Legislature(2001 - 2002)
04/09/2001 01:18 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 210 - STAT. OF LIMITATIONS:SEXUAL ASSAULT/ABUSE [Contains discussion of the testimony heard for HB 143 regarding evidence collection and preservation, and the statistical correlation between burglary and sexual assault.] Number 2047 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 210, "An Act relating to sexual assault and sexual abuse of a minor." Number 2028 REPRESENTATIVE MEYER made a motion to adopt the proposed committee substitute (CS) for HB 210, version 22-LS0782\C, Luckhaupt, 4/3/01, as a work draft. There being no objection, Version C was before the committee. REPRESENTATIVE MEYER, speaking as the sponsor, explained that the intention with Version C was to remove the statute of limitations on felony sexual assault. The original version of HB 210 included all sexual assault crimes, of which there are four different degrees, with the fourth degree being a class A misdemeanor. He clarified that currently there is no statute of limitations for sexual abuse of a minor, and Version C would not alter that; sexual abuse of a minor is only mentioned in Version C because the drafter was attempting to group together all of the time limitations that pertain to sexual assault. He said that in his mind, sexual assault is second only to murder. REPRESENTATIVE MEYER added that studies now show that incriminating evidence can prove sexual assault no matter how much time has passed. He said that it was his opinion that prosecution of sexual assault should not be limited by the passage of time because the effects of sexual assault will be with the victim for the rest of his/her life. He noted that according to testimony heard regarding HB 143, technological advances now allow for better preservation of evidence, and this evidence shows a correlation between offenders who commit [burglary] and offenders who commit [sexual assault]. He proffered that if sexual assault can be proven [beyond] a reasonable doubt, even 20 years after it occurred, then it should be prosecuted. REPRESENTATIVE MEYER noted that in addition to applying to offenses committed on or after the effective date, Version C also applies to offenses committed prior to the effective date as long as the current statute of limitations for those offenses has not expired. He mentioned that the members' packets contain additional information on deoxyribonucleic acid (DNA) collection, and he also mentioned that Version C has two zero fiscal notes and one undetermined fiscal note. Number 1851 KAREN BITZER, Executive Director, Standing Together Against Rape (STAR), testified via teleconference in support of HB 210. She said that sexual assault is a crime of fear and of power, and merely because of the trauma involved, it is an underreported crime. She added that STAR has found that although a victim may go through the evidence-collection process, at that point he/she can become even more fearful and decide not to pursue prosecution. Yet, years later, the victim will come forward and say that he/she wishes that he/she had had the courage to continue. She said STAR believes with the expansion of the concept of SART - Sexual Assault Response Team - and of child advocacy centers, along with telemedicine, there will be more collection of DNA, and therefore, there would be more opportunities to link more crimes genetically. To illustrate, she said STAR has found that in the last five years in the United States, through the use of the DNA database, over 200 ex- convicts have been linked to more recent crimes. And in Britain, since 1985, over 30,000 suspects have been linked to crime scene evidence through the use of DNA databases. Therefore, Star believes that removing the statute of limitations [for sexual assault] protects the victim's right to justice. REPRESENTATIVE JAMES asked, if someone were loath to go through the evidence collection process, whether there is a way to go forward with prosecution anyway. And if not, she wanted to know how a case could be pursued years after the fact. MS. BITZER responded that STAR would love to see more evidentiary prosecution occurring in cases of sexual assault, but the proper mechanisms need to be in place in order to do that. Currently, a person still has the right to stand before his/her accuser. For this reason, evidentiary collection and prosecution - whereby a person can be prosecuted on the evidence alone - would be a wonderful thing for sexual assault cases. She noted, however, that the legal question is whether the mechanism is in place in order for later prosecutions to take place. REPRESENTATIVE JAMES said that she viewed the question as one of finding ways in which to allow cases to go through on the basis of evidence, rather than waiting several years for a victim to come forward again. Number 1665 REPRESENTATIVE BERKOWITZ said that if HB 210 