Legislature(1999 - 2000)

04/09/1999 01:05 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 next order of business is HB 34, "An                                                                
Act relating to the crime of misprision of a crime against a                                                                    
child."                                                                                                                         
                                                                                                                                
CHAIRMAN KOTT indicated there is a proposed committee substitute                                                                
and called for a motion to adopt it.                                                                                            
                                                                                                                                
Number 2174                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed                                                                     
committee substitute for HB 34 [1-LS0241\G, Luckhaupt, 4/8/99].                                                                 
There being no objection, it was so moved.                                                                                      
                                                                                                                                
CHAIRMAN KOTT called on Representative Dyson, sponsor of the bill;                                                              
and, Mr. Gerald Luckhaupt, drafter of the bill.                                                                                 
                                                                                                                                
Number 2245                                                                                                                     
                                                                                                                                
REPRESENTATIVE FRED DYSON, Alaska State Legislature, thanked the                                                                
committee members for their diligent efforts.  He took the concerns                                                             
of the committee members and the result is the proposed committee                                                               
substitute.                                                                                                                     
                                                                                                                                
Number 2275                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Luckhaupt whether the phrase,                                                                 
"punishable as a felony", encompasses sexual assault.                                                                           
                                                                                                                                
GERALD LUCKAUPT, Attorney, Legislative Legal and Research Services,                                                             
Legislative Affairs Agency, replied there are only three forms of                                                               
sexual assault and they are all felonies.  Sexual assault is                                                                    
nonconsensual.                                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG noted he is confusing it with sexual abuse                                                              
of a minor.                                                                                                                     
                                                                                                                                
MR. LUCKAUPT said there are five forms of sexual abuse of a minor,                                                              
and it doesn't look at consent.                                                                                                 
                                                                                                                                
Number 2307                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN referred to page 1, line 9, of the bill and                                                                
asked Mr. Luckaupt to explain the phrase, "by another".                                                                         
                                                                                                                                
MR. LUCKAUPT replied it means by a person other than the person who                                                             
committed the crime.  It alleviates the concerns of incriminating                                                               
one's self.                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN noted the phrase, "by another", is legal                                                                   
drafting terminology.                                                                                                           
                                                                                                                                
Number 2355                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI referred to the affirmative defense and                                                                
noted that witnessing a sexual assault is after the fact.  She is                                                               
troubled by the word "and" on page 2, line 5, of the bill.                                                                      
                                                                                                                                
Number 2384                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said according to her logic she would also                                                                 
have a problem with the phrase, "or an attempt to commit one of                                                                 
those crimes", on page 1, starting on line 8, of the bill.  He                                                                  
wants to stop the crime.  He stopped a kidnapping that he thought                                                               
was going to end up in sexual assault.  He got right in the middle,                                                             
which is what he wants folks to do.                                                                                             
                                                                                                                                
Number 2430                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said, according to the committee's discussion                                                                     
yesterday, if a person tried to stop an offense and failed of which                                                             
there was a death, the committee didn't want that person to walk                                                                
away without reporting it.  In addition, if a person attempts to                                                                
stop a sexual assault, there is sexual contact and penetration.  It                                                             
can conceivably be stopped before it is completed.                                                                              
                                                                                                                                
TAPE 99-26, SIDE B                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT continued.  That is why he tied it into a two-step                                                                
process.                                                                                                                        
                                                                                                                                
Number 0023                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked Representative Dyson whether he reported                                                             
the crime that he stopped.                                                                                                      
                                                                                                                                
REPRESENTATIVE DYSON replied the police showed up and put all the                                                               
parties in jail.                                                                                                                
                                                                                                                                
Number 0039                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said, if a person stops a murder, that person                                                              
hasn't stopped an attempted murder.  He asked whether that person                                                               
would be obligated to report it.                                                                                                
                                                                                                                                
REPRESENTATIVE DYSON replied yes.                                                                                               
                                                                                                                                
Number 0062                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said there almost has to have the language                                                              
"stopped" or else a person could be an accessory to a crime.                                                                    
                                                                                                                                
