Legislature(1999 - 2000)
04/08/1999 01:20 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 that the next order of business is HB 34, "An Act relating to the crime of misprision of a crime against a child." Number 0369 REPRESENTATIVE GREEN moved to adopt the proposed committee substitute for HB 34, Version LS0241\D, Luckhaupt, 4/8/99, as the working document before the committee. There being no objection, it was so ordered. JERRY LUCKHAUPT, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, informed the committee that the proposed committee substitute was developed with Representative Dyson's office as well as the Department of Law. Mr. Luckhaupt explained that the proposed committee substitute changes the name of the offense from misprision of felony to the failure to report the kidnapping or murder of a child. This would apply to murder, attempted murder, kidnapping or attempted kidnapping. If a person witnesses one of those crimes committed against a person under the age of 18, the person must report the crime to the police in a timely manner or the person must come to the aid of the individual. Mr. Luckhaupt noted, "If you cannot timely report or you can't come to the aid immediately of the person, then you have an affirmative defense if you can't do so safely and without jeopardy to yourself." He further noted that the penalty is reduced to a class A misdemeanor. CHAIRMAN KOTT referred to page 2, line 1 which states, "immediately come to the aid of the child." Chairman Kott recalled that in the incident in Nevada, a person peered over the restroom stall and told the perpetrator to stop and then left. Would that be considered immediately coming to the child's aid? MR. LUCKHAUPT stated that question is one that he had not entirely satisfied in his own mind yet. Number 0502 REPRESENTATIVE DYSON, Sponsor of HB 34, Alaska State Legislature, informed the committee that he had discussed this issue with Anne Carpeneti, Assistant Attorney General, Criminal Division, Department of Law. Perhaps, that language should be further defined if it poses a problem. He suggested inserting the language, "rescue" or "attempt to rescue." MR. LUCKHAUPT said that "rescue" would imply that there is an attempt to remove the person from the dangerous situation. Mr. Luckhaupt assumed that coming to the aid of a child meant more than merely telling someone to stop. Since no definition is provided, the definition will be subject to whoever wins the argument of the case. Mr. Luckhaupt pointed out this is referring to the minimal end of satisfying the statutory requirements. CHAIRMAN KOTT inquired as to the net result of deleting the "or" on page 1, line 14, and inserting "and". MR. LUCKHAUPT explained that such a change would impose a duty for people to not only report, but also come to the aid of the child which would be broader. CHAIRMAN KOTT stated, "Without that in there, you could come to the aid, but not necessarily be required to report." REPRESENTATIVE DYSON commented that he liked that solution, but suggested using "and or" language. Number 0697 REPRESENTATIVE CROFT stated that the "or" language is appropriate because it allows an individual to report a crime if the person, perhaps an elderly woman, and be in compliance without having to come to the aid. The "or" language also allows a person to come to the aid of the child and be in compliance without having to report the crime. Representative Croft expressed concern with the "and" language on page 2, line 3, and suggested that "and" be deleted and "or" inserted. REPRESENTATIVE GREEN posed the following situation. If Representative Green came across a situation in which a person is seriously injured, but Representative Green made a mistake; would this language increase Representative Green's liability? REPRESENTATIVE DYSON pointed out that people coming to the aid in such a situation would be covered under the Good Samaritan Act. If one makes a good faith effort to assist someone in danger or injured, that person would be covered. REPRESENTATIVE GREEN said that he understood that in the context of voluntarily taking action, however this language says that the person would be required to take action. Number 0808 MR. LUCKHAUPT clarified that under this legislation a person would be required to notify the police or come to the aid of the person. The Good Samaritan Act discusses the distinction between those persons paid to come to the aid and those who are not paid. If you are a person who is paid to perform a service, then that person would not fall under the Good Samaritan Act. If a person voluntarily comes to someone's aid, that person would be covered by the Good Samaritan Act to the extent of their training. REPRESENTATIVE CROFT clarified that if HB 34 creates a preexisting duty, then would the person not be under the Good Samaritan Act. He indicated that the police officer should still respond responsibly, but the citizen being forced to aid would be given more discretion. MR. LUCKHAUPT informed the committee that the immunity is provided by AS 09.65.090 (a) which refers to, "A person at a hospital or any other location who renders emergency care or emergency counseling to an injured, ill, or emotionally distraught person...." Therefore, coming to someone's aid to stop an assault would not be providing first aid to the person. Mr. Luckhaupt further pointed out that there is a distinction in AS 09.65.090 (b) which states, "A member of an organization that exists for the purpose of providing emergency services...." If such a person is paid for the services, that person would not be covered under the Good Samaritan Act. Mr. Luckhaupt stated that Alaska's statute does not look to whether one has duty to provide care to that person. If one were to provide emergency care to a person in need, the person rendering assistance would be covered. Number 1027 REPRESENTATIVE GREEN commented that the question would