passes, there would be no statute of limitations for a criminal action, but there still would be a statute for limitations for civil action. He asked if the door should be opened in order to remove the statute of limitations for civil actions as well. MS. BITZER said that was certainly something to be considered, although she was not exactly sure what the impact would be. She explained that unlike victims of domestic violence and family members of murder victims, sexual assault victims do not usually seek restitution in civil processes. She added that this was not to say that allowing them the opportunity would not be a good thing, just that, as a standard rule of thumb, sexual assault victims are the least likely of all victims to go forward with a civil case. REPRESENTATIVE JAMES asked whether contraction of a sexually transmitted disease (STD) increases the likelihood that a sexual assault victim will file a civil action. MS. BITZER reiterated that statistically, sexual assault victims are the least likely of all victims to go forward with a civil case, regardless of STDs. Number 1574 TRISHA GENTLE, Executive Director, Council on Domestic Violence and Sexual Assault, spoke in support of HB 210, and she thanked Representative Meyer for his ongoing work in bringing the issues of sexual assault to the forefront in Alaska. She explained that the way in which HB 210 could be the most supportive of a victim of sexual assault is if the victim goes through the rape exam at the time of the assault. In this way, physical evidence - both DNA and other kinds of physical evidence - can be collected and maintained. She reported that there are a lot of situations in which victims do not want to go forth through the trial process. They have been sexually abused, they sit through hours of police reporting, they go through hours of exams (spoken of in detail last year), and, as the case moves forward, they simply want to put the whole experience behind them. Hence victims feel that they can't go forth with prosecution; they do not want to go through the additional trauma of the trial. MS. GENTLE offered that by having physical evidence on file and by removing the statute of limitations, it would provide a victim the opportunity, at a later date when he/she felt more healed and stronger, to go forth with prosecution. For example, there may be a perpetrator being charged on a rape case, and a victim who had been raped ten years ago and who had gotten an exam but at the time there was not enough evidence to forth on the case; then a connection might be made between the two cases and that perpetrator could be retried on the second assault because of matching evidence including matching DNA. In addressing the issue of a statute of limitations for a civil action, she said she thought it would be wonderful to open up the door because immediately after the crime is not the best time for a victim to be making the decision whether to go forth with a civil case. She has seen that victims - for instance, victims of child abuse or incest - do go forth with civil cases. Number 1420 BLAIR McCUNE, Deputy Director, Public Defender Agency (PDA), Department of Administration, testified via teleconference. He said [the PDA's] main concern relates to the difficulties in defending a case that is over ten years old. Trying to find alibis and witnesses becomes extremely difficult, and he opined that as being the main reason for having a statute of limitations for offenses. He said that the PDA feels that the recent increase to ten years in the statute of limitations pertaining to sexual assault and other crimes against a person is appropriate. He added that one of the obvious purposes of a statute of limitations is to allow a person to defend himself/herself when charged with a crime. He concluded by saying that the PDA was not in favor of HB 210. REPRESENTATIVE OGAN noted that that logic works both ways: prosecutors would have just as difficult a time finding witnesses - both defense and prosecution are yoked with that burden. He added, therefore, that he would not have any difficulty passing HB 210 on that basis. Number 1279 JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, explained that the reason he had added "sexual abuse of a minor" to Section 1 was for clarity's sake; the current statute pertaining to crimes against children, which is located elsewhere, already stipulates that there is no statute of limitations. He affirmed for Chair Rokeberg that sexual abuse of a minor in the fourth degree, which is a misdemeanor, is already included in that statute. CHAIR ROKEBERG added that the crime of incest has a ten-year statute of limitation, and that "Satch Carlson doesn't have a statute of [limitations]." REPRESENTATIVE BERKOWITZ asked, "How many cases do we have that are more than five years old." REPRESENTATIVE MEYER responded that according to a news interview with