Legislature(2001 - 2002)
02/11/2002 01:04 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 321 - CRIME VICTIMS' COMPENSATION Number 0096 CHAIR ROKEBERG announced that the first order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 321, "An Act relating to the purpose for crime victims' compensation; and limiting the factors that may be considered in making a crime victims' compensation award in cases of sexual assault or sexual abuse of a minor." Number 0105 REPRESENTATIVE GRETCHEN GUESS, Alaska State Legislature, sponsor, explained that the Victims' Compensation Board and the statutory language that governs it were established in 1971, and she posited that this entity and its governing language were created at a time when sexual assault and sexual abuse of minors was not discussed in depth. She offered her belief that SSHB 321 would bring the statute in line with what "we believe as a community." She added that SSHB 321 would not change the criteria for any other victims, only for victims of sexual assault and sexual abuse of a minor. REPRESENTATIVE GUESS explained that SSHB 321 deletes from the purpose statement in AS 18.67.010 what she calls the antiquated language of "innocent persons"; instead, it refers simply to "persons". It also adds language specifying that in cases of sexual assault or sexual abuse of a minor, the board [may not deny an order based on considerations of provocation, the use of alcohol or drugs by the victim, or the prior social history of the victim]. She noted that SSHB 321 has the support of the administration, "the network," Standing Together Against Rape (STAR), the Alaska Native Justice Center, [and the Alaska Native Women's Sexual Assault Committee]. REPRESENTATIVE OGAN asked why "innocent" is being deleted from the description of who will be compensated. REPRESENTATIVE GUESS posited that it is redundant language; in Section 2, she pointed out, there is language directing the board, "when ... dealing with any other crimes," to consider all circumstances determined to be relevant, including provocation, consent, or any other behavior of the victim that directly or indirectly contributed. Therefore, she opined, there is no real reason to have "innocent" in the purpose statement; "I believe it is old language, and I also believe it provides a subjectivity in cases of sexual assault, where the board could say the victim wasn't innocent because, for example, they used alcohol or drugs." She added that she thinks removing "innocent" makes the statute clearer. Number 0348 DEL SMITH, Deputy Commissioner, Office of the Commissioner, Department of Public Safety (DPS), offered support of the language in SSHB 321; "I don't think anybody's any less a victim based upon what they might have consumed in the way of alcohol, and I believe that that is no license for anybody to do anything [harmful to another person]." He said that according to his understanding, the Violent Crimes Compensation Board (VCCB), which is located within the DPS, already makes it's determinations using the guidelines proposed in SSHB 321, which, he added, is the reason for a zero fiscal note. He noted, however, that although the current VCCB operates under these proposed guidelines, there is the potential that future boards may approach the claims differently and not compensate those victims. He urged the committee to support the language change proposed by SSHB 321, which, he reiterated, is simply a reflection of the VCCB's current practice. CHAIR ROKEBERG mentioned that he has some concerns regarding the issues of negligence and culpability. He mentioned the term "comparative negligence," and asked whether excluding the prior social history of the victim, for example, "wouldn't that be like excluding the prior criminal record of a criminal?" MR. SMITH acknowledged that "if you picked a fight with somebody, Mr. Chairman, and then were injured in that [fight], that is the kind of thing that I would say would mitigate the compensation that you might have." "But if you chose to get intoxicated, and passed out on the street," he countered, pointing out that it is now a crime to have sex with someone who is passed out, "I am not sure that you chose to be a victim." A person might make some bad choices regarding alcohol and/or drugs, he noted, and while that behavior should be discouraged to the extent possible, when that person becomes the victim of a crime because he/she appeared vulnerable, then "that makes a difference to me, as a law enforcement officer." REPRESENTATIVE OGAN noted that minors do not have the maturity to make certain choices, and so with regard to crimes against a minor, not as much culpability could be attributed to someone who is not an adult. He asked whether the sponsor agreed. Number 0644 REPRESENTATIVE GUESS said that in general terms, she agrees, but added that when it comes to cases of sexual assault, she has to disagree; "provocation, the use of alcohol or drugs, past social history, I don't believe fall under culpability when it comes to rape," whether of a minor or an adult, which is what SSHB 321 is addressing. CHAIR ROKEBERG asked whether she had taken into consideration the varying degrees of sexual-abuse-of-a-minor crimes. REPRESENTATIVE GUESS said she had not. CHAIR ROKEBERG asked whether there is a degree of sexual abuse of a minor that might just involve contact. REPRESENTATIVE BERKOWITZ said he did not recall the exact distinction, but surmised that what SSHB 321 does is make sure that victims