Legislature(2013 - 2014)SENATE FINANCE 532

03/20/2013 09:00 AM Senate FINANCE


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09:21:55 AM Start
09:23:30 AM SB22
10:24:11 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 22 CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
Heard & Held
SENATE BILL NO. 22                                                                                                            
                                                                                                                                
     "An Act relating to the commencement of actions for                                                                        
     felony sex trafficking and felony human trafficking;                                                                       
     relating to  the crime of  sexual assault;  relating to                                                                    
     the crime  of unlawful contact; relating  to forfeiture                                                                    
     for certain crimes  involving prostitution; relating to                                                                    
     the  time in  which to  commence certain  prosecutions;                                                                    
     relating  to release  for violation  of a  condition of                                                                    
     release in  connection with a crime  involving domestic                                                                    
     violence;   relating   to   interception   of   private                                                                    
     communications  for certain  sex  trafficking or  human                                                                    
     trafficking offenses;  relating to  use of  evidence of                                                                    
     sexual  conduct concerning  victims of  certain crimes;                                                                    
     relating  to  procedures  for granting  immunity  to  a                                                                    
     witness   in  a   criminal   proceeding;  relating   to                                                                    
     consideration at  sentencing of  the effect of  a crime                                                                    
     on  the  victim;  relating  to  the  time  to  make  an                                                                    
     application for credit for time  served in detention in                                                                    
     a  treatment   program  or  while  in   other  custody;                                                                    
     relating to  suspending imposition of sentence  for sex                                                                    
     trafficking;  relating  to  consecutive  sentences  for                                                                    
     convictions   of   certain   crimes   involving   child                                                                    
     pornography or  indecent materials to  minors; relating                                                                    
     to  the referral  of sexual  felonies to  a three-judge                                                                    
     panel; relating  to the  definition of  'sexual felony'                                                                    
     for sentencing and probation  for conviction of certain                                                                    
     crimes;  relating to  the definition  of "sex  offense"                                                                    
     regarding  sex   offender  registration;   relating  to                                                                    
     protective orders  for stalking and sexual  assault and                                                                    
     for a  crime involving  domestic violence;  relating to                                                                    
     the  definition  of  'victim  counseling  centers'  for                                                                    
     disclosure of certain  communications concerning sexual                                                                    
     assault  or  domestic  violence;  relating  to  violent                                                                    
     crimes  compensation; relating  to certain  information                                                                    
     in retention  election of judges  concerning sentencing                                                                    
     of   persons  convicted   of   felonies;  relating   to                                                                    
     remission  of  sentences   for  certain  sexual  felony                                                                    
     offenders;  relating  to  the  subpoena  power  of  the                                                                    
     attorney  general  in cases  involving  the  use of  an                                                                    
     Internet  service   account;  relating   to  reasonable                                                                    
     efforts in child-in-need-of-aid  cases involving sexual                                                                    
     abuse  or   sex  offender  registration;   relating  to                                                                    
     mandatory reporting by athletic  coaches of child abuse                                                                    
     or  neglect;  making  conforming  amendments;  amending                                                                    
     Rules  16, 32.1(b)(1),  and  32.2(a),  Alaska Rules  of                                                                    
     Criminal  Procedure,  Rule   404(b),  Alaska  Rules  of                                                                    
     Evidence,  and  Rule  216, Alaska  Rules  of  Appellate                                                                    
     Procedure; and providing for an effective date."                                                                           
                                                                                                                                
Vice-Chair  Fairclough  observed  that there  were  two  new                                                                    
fiscal notes attached  to the bill and  related that version                                                                    
before the committee was CSSB 22(JUD).                                                                                          
                                                                                                                                
9:23:30 AM                                                                                                                    
                                                                                                                                
MICHAEL  GERAGHTY,  ATTORNEY  GENERAL,  DEPARTMENT  OF  LAW,                                                                    
related that  Commissioner Masters  could not be  present in                                                                    
committee because of the tragic  killing of a village public                                                                    
safety officer (VPSO) in Manokotak.                                                                                             
                                                                                                                                
Senator  Hoffman   corrected  Attorney   General  Geraghty's                                                                    
pronunciation  of   Manokotak.  Attorney   General  Geraghty                                                                    
thanked Senator Hoffman for his correction and apologized.                                                                      
                                                                                                                                
Attorney General  Geraghty recalled discussion about  SB 56,                                                                    
which was also  a bill that reclassified  certain crimes and                                                                    
pointed out  that SB 22 did  not deal with the  same issues.                                                                    
He  explained  that  SB  22, with  one  exception,  did  not                                                                    
criminalize any  conduct that  was not  already a  crime. He                                                                    
added  that the  bill would  not recriminalize  anything and                                                                    
would not result in putting more people in prison.                                                                              
                                                                                                                                
Vice-Chair  Fairclough  requested  a moment  of  silence  to                                                                    
observe the tragedy in Manokotak.                                                                                               
                                                                                                                                
Attorney  General Geraghty  stated that  the most  important                                                                    
aspect  of the  bill was  to pursue  the governor's  goal of                                                                    
reducing  domestic  violence,  sexual  assault,  and  sexual                                                                    
abuse  of  children.  He remarked  that  Governor  Parnell's                                                                    
administration remained focused  on protecting Alaskans from                                                                    
those crimes.  He stated that  the CSSB 22 would  reverse an                                                                    
effect of a recent decision  by the Alaska Court of Appeals,                                                                    
which allowed  defendants to attempt to  get their sentences                                                                    
reduced   under   circumstances  that   the   administration                                                                    
believed violated  the legislature's  intent. He  added that                                                                    
the bill corrected the effect of the recent court decision.                                                                     
                                                                                                                                