REPRESENTATIVE DYSON said, "That is excellent insight."                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG said it still troubles him, however.                                                                    
                                                                                                                                
MR. LUCKHAUPT said it is more complicated than that.  They are two                                                              
different concepts.                                                                                                             
                                                                                                                                
Number 0137                                                                                                                     
                                                                                                                                
ANNE D. CARPENETI, Assistant Attorney General, Legal Services                                                                   
Section-Juneau, Criminal Division, Department of Law, testified in                                                              
Juneau.  In working with the sponsor, it was the department's                                                                   
intent to keep it as limited as possible because of all the                                                                     
problems that have been discussed in this committee.  She noted,                                                                
yesterday, it was just murder and kidnapping and today it is sexual                                                             
assault and felonious assaults.  The problem is, the victim                                                                     
specifically needs to be excluded from requiring to testify.  This                                                              
bill does not do that.  For example, rape and assault would be                                                                  
required to be reported by the victim at this point when it ought                                                               
to be the choice of a victim, even though the victim is a child.                                                                
She would prefer to leave it at murder and kidnapping so that the                                                               
problems discussed would be limited to those particular offenses.                                                               
The language, "by another", is for the person who commits the                                                                   
crime.  It does not require the defendant to report the crime.                                                                  
This doesn't exclude the victims from having the responsibility to                                                              
report the crime.                                                                                                               
                                                                                                                                
Number 0197                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN said prior testimony indicated that the                                                                    
phrase, "by another", was someone other than the victim.                                                                        
                                                                                                                                
MS. CARPENETI said the person who is the victim is also a witness                                                               
to the crime.  The phrase, "by another", excludes the                                                                           
responsibility of the perpetrator from reporting a crime.                                                                       
                                                                                                                                
Number 0221                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON suggested inserting the phrase, "by another                                                                
not the victim", on page 1, line 9, of the bill.                                                                                
                                                                                                                                
MS. CARPENETI suggested inserting the phrase, "a person other than                                                              
the victim", on page 1, line 6, of the bill.                                                                                    
                                                                                                                                
Number 0241                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said it poses a problem that needs to be                                                                   
fixed.                                                                                                                          
                                                                                                                                
REPRESENTATIVE DYSON said many murder victims would not be charged.                                                             
                                                                                                                                
Number 0264                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said that concern has been with the bill since it was                                                             
introduced in the House.  It was felt by Legislative Legal and                                                                  
Research Services [Legislative Affairs Agency] that there was                                                                   
enough distinction between a person and a child that the victim has                                                             
to be a child.  Senate Bill 5 deals with crimes against anyone, not                                                             
just children.  The language reads in the first line, "A person,                                                                
other than a victim,...".  It wouldn't hurt to put that in here.                                                                
It would make it easier for a prosecutor to charge a 15-year-old                                                                
victim of sexual assault or kidnapping for not reporting an                                                                     
offense.  He doesn't think that would happen, but to ensure that it                                                             
doesn't happen he agreed with inserting the language suggested by                                                               
Ms. Carpeneti on line 6.                                                                                                        
                                                                                                                                
Number 0348                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said it would do no harm.                                                                                  
                                                                                                                                
Number 0361                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN wondered whether anybody would care that the                                                               
phrase, "by another", voids a perpetrator.  In other words, would                                                               
anybody care that a perpetrator would be subject to a class A                                                                   
misdemeanor?                                                                                                                    
                                                                                                                                
Number 0384                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said that is a marvelous point, but there are                                                              
Fifth Amendment implications of self-incrimination.                                                                             
                                                                                                                                
Number 0391                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said he doesn't think the state could compel a                                                                    
perpetrator to come forward as a witness against himself.  The                                                                  
federal misprision statute applied against defenders.  It's easier                                                              
to say that a crime committed by someone else would avoid                                                                       
prosecution.  The statute is clearly constitutional in that it only                                                             
applies to persons other than the person doing the crime.  At                                                                   
least, it's constitutional in the aspect that it's not going to                                                                 
compel someone to be a witness against himself.  There is a need                                                                
for the phrase, "by another"; but, adding the phrase to page 1,                                                                 
line 6, of the bill, "A person, other than the victim", doesn't                                                                 
cause any harm.                                                                                                                 
                                                                                                                                
