Legislature(1999 - 2000)

04/07/1999 01:27 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                                                                                
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.                                                                                            

Document Name Date/Time Subjects