Attorney  General   Geraghty  stated  that  the   bill  also                                                                    
addressed gaps  in the sexual  assault statutes  to prohibit                                                                    
probation and  parole officers from having  sexual relations                                                                    
with people who were on  probation or parole. He recalled an                                                                    
incident the prior winter, in  which a contract employee for                                                                    
a probation officer had been  coercing sex with the inmates;                                                                    
through a  loophole in the  law, it was discovered  that the                                                                    
person could not be prosecuted.  He explained that that this                                                                    
provision represented the one crime  that was created in the                                                                    
bill and reiterated that the legislation's other changes                                                                        
were modifications to the existing statutory scheme.                                                                            
                                                                                                                                
Attorney General  Geraghty related  that the bill  also made                                                                    
changes in criminal procedures to  protect victims of sexual                                                                    
assault,  sexual  abuse,  and  domestic  violence.  It  also                                                                    
broadened the protection  for these victims from  the use of                                                                    
evidence of past and future sexual misconduct.                                                                                  
                                                                                                                                
9:29:24 AM                                                                                                                    
                                                                                                                                
Attorney General Geraghty read the following remarks from                                                                       
Commissioner Masters (copy on file):                                                                                            
                                                                                                                                
     The  Department of  Public Safety  is steadfast  in its                                                                    
     commitment  to  the  Governor's   goal  of  ending  the                                                                    
     epidemic  of  domestic  violence, sexual  assault,  and                                                                    
     sexual abuse  in Alaska  and I am  honored to  sit here                                                                    
     with  the Attorney  General in  introducing the  CS for                                                                    
     Senate Bill 22.                                                                                                            
                                                                                                                                
     This   legislation  builds   on   this  commitment   by                                                                    
     strengthening the investigative  tools available to the                                                                    
     Alaska  State   Troopers  and  other   law  enforcement                                                                    
     agencies  to apprehend  the perpetrators  of these  and                                                                    
     other related crimes.                                                                                                      
                                                                                                                                
     Parts of the bill are  highly useful to law enforcement                                                                    
     as it:                                                                                                                     
                                                                                                                                
        · Provides    law   enforcement    with   additional                                                                    
          investigative  tools by  broadening the  authority                                                                    
          investigators have to  intercept communications in                                                                    
          sex trafficking cases.                                                                                                
                                                                                                                                
          These  crimes  commonly  require  cooperation  and                                                                    
          communication among  perpetrators, and if  we have                                                                    
          enough evidence  to justify  a wiretap,  this bill                                                                    
          would allow  us to request  judicial authorization                                                                    
          to do so.                                                                                                             
                                                                                                                                
        · It protects young people who are victims of sex                                                                       
          trafficking     or    otherwise     involved    in                                                                    
          prostitution,  and  strengthens the  penalties  on                                                                    
          the demand  side of sex trafficking,  by requiring                                                                    
          persons who  prey on these victims  to register as                                                                    
          sex offenders.                                                                                                        
                                                                                                                                
        · It provides additional protections for victims                                                                        
          and   survivors  of   domestic  violence,   sexual                                                                    
          assault, and stalking.                                                                                                
                                                                                                                                
        · It allows victims of human trafficking, sex                                                                           
          trafficking, and unlawful  exploitation of a minor                                                                    
         to apply for violent crimes compensation.                                                                              
                                                                                                                                
        · Finally, this bill helps in the investigation of                                                                      
          child pornography  crimes, online enticement  of a                                                                    
          minor  and unlawful  exploitation  of  a minor  by                                                                    
          allowing  the Attorney  General (AG)  to designate                                                                    
          another  attorney   in  his  office   to  evaluate                                                                    
          applications  for  an administrative  subpoena  to                                                                    
          obtain business  records from an  Internet Service                                                                    
          Provider.                                                                                                             
                                                                                                                                
          The investigation  of these crimes  often requires                                                                    
          quick  action by  law  enforcement. Under  current                                                                    
          law, only the AG himself can approve them.                                                                            
                                                                                                                                
     Thank you for the opportunity to introduce the CS for                                                                      
     SB 22 to the Senate Finance Committee, and we urge                                                                         
     your support of this important legislation.                                                                                
                                                                                                                                
Senator  Dunleavy  stated  that educators  were  trained  in                                                                    
reporting  child  abuse  issues  and  that  there  was  some                                                                    
indemnification  for  the  process   as  a  school  district                                                                    
employee.  He inquired  if the  bill required  volunteers to                                                                    
report suspected child abuse and  queried when and where the                                                                    
volunteers  would get  trained. He  further inquired  if the                                                                    
volunteers would be indemnified.  His understanding was that                                                                    
someone could be sued by  another organization for reporting                                                                    
suspected abuse  and inquired if that  was correct. Attorney                                                                    
General Geraghty deferred the question to Ms. Carpeneti.                                                                        
                                                                                                                                
9:33:14 AM                                                                                                                    
                                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY GENERAL,  LEGAL SERVICES                                                                    
SECTION-JUNEAU,  CRIMINAL   DIVISION,  DEPARTMENT   OF  LAW,                                                                    
stated that the  bill added athletic coaches to  the list of                                                                    
individuals  who were  required  to  report suspected  child                                                                    
abuse  or neglect  if they  had  reason to  suspect it.  She                                                                    
pointed out  that the Senate Judiciary  Committee had worked                                                                    
hard  on the  section of  the bill  that addressed  athletic                                                                    
coaches because  of concerns similar to  Senator Dunleavy's.                                                                    
She stated  that the bill  only required  volunteer athletic                                                                    
coaches to  report if  they had  spent more  than 4  hours a                                                                    
week for 4  consecutive weeks with the team, or  20 hours in                                                                    
a single  month; additionally, volunteers would  be required                                                                    
to report if they had  received training similar to what was                                                                    
required of school district  employees under Title 47.17.022                                                                    
of the Alaska  Statutes, or if they signed  a statement that                                                                    
acknowledged  that   they  were  required  to   report.  She                                                                    
explained that for those who  were required to report, there                                                                    
was a provision in Title  47 that indemnified them for good-                                                                    
faith reporting.                                                                                                                
                                                                                                                                
