Legislature(1999 - 2000)
04/09/1999 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 34 - REPORTING CRIMES AGAINST CHILDREN CHAIRMAN KOTT announced the 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.