make the bill clear and concise for a defense. Number 0067 REPRESENTATIVE GREEN cited a scenario whereby a perpetrator threatens both a witness and the victim for reporting an crime, but the victim eventually reports it. He asked whether either or both of them are liable of a class C felony. MS. CARPENETI replied she thinks so. It could probably be argued that this doesn't include a victim's responsibility to report [a crime], but it needs to be made clear. In addition, the felonious assault needs to be considered and possibly... Number 0138 REPRESENTATIVE CROFT interjected and stated, under American theory of liberty, the government only has the right to stop a person from conduct that harms another. "If we're to retain any bit of liberty, I have the ability to walk through without impacting, but without corresponding obligations, that you're making a fundamental change in an American, possibly English, but now largely American idea of liberty that I didn't cause that, I did nothing to aid it, but I'm not gonna do nothing to stop it. And, where do you get off telling me I have to?" Number 0176 REPRESENTATIVE DYSON replied it is the same argument of leaving a burning building without saying anything and everybody burned to death. He reiterated this bill is for a crime against a child. A child is not a fully responsible person, and adults have an extra responsibility to look out for their welfare. Children are on a continuum from complete self-dependence to complete dependance. This bill follows along that tradition. It is also why he chose not to include adults, even though his heart is there as well. Number 0216 REPRESENTATIVE KERTTULA said she is concerned about legislating good and evil. In addition, from all her years of practicing criminal law, she didn't even know the term "misprision." She is also concerned about problems of proof in court coupled with Fifth Amendment issues. If a witness does not come forward and report [a crime] and is charged, there is a circular Fifth Amendment problem. The difference between this type of approach and the approach used last year of not leaving a child with someone who has assaulted a child, is that this approach will wind up in the courts with prosecutions thrown out. That is probably the reason it is not seen in America today. The other approach is much stronger. She commented she looks forward to seeing the bill brought back and noted that taking the victim out is an absolute, otherwise it's re-victimizing the victim. Number 0294 REPRESENTATIVE ROKEBERG asked Representative Dyson the status of H.R.4531. REPRESENTATIVE DYSON replied, he believes, that it has not passed yet. REPRESENTATIVE ROKEBERG explained H.R.4531 mandates a criminal penalty on an individual 18 years of age or older who fails to report to a state or local law enforcement official that the individual has witnessed another individual engaging in sexual abuse of a child. He wondered whether last year's bill satisfies this requirement. MS. CARPENETI said she is not familiar enough with H.R.4531 to answer his question. REPRESENTATIVE ROKEBERG commented that Representative Dyson has indicated he would agree to remove sexual abuse from the bill. REPRESENTATIVE DYSON said his biggest concern is getting the victim out of the situation. Four states now have good Samaritan laws whereby a person who fails to do what that person can to rescue a child can be prosecuted. He will get that information to the committee members at the next meeting. Number 0392 REPRESENTATIVE KERTTULA asked Ms. Carpeneti whether most of those types of situations get prosecuted as accomplice liability. That has been her experience. If there was any furtherance, a person would be an accomplice after the fact. Number 0412 MS. CARPENETI reiterated this is not a common occurrence in Alaska, which is why when she saw the bill she asked the district attorneys whether or not they have seen situations like this. When there is any aid on behalf of a defendant, there is a charge of hindering prosecution or accomplice liability if there is evidence of helping in the commission of a crime. Number 0436 REPRESENTATIVE GREEN noted that during a children's caucus he heard from three victims who noted that this is not an uncommon situation in Alaska, and these were not necessarily Native types. At least one of the victims was Caucasian. MS. CARPENETI replied she was talking about stranger-type offenses. She wasn't talking about parental knowledge of child abuse, for example. She has heard that there are a lot of situations where one parent is aware of something going on with her husband or boyfriend, but those situations are covered under endangering the welfare of a child statute. Number 0506 REPRESENTATIVE GREEN asked Ms. Carpeneti whether there is anything in federal law that deals with misprision or something like it. MS. CARPENETI replied misprision laws were common about a century ago. They have fallen into disuse for the reasons discussed today. It is hard to legislate decent behavior. Number 0533 REPRESENTATIVE GREEN asked Ms. Carpeneti how the four states, that Representative Dyson referred to, are getting around these types of questions. MS. CARPENETI deferred the question to Representative Dyson. REPRESENTATIVE DYSON said he doesn't know. He will find out. Number 0556 CHAIRMAN KOTT opened the meeting up to public testimony. Number 0568 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. In the 1980's, when the legislature adopted the criminal code, it decided to have a very broadly written hindering prosecution law to cover situations like the one in Nevada. He enjoyed hearing the argument of the Fifth Amendment from the students who testified earlier. Even if the law was passed, a person still has the right not to report [a crime] even if that person was involved. The courts have interpreted the Fifth Amendment so that a person does not have an affirmative duty to come forward if there is a reasonable possibility that he might be prosecuted and he has the right to remain silent. "So, you have kind of a strange situation. If you were in cahoots at all with the person who did this, you would be privileged. If you don't have any criminal liability, if you're pure as the driven snow, you do have--you are--you run the risk of being charged with a felony or misdemeanor under the way it's amended in the Senate." In addition, if a person doesn't immediately report [a crime] perhaps that person would have a further Fifth Amendment privilege with this statute. In other words, "Oh my God, I didn't immediately report it. Do I have to report it now? No, that could mean I'd be liable for a charge if I did." He also noted that he believes the federal misprision has not been repealed, but has gone to the hindering prosecution route as a way to deal with these types of situations. Number 0773 CHAIRMAN KOTT declared, based on what he has heard today, there are some problematic issues that need to be addressed. He assigned the bill to a subcommittee consisting of himself, Representative Dyson and Ms. Carpeneti. The subcommittee will try to bring something back to the full committee tomorrow.