Senator  Dunleavy observed  that the  bill read  "coaches or                                                                    
volunteer." Ms.  Carpeneti replied that  the way it  was re-                                                                    
drafted was "interesting"  and that DOL had  worked with the                                                                    
Legislative Affairs Agency on the bill.                                                                                         
                                                                                                                                
Vice-Chair  Fairclough  requested  a page  number  to  where                                                                    
Senator   Dunleavy  was   reading  from.   Senator  Dunleavy                                                                    
referenced page  19, lines 4  and 5, as  well as page  20 of                                                                    
the bill.                                                                                                                       
                                                                                                                                
Ms. Carpeneti  directed the  committee to  page 19,  line 22                                                                    
and shared that this  provision limited volunteer coaches to                                                                    
the circumstances that she had previously described.                                                                            
                                                                                                                                
Senator   Dunleavy  stated   that  the   second  issue   was                                                                    
indemnification.  He  recalled  that as  a  school  district                                                                    
employee,  he  felt  that  they were  led  to  believe  that                                                                    
indemnification  protected  good-faith reporters  under  the                                                                    
law. He  inquired if it  was true  that a reporter  was "not                                                                    
necessarily" indemnified  and could  have a  lawsuit brought                                                                    
against   them  for   actually   reporting.  Ms.   Carpeneti                                                                    
responded that  AS 47.17.050 granted immunity  to good-faith                                                                    
reporters  that  were  required to  report  under  the  law;                                                                    
however, this  did not exclude  an individual from  filing a                                                                    
lawsuit against a reporter. She  explained that anyone could                                                                    
file a lawsuit  and that whether or not the  suit was upheld                                                                    
was another question. She pointed  out that people who would                                                                    
be required  to report  under the bill  would have  the same                                                                    
immunity  that was  offered to  people  that were  currently                                                                    
required to report.                                                                                                             
                                                                                                                                
Senator Olson noted  that even if a  defendant had immunity,                                                                    
they would  still have to  hire a lawyer to  demonstrate the                                                                    
immunity. He inquired  who would pay for  the defense lawyer                                                                    
in this  case. Ms. Carpeneti  responded that she  was unsure                                                                    
about  the  answer  and  would  have  to  get  back  to  the                                                                    
committee with a response.                                                                                                      
                                                                                                                                
Senator  Dunleavy  requested  that Ms.  Carpeneti  cite  the                                                                    
indemnification  statute  again.  Ms.  Carpeneti  reiterated                                                                    
that the statute was AS 47.17.050.                                                                                              
                                                                                                                                
9:37:50 AM                                                                                                                    
                                                                                                                                
Senator Dunleavy  noted that unless the  volunteer reporting                                                                    
issues were  clarified, people might not  want to volunteer.                                                                    
He  noted  that  if  the  indemnification  concept  did  not                                                                    
prevent  the actual  costs associated  with a  court defense                                                                    
that  resulted  from reporting  according  to  the law,  the                                                                    
volunteer  would  be  caught  between a  "rock  and  a  hard                                                                    
place." He expounded that not  reporting would be a criminal                                                                    
offense and  that reporting could  result in  civil lawsuit.                                                                    
He opined that  a volunteer could be punished  for doing the                                                                    
right thing. Ms. Carpeneti stated  that Senator Dunleavy had                                                                    
described a  position that every  mandatory reporter  was in                                                                    
and  that  it  was  a  tough  public-policy  issue  for  the                                                                    
committee  to   decide.  She   explained  that   the  Senate                                                                    
Judiciary   Committee  had   worked  hard   on  the   bill's                                                                    
compromise and that there were  volunteer coaches that did a                                                                    
great  job assisting  paid employees  with coaching  duties.                                                                    
She observed that there were  volunteer coaches all over the                                                                    
state that  did a great  job coaching sports teams  and that                                                                    
the  Senate  Judiciary Committee  had  thought  it would  be                                                                    
appropriate to have them be  mandatory reporters if they met                                                                    
the  criteria laid  out  in the  bill.  She reiterated  that                                                                    
mandatory  reporting  for  volunteers  was  a  tough  public                                                                    
policy issue  and that every mandatory  reporter was subject                                                                    
to the  concern of  lawsuits being  filed against  them. She                                                                    
pointed out that even if the  law stated that they could not                                                                    
win, someone  could still file  a lawsuit that needed  to be                                                                    
responded to.                                                                                                                   
                                                                                                                                
Senator  Dunleavy noted  that the  concept was  fraught with                                                                    
all  sorts of  issues.  He  related that  in  an attempt  to                                                                    
protect children, people ended up  in a "choose your poison"                                                                    
situation.  He inquired  if  excluding  volunteers from  the                                                                    
bill  would result  in them  been excluded  from the  lawful                                                                    
responsibility to  report suspected child abuse  or neglect.                                                                    
Ms. Carpeneti  replied that it  would exclude them  from the                                                                    
mandatory duty to report, but  that they would still be free                                                                    
to report;  they could be  subject to civil  litigation, but                                                                    
would not  necessarily be subject to  damages. She explained                                                                    
that  civil rules  did provide  that costs  be awarded  to a                                                                    
defendant  who had  won a  case and  that she  could provide                                                                    
more information regarding the compensation for defendants.                                                                     
                                                                                                                                
Vice-Chair  Fairclough noted  that the  line of  questioning                                                                    
was  important, but  that committee  was  "rolling out"  the                                                                    
bill  and was  not  in  debate. She  remarked  that she  had                                                                    
several questions regarding who  was actually paying for the                                                                    
volunteers to be trained.                                                                                                       
                                                                                                                                
Vice-Chair  Fairclough  noted  that  there  was  a  question                                                                    
regarding the possible exclusion  of non-profit coaches from                                                                    
the  reporting  requirements.   She  remarked  that  someone                                                                    
working  for a  non-profit  organization would  be paid  and                                                                    
noted that  questions had  arisen whether  these individuals                                                                    
would be excluded on page 19,  line 23 of the bill. She read                                                                    
from page 19, line 23 of the bill as follows:                                                                                   
                                                                                                                                
