Legislature(1999 - 2000)

04/08/1999 01:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                
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                                                                    
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                                                                
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                                                                  
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                                                                   
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.                                                                                                             

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