Number 0493                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to insert the phrase, "other                                                                 
than the victim", on line 6 between "person" and "commits".  There                                                              
being no objection, it was so moved.                                                                                            
                                                                                                                                
Number 0513                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether the phrase, "by another",                                                                 
should remain on line 9.                                                                                                        
                                                                                                                                
CHAIRMAN KOTT indicated yes.                                                                                                    
                                                                                                                                
Number 0530                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said the current draft is excellent and avoids                                                             
a lot of the pitfalls.  He wondered whether "attempt" should be in                                                              
the bill.  If a person only sees the beginning of a crime, should                                                               
that person report it.  In addition, if a person acts to stop a                                                                 
crime, by definition, that person hasn't stopped the attempt, and                                                               
should the affirmative defense apply to reporting it.                                                                           
                                                                                                                                
Number 0600                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON stated, if the committee comes up with a                                                                   
better way to handle that, he noted he would work hard to include                                                               
it.                                                                                                                             
                                                                                                                                
Number 0616                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether a person would be covered with an                                                                   
affirmative defense for witnessing a child being dragged into a car                                                             
which is later determined to be a kidnapping.                                                                                   
                                                                                                                                
Number 0635                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said, if a person sees a 10-year-old child being                                                                  
dragged into a car and it reasonably appears to be a kidnapping,                                                                
that person would have a duty to report it to the police.  That                                                                 
person could also choose to intervene.  It was Representative                                                                   
Dyson's desire to add elements to the offense of reporting or                                                                   
aiding the victim.  At this point, a witness has to call the police                                                             
and if that witness doesn't, he has committed a crime.  There is an                                                             
affirmative defense if that witness wasn't able to call the police                                                              
out of fear for his own safety, of another person, or of the                                                                    
failure to stop the commission of a crime.                                                                                      
                                                                                                                                
Number 0716                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said the language, "knows or reasonably should                                                             
know", is used to determine if the person is a child or not, but it                                                             
is not used to determine if there is a potential murder or                                                                      
kidnapping.  He suggested including that language in the witnessing                                                             
section thereby putting that same level of knowledge there as well.                                                             
It would read, "...if the person witnesses what the person knows or                                                             
reasonably should know is a murder, kidnapping,..."                                                                             
                                                                                                                                
Number 0776                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said he assumed that ignorance would be a                                                                  
positive defense.                                                                                                               
                                                                                                                                
REPRESENTATIVE CROFT said he is not sure ignorance would be a                                                                   
positive defense.                                                                                                               
                                                                                                                                
MR. LUCKHAUPT said he doesn't see why it wouldn't be available.  A                                                              
jury would be instructed to look at whether or not a person would                                                               
know that he was witnessing a crime.                                                                                            
                                                                                                                                
Number 0821                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said from the standpoint of murder, sexual assault or                                                             
assault that is punishable as a felony, a person could determine                                                                
that there is some severe physical abuse that could lead to death.                                                              
He is troubled, however, with kidnapping.  What about a child                                                                   
screaming and yelling all the way to a car because that child's                                                                 
parent just told him that there are no more amusement rides today?                                                              
A child yelling "help me" is pretty clear, but without that                                                                     
verbalization it isn't as clear.                                                                                                
                                                                                                                                
Number 0868                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said Representative Croft's language covers that                                                                  
concern and situations when a person is privy to certain facts.                                                                 
The language would also assist the trier of fact or a prosecutor                                                                
deciding a charge under this offense.                                                                                           
                                                                                                                                
Number 0958                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Representative Dyson whether he would have any                                                              
objection to inserting that language to make it clear.                                                                          
                                                                                                                                
REPRESENTATIVE DYSON replied no.                                                                                                
                                                                                                                                
Number 0972                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT made a motion to insert the language, "what                                                                
the person knows or reasonably should know is", on page 1, line 7                                                               
between "witnesses" and "a".                                                                                                    
                                                                                                                                