     Sec. 37. AS 47.17.020 is amended by adding a new                                                                           
     subsection to read:                                                                                                        
                                                                                                                                
     (j) This section does not require an athletic coach                                                                        
     who is an unpaid volunteer to report child abuse or                                                                        
     neglect under (a)(9) of this section…                                                                                      
                                                                                                                                
Vice-Chair  Fairclough   noted  that  the   committee  would                                                                    
continue to deal with the issue of volunteers in the bill.                                                                      
                                                                                                                                
9:42:31 AM                                                                                                                    
                                                                                                                                
Senator Hoffman inquired over what  time period a person was                                                                    
required  to   report  suspected   abuse  or   neglect.  Ms.                                                                    
Carpeneti stated  that DOL had  not drafted the  wording and                                                                    
that the language  had been adopted by  the Senate Judiciary                                                                    
Committee.  She read  the bill  to mean  that, if  the other                                                                    
criteria were  met, a volunteer  coach would be  required to                                                                    
report  during  that  one  month  that  they  had  extensive                                                                    
contact with  the children.  She stated  that a  coach would                                                                    
not  have a  duty to  report during  the offseason.  Senator                                                                    
Hoffman observed  that the language should  be more specific                                                                    
if the intent was as Mr. Carpeneti had surmised.                                                                                
                                                                                                                                
Attorney  General Geraghty  related  that the  circumstances                                                                    
would have  to be  egregious for a  person to  be prosecuted                                                                    
for failing to  report suspected child abuse  or neglect. He                                                                    
discussed  a recent  scandal at  Penn  State University  and                                                                    
related that  witnesses to the  scandal had  actually failed                                                                    
to report  observed child abuse,  not just  suspected abuse.                                                                    
He  related that  concern regarding  an abusive  prosecution                                                                    
going   after   someone   for    failing   to   report   was                                                                    
understandable,  but  reiterated  that it  would  take  some                                                                    
pretty egregious  circumstances for  the state  to prosecute                                                                    
someone for failing to report.  He related that coaches were                                                                    
with  kids a  significant  amount of  time  and stated  that                                                                    
while   the   provision   may  need   some   tightening   or                                                                    
clarification, it  was appropriate. He recalled  examples in                                                                    
recent  memory where  abuse should  have been  reported, but                                                                    
instead went years undetected.                                                                                                  
                                                                                                                                
Vice-Chair Fairclough reiterated that  the committee was not                                                                    
debating the  bill, but  was trying  to understand  a policy                                                                    
that the administration was advancing to protect children.                                                                      
                                                                                                                                
Senator  Olson agreed  that the  offenses would  have to  be                                                                    
egregious  in  order  for  charges  to  be  brought  against                                                                    
someone for not reporting, but  that the issue was the "cold                                                                    
water" that  was being splashed onto  volunteers. He related                                                                    
that volunteers in the rural  areas of the state were scarce                                                                    
and  warned  that  the   bill's  volunteer  provision  could                                                                    
prevent  people   from  wanting  to   participate.  Attorney                                                                    
General Geraghty responded that the point was well taken.                                                                       
                                                                                                                                
                                                                                                                                
Senator Dunleavy pointed out that  he was not advocating not                                                                    
reporting. He  remarked that his  point had not been  to not                                                                    
report  if abuse  was observed,  but that  there were  about                                                                    
four issues imbedded  within the bill that  could be changed                                                                    
for the  benefit of everyone.  He noted for the  record that                                                                    
he was  not advocating  not reporting  egregious activities,                                                                    
but that there  were several issues in  the legislation that                                                                    
needed to  be addressed to  better protect the  children and                                                                    
others surrounding the issue.                                                                                                   
                                                                                                                                
9:47:22 AM                                                                                                                    
                                                                                                                                
Vice-Chair Fairclough  inquired whether the  committee would                                                                    
like  a sectional  analysis or  a higher  level overview  of                                                                    
bill. Senator  Olson stated that  he preferred  a sectional,                                                                    
point-by-point analysis  and noted that the  bill would have                                                                    
far reaching effects.                                                                                                           
                                                                                                                                
Vice-Chair  Fairclough requested  committee members  to hold                                                                    
their  questions  until  Ms.   Carpeneti  had  finished  her                                                                    
analysis and noted  that she wanted to give  the public time                                                                    
to  testify on  the  bill. She  requested  that the  written                                                                    
comments  of   Commissioner  Masters  be  provided   to  the                                                                    
committee.                                                                                                                      
                                                                                                                                
Ms. Carpeneti related that bill  pursued the governor's goal                                                                    
of  reducing  sexual  abuse, sexual  assault,  and  domestic                                                                    
violence in  Alaska, but that it  did so in an  unusual way.                                                                    
She explained  that with one  exception, the  bill addressed                                                                    
the   criminal  procedural   law  in   Alaska  rather   than                                                                    
substantive  law, which  made it  difficult to  explain. She                                                                    
stated that  the exception  to the bill  that created  a new                                                                    
crime was the  creation of a Class C felony  for a probation                                                                    
or  parole  officer to  engage  in  sexual penetration  with                                                                    
someone who  was on probation  or parole, which  was similar                                                                    
to  the   crime  that  prohibited  police   or  correctional                                                                    
officers  from engaging  in sexual  penetration with  people                                                                    
who were subject  to the jurisdiction of  their agencies; it                                                                    
also created a Class A  misdemeanor for probation and parole                                                                    
officers  to  engage in  sexual  contact  with a  person  on                                                                    
probation or  parole. She pointed  out that the  law already                                                                    
had an  exception to the  offense for a probation  or parole                                                                    
officer  who  was married  to  the  person on  probation  or                                                                    
parole.  The  bill added  an  affirmative  defense that  the                                                                    
probation officer  and the  person on  probation had  a pre-                                                                    
existing  relationship  before  the  person  was  placed  on                                                                    
probation  and that  it  lasted  up until  the  time of  the                                                                    
alleged  offense.  In  terms of  procedural  law,  the  bill                                                                    
allowed  victims of  sex and  human trafficking  to bring  a                                                                    
civil action  for damages, regardless  of how much  time had                                                                    
elapsed   since  the   commission   of   the  offense.   The                                                                    
legislation also  allowed the state to  prosecute defendants                                                                    
that   were  charged   with   the   distribution  of   child                                                                    
pornography,  felony  sex   trafficking,  and  felony  human                                                                    
trafficking, regardless  of the time that  had elapsed since                                                                    
the offense.                                                                                                                    
                                                                                                                                