Juneau's chief of police, there are very few cases that go past the ten-year period, but there are some; the police chief's opinion was that those cases should still be prosecuted whenever possible. Representative Meyer said that based on the fact that there were a few such cases in Juneau, he assumed there were even more in Anchorage and Fairbanks, although he did not have a specific number. CHAIR ROKEBERG referred to Amendment 1 [22-LS0782\C.1, Luckhaupt, 4/9/01], which read as follows: Page 1, line 4, following "murder,": Insert "felony" Page 1, line 7, following "murder,": Insert "felony" Page 2, line 1: Delete "AS 11.41.427 - 11.41.458" Insert "AS 11.41.427 - 11.41.438 and 11.41.450 - 11.41.458" He asked if Amendment 1 is intended to exclude removal of the statute of limitations for the crime of sexual abuse of a minor in the fourth degree (a class A misdemeanor), thereby keeping the statute of limitations for that crime at five years. Number 1128 MR. LUCKHAUPT said that was correct; that was the effect of Amendment 1. He explained that there are two ways in which sexual abuse of a minor in the fourth degree is committed. The first involves a person under the age of 16 who engages in sexual penetration - consensual or otherwise - with a victim who is under the age of 13 and is at least three years younger than the offender; if the sexual penetration is not consensual, then an assault charge could also be filed. The second involves sexual contact between a [person who is at least 18 years of age and occupies a position of authority in relation to the victim] and a victim who is 16 or 17 years old and at least three years younger than the offender. He noted that the reference in statute to an offender who occupies a position of authority in relation to the victim is the result of [an incident involving] Satch Carlson. Number 1016 CHAIR ROKEBERG made a motion to adopt Amendment 1. To clarify, he said that there was no intention behind HB 210 to include misdemeanor sexual abuse of a minor; the only intent behind HB 210 was to remove the statute of limitations for felony sexual assaults. REPRESENTATIVE MEYER confirmed that intention. Number 0938 REPRESENTATIVE BERKOWITZ objected for the purpose of a possible amendment to Amendment 1. He noted that HB 210 would completely remove the statute of limitations on a crime, which has only been done previously for the crime of murder. He said he had concern over the removal of the statute of limitations for class C felony sexual assaults. He suggested - in seeking a balance with the law - that the existing ten-year statute of limitations suffices for that class of offense. And, with every sensitivity towards how horrific sexual assault is, he stated that "we" have differing degrees of sexual assault in statute purposely to express that there are different levels of concern, and, therefore, he was troubled by entirely lifting the statute of limitations. REPRESENTATIVE JAMES said she agreed with Representative Berkowitz. REPRESENTATIVE MEYER said: "What you're saying is that it would probably be OK to limit the statute of limitations on first degree [sexual assault] and second degree [sexual assault], which is [respectively, an] unclassified felony and [a] class B felony." But, he argued, a class C felony still involves sexual penetration and sexual contact, and in his mind, still [warrants being included in HB 210]. CHAIR ROKEBERG asked if "the old statutory rape" was considered third degree [sexual assault]. MR. LUCKHAUPT explained that the old statutory rape [crime] exists in all four of the sexual-abuse-of-a-minor statutes because "consent" was removed as a factor. He noted that the legislature has made the age of 13 the dividing line at which a victim can never consent to have sex; the legislature has decided there can never be an occasion when it is right for a 12-year-old to have sex. REPRESENTATIVE BERKOWITZ withdrew his objection to Amendment 1. Number 0688 CHAIR ROKEBERG asked if there were further objections to Amendment 1. There being no objection, Amendment 1 was adopted. Number 0672 REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual Amendment 2, "the statute of limitations be lifted for unclassified [felony] sexual assault and [unclassified felony sexual assault of a minor], A felony, and B [felony] of the same, ... which would leave the C felonies with the ten-year [statute of limitations] that exists." Number 0620 REPRESENTATIVE MEYER objected for the purpose of discussion. He asked for a definition of third degree. He added that it was his understanding that a third-degree - or class C - felony still involved penetration and [sexual] contact. Number 0603 MR. LUCKHAUPT explained that third-degree sexual abuse of a minor does involve sexual penetration, and that third-degree sexual assault, which is also a class C felony, has three forms. One form involves a guard at a correctional