be regarding how far one would be compelled or required to go. MR. LUCKHAUPT informed the committee of an early 1960's case in Alaska which discussed police officers having the duty to rescue. A police officer stopped for coffee on the Alaska Highway where he came across a child who had been grabbed by a caged bear. In the process of trying to shoot the bear, the officer shot the child. The supreme court found that the trooper had a duty to do everything possible to rescue the child. The trooper was immune for those actions, as long as the actions were taken reasonably which the court found. If there is a statute that requires one to report a crime or come to the aid of a child in that crime, he did not necessarily see that there is a preexisting legal duty to render legal aid to that person. Mr. Luckhaupt stated that there is a legal duty to report or come to the aid as the person sees fit. This is a discretionary duty, one is not required to come to the aid of the person by statute because there is an option. He did not see a problem with HB 34 in regards to the Good Samaritan Act. Mr. Luckhaupt pointed out that if the committee so desires, immunity for persons coming to the aid could be provided. REPRESENTATIVE DYSON clarified that HB 34 only refers to children who are being kidnaped or murdered. He wondered if the language on page 2, line 1 which reads, "come to the aid of the child" could be changed to "act to stop or prevent the crime in progress." Representative Dyson said that was what he really desired. REPRESENTATIVE GREEN commented that would be a good approach. REPRESENTATIVE MURKOWSKI noted that there is an affirmative defense to this if the person reasonably believes he/she would be placed in substantial risk of physical injury. However, that refers only to the defendant. "What happens if you reasonably believe, that by reporting this, that little girl who has been kidnaped is going to be killed? ... Can that be a reasonable affirmative defense, if you think that there is going to be further harm to the victim, not just as to the defendant?" She indicated this could be a legitimate issue in a kidnapping situation. REPRESENTATIVE DYSON indicated agreement that in a kidnapping situation with ransom, parents are left to wonder if they should involve the police. Representative Dyson said that he would be open to inserting language indicating that it would be a positive defense to be both afraid for your own life as well as possibly increasing the risk of the victim. CHAIRMAN KOTT suggested on page 2, line 5, after "defendant", insert "and or another". REPRESENTATIVE DYSON noted that in Minnesota law the language "without danger or peril to self or others" was added. Number 1444 CHAIRMAN KOTT offered Amendment 1 which reads as follows: Page 2, line 5 after "defendant" Insert "or others" There being no objection, Amendment 1 was conceptually adopted. CHAIRMAN KOTT pointed out that HB 34 originally required reporting, but has been expanded to coming to the aid. He asked if it was the intent of the sponsor for one to come to the aid of someone without requiring the crime be reported. REPRESENTATIVE DYSON specified that it was his intention to encourage people to act to prevent the crime and if that is not an appropriate option for those reasons already discussed, the second option is to report the crime. CHAIRMAN KOTT asked if the desire is to prioritize aid to the child and if not feasible, then report the crime in a reasonable manner. REPRESENTATIVE DYSON said that it was not his intention to prioritize, but to provide an option to the individual. Representative Dyson did not want to place an individual in jeopardy of prosecution for not choosing the priority someone else would have chosen. REPRESENTATIVE ROKEBERG mentioned a New York Case, where if there is a statutory mandate to aid, then the issue of what level of physical force can be utilized is brought into question. Care must be taken with a statutory mandate to aid. Number 1677 REPRESENTATIVE KERTTULA appreciated the intent of the legislation, but subsection (b) on page 2 could create problems as mentioned by Representative Rokeberg. She believed including affirmative defenses would problematic. Representative Kerttula supported cleaning up the failure to report rather than including the aid portion in this legislation. REPRESENTATIVE DYSON inquired as to whether Representative Kerttula would feel more comfortable with the language, "act to stop a crime in progress" versus "aid". REPRESENTATIVE KERTTULA stated that it is problematic all together. She reiterated that limiting the legislation to the failure to report issue could be addressed cleanly. In response to Chairman Kott, Representative Kerttula pointed out that even with the language "to reasonably act to stop or prevent the crime in progress", many questions remain. She said that questions such as what is reasonable, what is the degree of aid, what is immediate, and what is substantial risk remain. Number 1858 BLAIR MCCUNE, Deputy Director, Public Defenders Agency, testified via teleconference from Anchorage. He informed the committee that he did not have the proposed committee substitute before him. Mr. McCune believed this to be a difficult question because it attempts to achieve a level of moral behavior to which people are held accountable. Mr. McCune said, "I frankly, have problems with this entire area. I think the model penial code, when they thought--what they did was, you know, you don't have the duty to report, you don't have the duty to come to the aid, but if you're not--if you're in any way rendering assistance to someone who's committing a crime and had that rendering assistance very broadly defined, you get at 99 percent of these problems." REPRESENTATIVE CROFT inquired as to when an individual would know when a crime is occurring. If someone jumped into a movie set and attempted to prevent a child's murder