Ms. Carpeneti related that the  bill clarified that an order                                                                    
to not contact a victim or a  witness in a case applied to a                                                                    
defendant  who had  been unable  to make  the conditions  of                                                                    
bail  and was  still in  jail. She  related that  there were                                                                    
several  cases in  Fairbanks where  a defendant  was ordered                                                                    
not to contact  the victim in a domestic  violence case, but                                                                    
had done so from jail.  She explained that the defendant had                                                                    
called the victim dozens of  times when they had been unable                                                                    
to  make bail.  She reported  that the  court had  concluded                                                                    
that the  calls from  jail were not  covered by  law because                                                                    
the  person had  not  met  bail and  was  not  out yet.  She                                                                    
pointed out  that the legislation would  overrule a decision                                                                    
by  the Court  of Appeals  based on  findings by  the Senate                                                                    
that were  adopted in  2006 when the  Senate had  raised the                                                                    
presumption ranges  for people  who were conviction  of most                                                                    
sex felonies; she offered to  go into this into more detail,                                                                    
but was happy to do so at a later time.                                                                                         
                                                                                                                                
Vice-Chair Fairclough noted  that there was a  request to go                                                                    
through  the   bill's  analysis  section  by   section.  Ms.                                                                    
Carpeneti responded that she would go section by section.                                                                       
                                                                                                                                
9:52:46 AM                                                                                                                    
                                                                                                                                
Ms. Carpeneti began to speak  to the section analysis of the                                                                    
bill  (copy  on file).  She  related  that she  had  already                                                                    
discussed Sections  1, 21, and  21 and had  reviewed Section                                                                    
2. She pointed out  that Sections 3, 4, 5, 6,  7 and 8 dealt                                                                    
with probation and parole officers.  She stated that Section                                                                    
9 filled  the gap  in the  crime of  contacting a  victim or                                                                    
witness  in  violation of  a  court  order. She  noted  that                                                                    
Section 10  allowed the state  to request the  forfeiture of                                                                    
property at  sentencing if it  was used  by the patron  of a                                                                    
prostitute  or  the  prostitute  and   if  it  was  used  in                                                                    
connection  with  the  offense   or  was  derived  from  the                                                                    
offense; the  request was discretionary  with the  court and                                                                    
required  that the  defendant be  convicted  of the  offense                                                                    
before  forfeiture could  be considered.  She reported  that                                                                    
Section 11 had  already been dsicussed, but  that it allowed                                                                    
the  state to  prosecute a  person for  the distribution  of                                                                    
child  pornography,   felony  sex  trafficking,   and  human                                                                    
trafficking at  any time. She  relayed that Sections  12 and                                                                    
13 allowed  the court, at  its own discretion, to  require a                                                                    
person  released  on  bail in  connection  with  a  domestic                                                                    
violence  crime  to be  monitored  by  a global  positioning                                                                    
device  (GPS) or  similar technology;  it required  that the                                                                    
court  follow   guidelines  that   were  developed   by  the                                                                    
Department   of   Corrections   in  cooperation   with   the                                                                    
Department  of  Public  Safety. She  pointed  out  that  the                                                                    
guidelines had  not been adopted  or considered and  that it                                                                    
was something  that would  be instituted  at a  future date.                                                                    
She added that  Sections 12 and 13 would allow  the court to                                                                    
implement monitoring under circumstances  that it felt would                                                                    
help the safety of the victim.                                                                                                  
                                                                                                                                
Ms. Carpeneti  continued to speak to  the sectional analysis                                                                    
of the  bill and reported  that Section  14 filled a  gap in                                                                    
the state's bail  law; the current law  required a defendant                                                                    
who was charged with a  domestic violence crime to appear in                                                                    
person before a  judge or call in by  telephone before being                                                                    
released  on bail.  Section  14 required  a  person who  had                                                                    
violated a  condition of release  and had been  arrested for                                                                    
the violation  to appear again  in person before  a judicial                                                                    
officer before being  release on bail; the  purpose was that                                                                    
the  defendant  in  a  domestic  violence  case  would  have                                                                    
personal contact  with the  judge, so  that the  judge could                                                                    
evaluate whether  or not  the release would  be safe  to the                                                                    
victim. She  stated Section 15  had already  been described,                                                                    
but that it allowed the  attorney general to request a judge                                                                    
to  give authorization  to wiretap  in the  investigation of                                                                    
felony  sex trafficking  and 1st  degree human  trafficking.                                                                    
She pointed out  that felony sex trafficking  and 1st degree                                                                    
human  trafficking  typically   involved  cooperation  among                                                                    
perpetrators   and  that   Section  15   would  assist   law                                                                    
enforcement in  investigating those crimes. She  stated that                                                                    
Section  16  expanded  the  "rape  shield  protection";  the                                                                    
section addressed  victims of sexual assault,  sexual abuse,                                                                    
and the  unlawful exploitation of  a minor. She  stated that                                                                    
the  law  provided  that  if  someone  wanted  to  introduce                                                                    
evidence concerning  a victim's  prior sexual  conduct, that                                                                    
the  defendant ask  permission outside  the presence  of the                                                                    
jury and  have it be addressed  by the court in  camera. She                                                                    
offered that  the information  could be  very personal  to a                                                                    
victim  and  that  a  judge  could  decide  outside  of  the                                                                    
presence of the  jury whether or not it ought  to be allowed                                                                    
to be introduced. She pointed  out that the bill allowed for                                                                    
the  protection of  evidence of  the victim's  conduct after                                                                    
the  alleged  offense in  addition  to  before the  offense.                                                                    
Section 16  also had a  requirement that specified  that the                                                                    
defense  attorney had  to  make the  request  within 5  days                                                                    
prior to the trial, unless it  was unreasonable to do so, in                                                                    
order to allow  everyone to know the rules  before the trial                                                                    
started.                                                                                                                        
                                                                                                                                