Number 1042                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether the language exonerates a person                                                             
who witnesses a fearsome type of scream from a child, not                                                                       
necessarily a verbalization.                                                                                                    
                                                                                                                                
Number 1082                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said, "What it gets us out of, the reasonably                                                              
should know, is the dumb and dumber situation.  I mean, if it's not                                                             
you and me, assuming we're not dumb and dumber, standing there                                                                  
looking at events that a reasonable person would know...You can't                                                               
say I was--I saw these things crying help, abuse, an attempted                                                                  
murder, but I really didn't know what it was.  I mean, you have                                                                 
to--it's not just that you knew, you could say 'I didn't know,' but                                                             
a reasonable person would have known in that situation that this                                                                
would call for some reporting.  I think it's pretty standard."                                                                  
                                                                                                                                
Number 1119                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON commented that he suspects this law would only                                                             
be applied to the flagrant cases.                                                                                               
                                                                                                                                
CHAIRMAN KOTT asked whether there is any objection to the motion.                                                               
There being none, it was so moved.                                                                                              
                                                                                                                                
Number 1158                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked Mr. Luckhaupt how he expects to get                                                               
an affirmative defense with an attempt.  She thinks that is                                                                     
impossible.  It illustrates her overall problem with the bill.                                                                  
It's such a moving target that it's hard to solve all the problems,                                                             
but a person could never act to stop an attempt because it is an                                                                
"attempt."  She declared it should be removed from the bill.  It                                                                
would create too many problems in trying to enforce it.                                                                         
                                                                                                                                
Number 1225                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT replied the availability of an affirmative defense                                                                
for merely attempting to commit a crime - a crime that is not                                                                   
completed - would be difficult.  It could be worded in terms of                                                                 
"attempts a crime and fails to complete it."  That would avail                                                                  
someone with an affirmative defense in a situation of stopping an                                                               
attempt thereby preventing the completion of the attempted crime.                                                               
It's a good question and concern.                                                                                               
                                                                                                                                
Number 1319                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA said she sees what Mr. Luckhaupt is saying,                                                             
but it starts to become circular, and she's not sure how it would                                                               
work.                                                                                                                           
                                                                                                                                
CHAIRMAN KOTT asked Mr. Luckhaupt whether he could work with that                                                               
language and incorporate it into the bill.                                                                                      
                                                                                                                                
Number 1404                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT replied, conceptually, the language could read, "or                                                               
the completion of the crime that was being attempted", after the                                                                
word "crime" on page 2, line 6, of the bill.  That would give a                                                                 
person an affirmative defense when witnessing an attempted crime                                                                
that is stopped before the crime is completed.                                                                                  
                                                                                                                                
CHAIRMAN KOTT asked whether everybody understands the conceptual                                                                
amendment.                                                                                                                      
                                                                                                                                
REPRESENTATIVE KERTTULA said she appreciates the work on it, but                                                                
she would feel better if attempt was removed from the bill.                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether there is any objection to the                                                                       
conceptual amendment.  There being none, it was so adopted.                                                                     
                                                                                                                                
Number 1597                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move the proposed                                                                      
committee substitute for HB 34 [1-LS024\G, Luckhaupt, 4/8/99], as                                                               
amended, from the committee with individual recommendations and the                                                             
attached fiscal note(s).                                                                                                        
                                                                                                                                
REPRESENTATIVE KERTTULA objected.  She appreciates the intent and                                                               
effort and believes that people need to step in and do the right                                                                
thing, but there is a reason for not having laws like these, that                                                               
being confusion.  Legally, she feels she has to object to the                                                                   
motion.                                                                                                                         
                                                                                                                                
CHAIRMAN KOTT called for a roll call vote.  Representatives                                                                     
Rokeberg, Murkowski, Croft and Kott voted in favor of the motion.                                                               
Representative Kerttula voted against the motion.  The motion                                                                   
passed by a vote of 4-1.  The CSHB 34(JUD), so moved from the House                                                             
Judiciary Standing Committee.                                                                                                   

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