of crimes receive compensation. Therefore, he opined, the type of crime wouldn't really be material to whether someone is entitled to that compensation. CHAIR ROKEBERG remarked, "If it's the Satch Carlson contact, I'm not sure why it would even [be] before the board unless there was mental health problems." REPRESENTATIVE GUESS interjected to say that as SSHB 321 is currently written, it is excluding three things but leaving in everything else; it's leaving in consent and other relevant matters, and is just stating that provocation, use of alcohol or drugs, or the victim's prior social history cannot be considered. REPRESENTATIVE BERKOWITZ suggested that [this issue] "goes to the 'No means no,' regardless of anything else. He noted that in the "evidentiary code," we have what's called the 'rape shield law,'" offering that it basically says that character evidence cannot be used to prove conduct. To further this point, he paraphrased from the Commentary section, Alaska Rules of Court, which read: There is a current trend, especially in rape cases, to exclude all or much character evidence that relates to the victim. ... Total exclusion may protect the victim against the introduction of deeply personal facts in cases where introduction of such facts is intended to embarrass the victim rather than help the defendant, but it does so at the expense of allowing such evidence to come in for the benefit of the accused when it would substantially improve his case." REPRESENTATIVE BERKOWITZ offered the interpretation that this says, "we're not going into the victim's character, because that doesn't matter to the crime; that's irrelevant." He surmised that this kind of thinking, which, he opined, is generally accepted in the criminal code, is carried forward by "this sort of legislation" when dealing in the area of victims' rights. He added that this is a well-established line of thinking and would not raise "even a legal eyebrow." Number 0900 REPRESENTATIVE GUESS, in response to questions, said that in most of the cases she has looked at, the victims were compensated for health reasons. MR. SMITH added that a person could file a claim with the VCCB for medical treatment, for counseling, and possibly for compensation due to loss of work, and the claim is then evaluated with regard to what is compensable and what is not. REPRESENTATIVE COGHILL asked to what degree provocation "counts" with regard to other criminal proceedings. REPRESENTATIVE GUESS, after offering the interpretation that Representative Coghill is perhaps referring to the fine line between provocation and consent, noted that this fine line is one of the reasons why consent was left out of the exclusions proposed by SSHB 321. She indicated her agreement with Representative Berkowitz that the victim of sexual assault or sexual abuse of a minor does not, by definition, provoke that type of crime. REPRESENTATIVE COGHILL asked whether trying to prove guilt or innocence in a court of law is linked with getting funds through the VCCB. REPRESENTATIVE BERKOWITZ explained that when the VCCB processes a victim's claim, it is an entirely separate proceeding. He said that in a courtroom, the general rule in admitting evidence is that the judge will weigh whether the prejudicial value of the evidence is greater than the probative value; in other words, whether something is more likely to inflame the jury than it is to enlighten the jury. For the most part, he added, evidence related to the victim's character is inadmissible in sexual assault cases because it is deemed, almost universally, irrelevant. He suggested that any hypothetical situation where this is not so would be so extreme that he could not imagine [drafting] a law just for that extreme example. Number 1150 KAREN BITZER, Executive Director, Standing Together Against Rape (STAR), testified via teleconference in support of SSHB 321, and said that she is speaking on behalf of the victims and loved ones that STAR serves everyday. She noted that last year, STAR advocates responded to 279 new adult cases of sexual assault and almost 300 new cases of sexual assault of minors. She explained that STAR is an advocacy agency working to help victims and ensuring that they have access to tools for recovery. She noted that STAR's messages are constant and consistent: "We believe you; it was not your fault." One of the goals of victim's crime compensation, she said, is to help make the victims whole for their loss as a result of crime. While victims may not be made completely whole because of the physical and emotional damage they sustain, she explained that advocacy agencies such as STAR can reinforce their ability to regain control of their lives. "As one victim so aptly put it, 'It's not enough to survive; I want to thrive,'" she relayed. MS. BITZER said, "I can appreciate the struggle that we have with contributing concepts regarding all victims of crime, and I know it's one way that we protect ourselves." She noted that sexual assault truly challenges one's sense of personal safety. She said: Do you ever compare your behavior to that of someone else and say, "Well, I don't do that so this won't happen to me"; "I don't eat at McDonalds so my arteries won't clog"; or "I always wear my seatbelt so I won't be that injured in an auto accident"? Unfortunately we can't say that about sexual assault. You can do all the "right things" - not go out alone, not drink - and still be a victim of sexual assault. Are they any more or less a victim