Ms. Carpeneti  continued her sectional analysis  of the bill                                                                    
and  stated   that  Sections  17   and  18   addressed  some                                                                    
efficiency requirements.  The two sections specified  that a                                                                    
person who  had been in  a treatment program as  a condition                                                                    
of  bail  release,  a condition  of  release  while  his/her                                                                    
conviction was being appealed, or  a condition of a petition                                                                    
to revoke  probation to request  credit for the time  in the                                                                    
treatment  program in  order to  allow the  court to  make a                                                                    
decision regarding  whether a person  should get  credit for                                                                    
time  in treatment  programs. She  discussed  a recent  case                                                                    
that litigated  a claim  of credit for  time in  a treatment                                                                    
program  that had  occurred 10  years before  the litigation                                                                    
and pointed out  that Sections 17 and 18  required people to                                                                    
raise the  issue as close as  possible to the time  that was                                                                    
served;  this would  allow the  court to  resolve the  issue                                                                    
with accuracy.                                                                                                                  
                                                                                                                                
9:59:06 AM                                                                                                                    
                                                                                                                                
Vice-Chair Fairclough  noted that Co-Chair Meyer  had joined                                                                    
the committee.                                                                                                                  
                                                                                                                                
Ms. Carpeneti  continued to speak to  the sectional analysis                                                                    
of the bill  and related that section 19  specified that the                                                                    
court could impose a suspended  imposition of sentence (SIS)                                                                    
for someone who was convicted  of sex trafficking; she noted                                                                    
that it  was highly unlikely  that a  court would do  so but                                                                    
that the section clarified that  a person convicted of those                                                                    
crimes would be ineligible for  an SIS. She pointed out that                                                                    
Section 20 required the judge  to give some consecutive time                                                                    
when they were  sentencing a person for more  than one crime                                                                    
involving  the   distribution  of  child   pornography,  the                                                                    
possession  of child  pornography,  or  the distribution  of                                                                    
indecent material  of minors. See  related that  Sections 21                                                                    
and  22 had  already  been discussed  and  pointed out  that                                                                    
Section  23,  which  she  considered   to  be  a  conforming                                                                    
amendment, corrected  an error in the  definition of "sexual                                                                    
felony,"  which  was  found  in   Title  12  of  the  Alaska                                                                    
Statutes. She stated that sex  trafficking in the 1st degree                                                                    
and the  online enticement  of a minor  were used  as sexual                                                                    
felonies  in  the  state's   sentencing  law  regarding  the                                                                    
increased presumptive  ranges for sex felonies.  She pointed                                                                    
out that  sex trafficking in  the 1st degree and  the online                                                                    
enticement  of  a minor  were  addressed  in the  sentencing                                                                    
provision and  opined that  they should  also be  defined as                                                                    
sex felonies in the definition section.                                                                                         
                                                                                                                                
Ms. Carpeneti continued to give  a sectional analysis of the                                                                    
bill.  She   stated  that  Section   24  had   already  been                                                                    
discussed, but that  it required a person  who was convicted                                                                    
of felony  prostitution, who  would be a  patron of  a child                                                                    
prostitute, to register  as a sex offender.  She pointed out                                                                    
that a patron of a  child prostitute would not be prosecuted                                                                    
for a  felony unless  the patron was  at least  18 years-of-                                                                    
age,  the prostitute  was under  18  years-of-age, and  that                                                                    
there was a difference of at  least 3 years between the ages                                                                    
of the two  people. She stated that Sections 25  and 26 were                                                                    
conforming  amendments that  addressed what  information had                                                                    
to  be on  a civil  protective order  for domestic  violence                                                                    
crimes  for stalking  and sexual  assault.  She pointed  out                                                                    
that there was a warning  in statute that advised people who                                                                    
had been served  with a protective order  that the violation                                                                    
of  certain provisions  in the  order might  be a  crime and                                                                    
related  that it  also warned  that the  maximum fine  for a                                                                    
violation was  a Class A  misdemeanor. She pointed  out that                                                                    
under the  current statute, the  maximum fine for a  Class A                                                                    
misdemeanor was $5,000; however,  the legislature had raised                                                                    
the maximum  fine several  years prior  to $10,000  for that                                                                    
crime  and the  two  sections reflected  the  change in  the                                                                    
statute.                                                                                                                        
                                                                                                                                