facility engaging in sexual penetration with a prisoner. A second form involves an offender who engages in sexual contact with a person whom the offender knows to be mentally incapable, incapacitated, or unaware that a sexual act is being committed. A third form involves a person, such as a counselor or a guard at a juvenile correctional facility, who engages in sexual penetration with a person 18 or 19 years of age who the offender knows is committed to the custody of the Department of Health and Social Services (DHSS) [or the offender is the legal guardian of the person]. Number 0512 REPRESENTATIVE BERKOWITZ noted that one of the cornerstones of criminal law is proportionality, wherein there has to be a proportional punishment to the crime. And the legislature has set up a statutory scheme whereby unclassified, class A, class B, and class C felonies, and class A and B misdemeanors exist. He said he thought that removing the statute of limitations for class C felonies was being disproportionate. He clarified that Conceptual Amendment 2 would remove the inclusion of class C felonies for the crimes of sexual assault and sexual assault of a minor from HB 210, which would then only remove the statute of limitations for unclassified felonies, class A felonies, and class B felonies of both sexual assault and sexual assault of a minor. MR. LUCKHAUPT noted that the crime of incest is a class C felony, as is the crime of indecent exposure in the first degree. CHAIR ROKEBERG remarked that HB 210 does not affect the current statute of limitations for the crimes of incest or indecent exposure. MR. LUCKHAUPT agreed but questioned whether Conceptual Amendment 2 would involve the statutes pertaining to crimes committed against children beyond what is listed in HB 210. REPRESENTATIVE BERKOWITZ noted that in his experience, children sometimes don't want to confront [the crime] until they are older, and so a longer statute of limitations is, and can be appropriate. But forgetting the crime, he said, and just looking at the classification of crimes, there is a hierarchy of unclassified, [class] A, B, and C felonies; it seems that the statute of limitations ought not to be entirely lifted on lower- level crimes, regardless of how offensive those crimes are thought to be. The legislature has made a determination that there are different categories. REPRESENTATIVE MEYER said that in his opinion, rape is rape, whether it involves a prison guard with a prisoner, or a caregiver at an old folks home or mental institution. He likened it to [the crime of] murder in that there are different levels, but all have [the statute of limitations removed]. REPRESENTATIVE BERKOWITZ countered that such was not the case [with the crime of murder]. REPRESENTATIVE OGAN requested clarification on the effects of Conceptual Amendment 2. Number 0270 CHAIR ROKEBERG explained the effects to be such that the removal of the statute of limitations for felony sexual assault and felony sexual abuse of a minor would not include the class C felonies of those crimes. Thus unclassified, class A, and B felonies for the crimes of sexual assault and sexual abuse of a minor would have no statute of limitations, and class C felonies and misdemeanors of those same crimes would retain the current ten-year statute of limitations. He clarified that [the crime of] indecent exposure in the first degree was also a class C felony. REPRESENTATIVE OGAN requested an explanation of the difference between indecent exposure in the first degree and indecent exposure in the second degree. REPRESENTATIVE MEYER asked if [the crime of] indecent exposure is considered a sexual assault. CHAIR ROKEBERG noted that [the crime of] indecent exposure already has a ten-year statute of limitations. MR. LUCKHAUPT clarified that he had posed his questions regarding [the crime of] indecent exposure because he was not sure if Representative Berkowitz intended with Conceptual Amendment 2 to affect all of the existing statute of limitations pertaining to children. He said that if Conceptual Amendment 2 only applies to [the crime of] class C sexual assault as it pertains to adults, then he did understand it. REPRESENTATIVE BERKOWITZ commented that committee staff has pointed out that there is a section that says: "even if the general time limit has expired, a prosecution for sexual assault for an offense committed against a person under the age of 18 may be commenced at anytime." Therefore, he noted, his concern regarding minors is already addressed in current statute. REPRESENTATIVE MEYER further clarified that Conceptual Amendment 2 would only apply to [adult victims of] sexual assault. CHAIR ROKEBERG agreed that Conceptual Amendment 2 would not repeal the current law regarding [victims] 18 and under. He added that Amendment 1 was nothing more than a clarification of an existing statute. REPRESENTATIVE JAMES questioned what