than, say, someone who was out walking alone in the dark? MS. BITZER said that [the language in SSHB 321] puts the responsibility for the crime where it belongs: on the offender. She noted that it provides victims access to services - such as therapeutic services, intervention services, and services that meet other needs - when no other resources for funds are available. She explained that over the years, STAR has helped victims secure dental work and glasses replacements when they were not able to access "victims'-of-crime compensation." She said that STAR believes that SSHB 321 will bring the statutes into line with current practice as well as into the 21st century's view of the victim. In conclusion, she applauded the sponsors "for helping to make government work for its citizens," and applauded the committee for reviewing SSHB 321 early in the session. MS. BITZER, in response to questions, said that victims' advocates at STAR do assist clients with filling out paperwork requesting victims' crime compensation, and that the advocates have written letters on behalf of clients. She said that usually, compensation covers the cost of counseling, for both victims and their families, and therapeutic intervention. She also recounted that STAR has assisted victims of sexual-abuse- of-a-minor crimes in applying to the VCCB for compensation. She added that oftentimes, it is the teenagers that have the hardest time receiving compensation from the VCCB; they may have been drinking and so may be more likely to be turned down for benefits. She explained that they, too, need intervention - not just the small children who are victims - so, in order for those teenagers to access those services, it is important for the VCCB to reach out to them as well. Number 1446 REPRESENTATIVE OGAN expressed the concern that the language in SSHB 321 is ambiguous. He indicated that he was not sure which crimes were being discussed. REPRESENTATIVE GUESS explained that the language being added in Section 2 refers to crimes of sexual assault and crimes of sexual abuse of a minor. In response to questions, she reiterated her comments that the word "innocent" is redundant, that it hurts in cases of sexual assault and sexual abuse of a minor, and that it should no longer be included in the purpose statement of AS 18.67. To elaborate, she pointed out that the language change to AS 18.67.080(c), as proposed by Section 2, still allows the board to consider all circumstances - including provocation, consent, or any other behavior of the victim that directly or indirectly contributes - for claims based on all other crimes; the language being added only addresses claims based on the crime of sexual assault or the crime of sexual abuse of a minor. She suggested that the change proposed by SSHB 321 still allows the board to consider the supposed innocence of a person who, for example, starts a bar brawl and gets his/her teeth kicked in. In response to further questions, she opined that claims for compensation are subject to all subsections of AS 18.67.080 - (a) through (d) - so a person could not get paid under AS.67.080(a) alone, for example. CHAIR ROKEBERG noted that AS 18.67.080(c) does say: "In determining whether to make an order under this section ...." REPRESENTATIVE GUESS posited that it is the inclusion of that language in AS 18.67.080(c) that makes the use of the word "innocent" in AS 18.67.010 redundant. REPRESENTATIVE OGAN asked how many claims based on sexual assault have been denied by the VCCB. REPRESENTATIVE GUESS said that because of confidentiality restrictions, reports from the VCCB do not include information pertaining to why claims are denied, so it is difficult to provide statistical data. REPRESENTATIVE BERKOWITZ asked whether there is any anecdotal evidence. REPRESENTATIVE GUESS confirmed that there is anecdotal evidence "from the community" showing that there are some cases that are questionable and which could be clarified by the removal of the word "innocent" from the purpose language. She mentioned a case in which a 14-year-old was gang raped but the VCCB denied compensation because there was alcohol involved. She said that she did not know whether the appeals process altered the outcome of that [claim], but suggested that removing "innocent" as proposed by SSHB 321 would clarify the statute on this issue. CHAIR ROKEBERG closed the public hearing on SSHB 321. Number 1699 CHAIR ROKEBERG made a motion to adopt Amendment 1, to reinsert "innocent" on page 1, line 7; Amendment 1 has the effect of keeping that language in the purpose statement of AS 18.67, which governs the VCCB. Number 1715 REPRESENTATIVE BERKOWITZ objected. CHAIR ROKEBERG, to clarify, pointed out that the purpose of the VCCB is to only award funds to people who are innocent. He noted that SSHB 321 "carves out ... an exception", and posited that the addition of the language in Section 2 is sufficient for that purpose. REPRESENTATIVE JAMES agreed. She, too, noted that the purpose statement pertains to the entirety of AS 18.67 rather than to just the provision that would be altered by Section 2. She opined that leaving the word "innocent" in the purpose statement would not affect the changes proposed by Section 2 to AS 18.67.080(c). CHAIR ROKEBERG called an at-ease from 1:34 p.m. to 1:35 p.m. REPRESENTATIVE BERKOWITZ, in defense of his objection to Amendment 1, said: A lot of times you hear on the news that someone "pled innocent" to a charge. Nobody pleads innocent; that's never what