10:02:34 AM                                                                                                                   
                                                                                                                                
Ms. Carpeneti  continued to speak to  the sectional analysis                                                                    
of  the  bill and  related  that  Section 27  addressed  the                                                                    
privilege  between  a counselor  and  a  victim of  domestic                                                                    
violence  and sexual  assault. She  stated that  the current                                                                    
law provided  for an  evidentiary privilege  of confidential                                                                    
communications  between   the  victim  and   the  counselor;                                                                    
however, the way the bill  was currently drafted, it did not                                                                    
recognize that privilege for counselors  who were working on                                                                    
a  U.S. Military  base or  who were  contracted by  the U.S.                                                                    
military. Section  27 made the necessary  changes to provide                                                                    
the   protection   of    confidential   communications   for                                                                    
counselors  who  worked  on   military  bases  or  who  were                                                                    
contracted by the U.S. Military.  She opined that Section 28                                                                    
had  also been  previously  described, but  that it  allowed                                                                    
victims  of  sex  trafficking,   human  trafficking  in  any                                                                    
degree, or  victim of the  unlawful exploitation of  a minor                                                                    
to   apply  for   compensation  from   the  violent   crimes                                                                    
compensation board. She stated that  Sections 29, 40, and 41                                                                    
made the  requirements more explicit  for a  court recognize                                                                    
the  impact of  the  crime on  the victim  at  the point  of                                                                    
sentencing. Section  40 required the pre-sentence  report to                                                                    
include  a victim's  impact statement  or an  explanation of                                                                    
why  the  victim  or his/her  representative  could  not  be                                                                    
interviewed. She related that  Section 41 required the court                                                                    
to  take  the  impact  on   the  victim  into  account  when                                                                    
preparing  the  sentence  report,   as  well  as  for  other                                                                    
purposes. She  reported that Section 29  required the Alaska                                                                    
Judicial Council  to include  information about  the judges'                                                                    
attention to the victims' damages  at sentencing when it was                                                                    
compiling  information   in  connection  with   a  retention                                                                    
election.                                                                                                                       
                                                                                                                                
Ms. Carpeneti  continued to speak to  the sectional analysis                                                                    
of  the bill  and stated  that Section  30 specified  that a                                                                    
person who  was convicted  of an unclassified  or a  Class A                                                                    
sex felony was not eligible  for mandatory parole, which was                                                                    
otherwise known  as "good time."  She relayed  that Sections                                                                    
31 through 34 all addressed an  issue that was raised by the                                                                    
attorney general. She explained  that under current law, law                                                                    
enforcement could  apply to the  attorney general to  get an                                                                    
administrative subpoena for  identification information from                                                                    
an  internet service  provider.  She  shared that  currently                                                                    
only the  attorney general could consider  and approve those                                                                    
subpoenas.  Sections  31  through 34  allowed  the  subpoena                                                                    
authority to be  designated to either the head  of the Civil                                                                    
or Criminal Divisions  of the Department of  Law. She stated                                                                    
that  Section 35  addressed when  the  Office of  Children's                                                                    
Services  can apply  to a  judge  for an  excuse for  making                                                                    
reasonable efforts to unite the child  in need of aid with a                                                                    
parent  or  guardian.  She  explained  that  the  Office  of                                                                    
Children's Services was required  to make reasonable efforts                                                                    
to  reunite a  parent  with  a child,  but  Section that  35                                                                    
allowed the office  to ask a judge for the  discretion to be                                                                    
released  from this  requirement. She  related that  a judge                                                                    
had the discretion under the  bill to excuse the requirement                                                                    
from  making reasonable  efforts  to reunite  the child  and                                                                    
parent if the  court found by clear  and convincing evidence                                                                    
that the parent  or guardian had sexually  abused the child,                                                                    
sexually abused  another of their children,  or was required                                                                    
to register as sex offender  or child kidnapper. She pointed                                                                    
out that the  authority in Section 35  was discretionary and                                                                    
that there were some  circumstances where efforts to reunite                                                                    
a child with a parent or guardian were worthy.                                                                                  
                                                                                                                                
Ms.  Carpeneti continued  to  address  the bill's  sectional                                                                    
analysis and  stated that  Section 39  adopted a  court rule                                                                    
that   would  help   prevent   the   publication  of   child                                                                    
pornography;  it required  that  the  defendant and  his/her                                                                    
attorney go to wherever the  material was stored rather than                                                                    
requiring  it to  be copied  again. She  offered that  every                                                                    
time this material was copied,  the child was re-victimized.                                                                    
She  added that  the  court rule  would  specify that  child                                                                    
pornographic materials  be kept in  one place and  viewed in                                                                    
that place.  She stated that  Section 40 and 41  had already                                                                    
been discussed  and that  Section 40  changed a  court rule.                                                                    
She remarked that  in most cases in  a criminal prosecution,                                                                    
evidence  of   a  defendant's  prior   bad  acts   were  not                                                                    
admissible, but that there were  exceptions to that law with                                                                    
crimes  dealing  with  domestic violence,  as  well  as  the                                                                    
physical and  sexual abuse of  a minor. She stated  that one                                                                    
of  the exceptions  allowed evidence  of  prior physical  or                                                                    
sexual abuse of a minor if  the court determined that it was                                                                    
probative enough;  the court weighed the  probative value of                                                                    
the  evidence against  its prejudicial  effect. For  reasons                                                                    
she was  unable to recall,  the court rule  limited evidence                                                                    
of prior  bad acts  to acts that  were committed  within the                                                                    
last  ten  years  of  the current  offense  that  was  being                                                                    
charged; the  ten year look  back did not apply  to evidence                                                                    
of  prior bad  acts for  domestic violence  cases or  sexual                                                                    
assault. She stated that the  bill would remove the ten-year                                                                    
look  back.  She  pointed out  that  sentences  were  fairly                                                                    
serious for  people that were  convicted of the  physical or                                                                    
sexual abuse of  a minor and that a person  might not be out                                                                    
of  jail  for very  long  before  that ten-year  period  had                                                                    
passed;  the  change  in  Section 40  did  not  require  the                                                                    
evidence to be admitted, but  would allow the judge to weigh                                                                    
that evidence  like other  evidence of  prior bad  acts when                                                                    
they   determined  whether   the   evidence   ought  to   be                                                                    
introduced. She  related that the remaining  sections of the                                                                    
bill  were applicability  sections, which  dealt with  votes                                                                    
for  court rules  and  shared  that she  would  be happy  to                                                                    
explain them if the committee desired.                                                                                          
                                                                                                                                