would happen if, 20 years after a crime, it was prosecuted as a class B felony, but resulted in a class C felony. REPRESENTATIVE BERKOWITZ, "That's the way it goes." REPRESENTATIVE OGAN offered that it would be considered a lesser included offense. TAPE 01-60, SIDE A Number 0001 REPRESENTATIVE JAMES remarked that if all [the aforementioned felonies] were included in [HB 210], then that problem would not exist. REPRESENTATIVE MEYER indicated that that was the standard he was using: penetration is what separates felony from misdemeanor. REPRESENTATIVE JAMES inquired whether a class C felony involved penetration. REPRESENTATIVE MEYER said it did. REPRESENTATIVE BERKOWITZ said it did not [necessarily]. A class C [felony sexual assault] can be contact, he added. REPRESENTATIVE JAMES asked if there was a dividing line between [class B felony and class C felony sexual assaults], and if so, what it consisted of. REPRESENTATIVE MEYER said he thought a class C felony sexual assault involved penetration. Number 0061 MR. LUCKHAUPT, to clarify, said: Involving the same age groups, and the same factors in regards to whether someone's a prison guard or something like that, sexual contact is always one step below sexual penetration. ... Sexual assault in the first degree always involves penetration. You've got a form of sexual contact involving the same actors that is the second-degree offense. There are also forms of sexual penetration with new elements, involving new actors and new conditions on their relationship vis-a-vis each other; that is also classified as a second-degree offense. But ... sexual contact, which is mere touching, is always one step below sexual penetration involving the same actors - the same victim and the same offender. REPRESENTATIVE JAMES said it seems to her that [prosecution of the crime of sexual contact] ought not to be open forever. REPRESENTATIVE MEYER said he agreed. CHAIR ROKEBERG suggested that the committee adopt Conceptual Amendment 2. REPRESENTATIVE BERKOWITZ noted that one of the forms of [a class C felony sexual assault] says "engages in sexual penetration with a person 18 or 19 years of age who the offender knows is committed to the custody of the Department of Health and Social Services ... and the offender is the legal guardian of the person." CHAIR ROKEBERG suggested, then, that [the forms of class C felony sexual assault which involve sexual penetration] be exempted from Conceptual Amendment 2. REPRESENTATIVE BERKOWITZ acknowledged the difficulty in drafting such an exemption within Conceptual Amendment 2. CHAIR ROKEBERG expressed confidence that Mr. Luckhaupt could accomplish it. MR. LUCKHAUPT suggested that Conceptual Amendment 2 could say that class C [felonies] that involve sexual penetration are included in the unlimited statute of limitations. If such were agreed upon, he confirmed that he could develop language to that effect. He then described the agreed-upon Conceptual Amendment 2 as being "unclassified, class A, and class B sexual assaults involving adult victims are all unlimited statute of limitations; class C felonies ... involving adult victims where sexual penetration is involved are also unlimited statute of limitations." He added that the other class C felony sexual assault crimes retain the ten-year statute of limitations under current law. Number 0330 CHAIR ROKEBERG asked if there were any objections to Conceptual Amendment 2. There being no objection, Conceptual Amendment 2 was adopted. Number 0340 REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual Amendment 3, "to erase the differences between the criminal code and the civil code." He explained that since the statute of limitations is being removed from the criminal code, the statute of limitations should also be removed from the civil code. Number 0356 CHAIR ROKEBERG objected, and noted that Conceptual Amendment 3 would constitute tort reform. Number 0391 A roll call vote was taken. Representative Berkowitz voted for Conceptual Amendment 3. Representatives Meyer, James, Ogan, Coghill, and Rokeberg voted against it. Therefore, Conceptual Amendment 3 failed by a vote of 1-5. REPRESENTATIVE BERKOWITZ added that he thought [that failure to pass Conceptual Amendment 3] leads to a very bizarre result whereby the state is allowed to go after offenders [indefinitely] but the victims will not have the same ability. CHAIR ROKEBERG noted that Conceptual Amendment 3 was an interesting concept; because it was such a major issue, he suggested that Representative Berkowitz create other legislation to accomplish such a goal. REPRESENTATIVE BERKOWITZ remarked that [such a change to the civil code] did fit under the title of HB 210. Number 0425 REPRESENTATIVE JAMES moved to report HB 210, version 22- LS0782\C, Luckhaupt, 4/3/01, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 210(JUD) was reported from the House Judiciary Standing Committee.