happens in a criminal case. People are judged "not guilty." And when you try and introduce the concept of innocence, ... I think it implies complete purity. What we're doing in subsection (c) is saying ... that the totality of circumstances are what are to be evaluated, because assessing complete innocence is -- you've got to disprove all the negatives. I think it's clear without the term "innocent" in there; it's an adjective that doesn't add much to the statute. REPRESENTATIVE OGAN asked if Representative Berkowitz would prefer to replace "innocent" with "not guilty". REPRESENTATIVE BERKOWITZ said no; "I just think you withdraw it and you pay compensation to persons injured." He offered that there is a tension between "innocent persons" and looking at the totality of circumstances. He opined that by getting into the issue of what innocence is, it introduces a whole other set of issues that the VCCB must then evaluate, which, he surmised, is potentially problematic. Number 1896 REPRESENTATIVE COGHILL, although acknowledging that that is a good point, noted that the VCCB is being asked to make a determination based on provocation, consent, and other behavior - to perform kind of a triage. He opined that the term "innocent" merely acts as a guiding factor. REPRESENTATIVE JAMES remarked that when reading the entire paragraph, it makes sense to retain "innocent". She suggested that it clarifies that payments won't be made to the people who are guilty of the crimes that the claims are based on. CHAIR ROKEBERG said he is offering Amendment 1 because he believes that "the degree of contributory negligence ... can be measured by the board as to the amount of the award." He opined that this is reflected currently in AS 18.67.080(c), and he surmised that SSHB 321 proposes to exclude that consideration in cases of sexual assault and sexual abuse of a minor. REPRESENTATIVE MEYER asked for the sponsor's opinion of Amendment 1. REPRESENTATIVE GUESS said that she did not think it is a "deal breaker"; it just shows that after 30 years, maybe the entire statute needs to be reviewed at some point. She noted that the Department of Law has a different opinion than the Legislative Legal and Research Services Division. She surmised that her goal could still be accomplished even if Amendment 1 is adopted. REPRESENTATIVE BERKOWITZ said he is maintaining his objection to Amendment 1. Number 2058 A roll call vote was taken. Representatives Coghill, James, Ogan, and Rokeberg voted for Amendment 1. Representatives Meyer and Berkowitz voted against it. Therefore, Amendment 1 was adopted by a vote of 4-2. REPRESENTATIVE OGAN said he would be more comfortable with SSHB 321 if it only pertained to sexual abuse of a minor. He expressed concern that if it becomes mandatory for the VCCB to award compensation to victims of sexual abuse, there might be people who will take advantage of the system if, due to mental illness or chronic substance abuse, they repeatedly put themselves in situations where they are sexually assaulted. REPRESENTATIVE BERKOWITZ asked whether Representative Ogan is suggesting that some women deliberately go out and get themselves drunk and then raped in order to get compensation? REPRESENTATIVE OGAN said no. He said that what he is suggesting is that there are probably some people who, because of serious social problems, are far more subject to sexual assault - not that they purposely seek to be raped - but then, when they are raped, they discover a system that they can repeatedly take advantage of. He said he would like to know whether there are people who "have shown up" time and time again and, if so, whether they are being denied. REPRESENTATIVE JAMES said that she could understand Representative Ogan's point but opined that there are few people who would abuse the system in that fashion. She suggested that the benefits of the change proposed by SSHB 321 outweigh the potential for abuse. REPRESENTATIVE COGHILL remarked that the VCCB has a tough job, "resources being what they are," and then having to decide whom to help and whom to deny. He asked whether the fact that someone receives compensation could affect either the ongoing court proceeding or any forthcoming appeal. He also noted his concern that the VCCB is having its discretion curtailed, given that SSHB 321 would prohibit a denial based on the items listed in Section 2. REPRESENTATIVE OGAN said he, too, has concerns about taking away the VCCB's discretion regarding cases of sexual assault, noting that he did not have any problem doing so in cases of sexual abuse of a minor. REPRESENTATIVE MEYER said he supports SSHB 321 and posited that the concerns expressed at this meeting would be considered by the VCCB. He opined that if anyone does attempt to abuse the system in the manner suggested by Representative Ogan, the VCCB will simply deny those claims. Number 2377 REPRESENTATIVE BERKOWITZ moved to report SSHB 321, as amended, out of committee with individual recommendations and the accompanying zero fiscal note. REPRESENTATIVE OGAN objected for purpose of discussion. He opined that passage of SSHB 321 would mandate payment of claims based on sexual assault, regardless of how often the claimant seeks compensation. Representative Ogan then removed his objection. Number 2416 CHAIR ROKEBERG asked whether there were any further objection to reporting SSHB 321, as amended, out of committee. There being no objection, CSSSHB 321(JUD) was reported from the House Judiciary Standing Committee.