and someone was seriously harmed, what happens. Representative Croft posed many examples of situations in which it would be difficult to determine whether a crime was occurring or not. Representative Croft stated that the risk must be allocated one way or another. Either the individual must take action and the risk that the individual may be wrong lies with that individual or the individual must take the action and others must bear the risk that the individual acts erroneously. REPRESENTATIVE DYSON stated that this will only be used in flagrant cases. When police arrive at the scene with a dead body, the police are going to look for the perpetrator. If there was someone present who could have presented the crime and did not, would this be used. Representative Dyson feared that all these "what if" scenarios could be problematic. The current situation is intolerable. Representative Dyson reiterated that the individual has the responsibility to "pick up the whistle and blow it." REPRESENTATIVE ROKEBERG indicated that an individual who is an accessory to a crime would have a defense due to this legislation. The accessory could say that he/she did not report the crime because he/she felt it would place him/her in harms way. Would a defense attorney use such? TAPE 99-25, SIDE A Number 0013 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, believed that the legislation is problematic with regards to the word "aid" and the need for a definition of that language. Under this legislation, Ms. Carpeneti believed that in the Nevada situation the individual who told the person committing the crime to stop would have been considered aiding the victim and therefore, excused from reporting the crime. Ms. Carpeneti stated that this legislation does not resolve the problem of discouraging witnesses from reporting in a timely manner from ever reporting. If such a witness were ever found, immunity, although problematic, could be offered. Immunized testimony is not very good testimony and juries are instructed to look at such testimony with caution and distrust. Ms. Carpeneti suggested that if the desire is to make this work for the prosecution, then making the bill only speak to reporting would be appropriate. CHAIRMAN KOTT said that reporting a crime at a time specific is very circular. He believed that some form of prosecutorial discretion would be afforded in cases in which a person reported a crime two weeks later. MS. CARPENETI agreed, but noted that the problem is then that there is a witness that has not been prosecuted, but the witness is subject to cross examination on that issue which lessens the impact. REPRESENTATIVE CROFT said there will be prosecutorial discretion, but legislation should be written to do what is intended and no more. Criminalize what is intended and nothing more. CHAIRMAN KOTT agreed, but was unsure as to how to deal with the dilemma surrounding what circumstances would warrant reporting a particular crime two weeks after the fact. REPRESENTATIVE MURKOWSKI mentioned that the Y2K legislation allowed "wiggle room" and therefore, intent language was included in that legislation. Perhaps, this legislation should be restricted to the failure to reporting the crime with some intent language. Representative Murkowski agreed with Representative Dyson that there should be legislation that promotes people to do the right thing. Number 0448 MR. LUCKHAUPT mentioned that the substantive crime could be the failure to report and the references to coming to the aid of the child could be removed. Furthermore, an affirmative defense could be provided for someone who comes to the aid of the child and stops the commission of the crime. Therefore, no one is required to come to the aid of the child. REPRESENTATIVE CROFT interjected and stated that could be defined very narrowly. REPRESENTATIVE ROKEBERG pointed out that the drafting of the legislation could be such that discretionary language could be utilized. REPRESENTATIVE DYSON understood Representative Rokeberg to mean that the rendering of aid could be an option with permissive language, "may", while the reporting language could be mandatory. MR. LUCKHAUPT stated that such is achieved in criminal statute by utilizing "shall" language, in this case the failure to report would be the crime. Furthermore, the affirmative defense would be provided by using permissive language, "may", regarding the aid issue which would negate criminal liability under the statute itself. Number 0685 REPRESENTATIVE CROFT indicated the need to ensure that the Good Samaritan Act covers when an individual has the option to do that. He believed it comes close, but suggested that there should be a reference to that civil liability. He acknowledged that there is overlap with the rendering aid and preventing a crime, however he indicated it should be clear that the individual would be covered. MR. LUCKHAUPT reiterated the problems with requiring someone to act. He noted that the option for an affirmative defense is available for acting, but people are not compelled to act. REPRESENTATIVE CROFT pointed out that the Good Samaritan Act returns to the question regarding what is one immunized from civil liability from. REPRESENTATIVE DYSON referred to discussions at the previous hearing which recognize in law that our young are fairly helpless and therefore, need more care and stewardship. The distinction between children and adults is important. Representative Dyson said that he would be glad to do more work on HB 34. Representative Dyson informed the committee that he would like to broaden the legislation to include rape and felonious assault. He asked the committee for guidance on that expansion. Representative Dyson specified that the goal is to stop a child from being hurt. CHAIRMAN KOTT requested that Mr. Luckhaupt work with the sponsor on the additional language in order to have the legislation before the committee tomorrow.