10:11:27 AM                                                                                                                   
                                                                                                                                
Senator  Dunleavy inquired  if  the  bill covered  volunteer                                                                    
coaches  or just  volunteers. Ms.  Carpeneti responded  that                                                                    
she  believed  it  was  just  volunteer  coaches  that  were                                                                    
addressed  in  the  bill.  She   shared  the  definition  of                                                                    
athletic coach, which  was found on page 20 of  the bill, as                                                                    
follows:                                                                                                                      
                                                                                                                                
     .."athletic coach" includes a paid or volunteer leader                                                                     
     or assistant of a sports team..                                                                                            
                                                                                                                                
Ms.  Carpeneti thought  that  the bill  would  not apply  to                                                                    
"parents who brought  drinks for the team"  or various other                                                                    
volunteers.                                                                                                                     
                                                                                                                                
Senator Dunleavy  noted that the  bill seemed to apply  to a                                                                    
broader  term of  "volunteer" rather  than  a more  specific                                                                    
term of  "volunteer coach." Ms.  Carpeneti thought  the bill                                                                    
applied  to a  volunteer  leader or  assistant  to a  sports                                                                    
team, and would not apply to  a parent who helped out, drove                                                                    
kids home, or various other things.                                                                                             
                                                                                                                                
Senator  Dunleavy  inquired if  the  bill  was requesting  a                                                                    
constitutional change. Ms. Carpeneti  responded that she did                                                                    
not believe  there was a  constitutional change in  the bill                                                                    
and  inquired where  Senator Dunleavy  was making  reference                                                                    
to.                                                                                                                             
                                                                                                                                
Senator Dunleavy  recalled that Ms. Carpeneti  had discussed                                                                    
a required  two-thirds majority  vote from  the legislature.                                                                    
Ms.  Carpeneti responded  that the  constitution required  a                                                                    
two-thirds  majority  by  legislature  in order  to  make  a                                                                    
court-rule change, which did  not represent a constitutional                                                                    
change.                                                                                                                         
                                                                                                                                
Senator Dunleavy pointed to page 13,  line 9 of the bill and                                                                    
inquired if the age was being  changed to less than 20 years                                                                    
old. Ms. Carpeneti apologized for  not mentioning it earlier                                                                    
and  responded   that  it  was  a   conforming  change.  She                                                                    
explained that  the prior year, the  legislature had amended                                                                    
the  sex  trafficking  laws  that   dealt  with  1st  degree                                                                    
offenses.  The  bill's provision  provided  that  it was  an                                                                    
unclassified felony  for a person to  commit sex trafficking                                                                    
for a victim  under 20 years of age;  the previous benchmark                                                                    
for a felony had been 18  years old, but the legislature had                                                                    
changed  the age  to 20.  She explained  that testimony  had                                                                    
indicated that  most kids under  the age of 20  years needed                                                                    
special   protection   from    the   perpetrators   of   sex                                                                    
trafficking.   She  related   since   the   time  that   sex                                                                    
trafficking had  been made a  crime Alaska,  sex traffickers                                                                    
had  been  required  to  register   as  sex  offenders;  the                                                                    
provision simply  changed the age  to under 20 years  old to                                                                    
reflect  the change  that was  made by  the legislature  the                                                                    
prior year.                                                                                                                     
                                                                                                                                
Senator  Bishop  pointed  to  Section 27  of  the  bill  and                                                                    
inquired if  it expanded the legislation's  scope to include                                                                    
other  branches of  the  armed services  in  order to  allow                                                                    
counseling centers to  work back and forth  with each other.                                                                    
Ms. Carpeneti  replied that it  defined a  victim counseling                                                                    
center  to include  those  that were  operated  by the  U.S.                                                                    
Military or an organization that  was contracted by the U.S.                                                                    
Military to provide counseling services to victims.                                                                             
                                                                                                                                
10:15:42 AM                                                                                                                   
                                                                                                                                
Senator  Bishop  pointed  to  Section 29  of  the  bill  and                                                                    
related  that it  required the  Alaska  Judicial Council  to                                                                    
include  information  about   a  judge's  considerations  of                                                                    
victims  when  imposing a  sentence  in  a felony  case.  He                                                                    
requested further  explanation of this section  and inquired                                                                    
if  it meant  that  there was  a "rap  sheet"  on the  judge                                                                    
before  he was  elected.  Ms. Carpeneti  responded that  the                                                                    
Alaska Judicial Council gathered  information on judges when                                                                    
they  would  be  up  for judicial  retention  and  that  the                                                                    
information was gathered from a  variety of sources. Section                                                                    
29  would require  the council  to include  information that                                                                    
they received about a  judge regarding his/her consideration                                                                    
of the victims in the imposition of sentence.                                                                                   
                                                                                                                                
Senator Bishop  noted that in  the interest of  saving time,                                                                    
he  would   save  his  other   questions  for   outside  the                                                                    
committee.                                                                                                                      
                                                                                                                                
10:16:44 AM                                                                                                                   
                                                                                                                                
Vice-Chair Fairclough OPENED public testimony.                                                                                  
                                                                                                                                
LINDA GIANI,  SELF, WASILLA (via  teleconference), expressed                                                                    
concerns regarding the bill,  specifically that the statutes                                                                    
made people  not want to  report suspected abuse  or neglect                                                                    
and did  not protect reporters completely.  She related that                                                                    
she  was an  independent  care coordinator  who worked  with                                                                    
extremely  vulnerable   clients,  none  of  which   had  the                                                                    
communication skills to relate  that they were being abused.                                                                    
She shared that she was  currently involved in an eight-year                                                                    
long lawsuit that was a result  of a report of harm that she                                                                    
had filed against an assistance  living provider on behalf a                                                                    
six-year client. She  related that a lawsuit  had been filed                                                                    
against  her,  despite  the  fact  that  she  was  a  state-                                                                    
certified care coordinator who acted  in accordance with the                                                                    
statute  by filing  a  report  of harm  in  good faith.  She                                                                    
recalled  that  the State  of  Alaska  and Adult  Protective                                                                    
Services (APS)  had also sued  in the case. She  stated that                                                                    
Superior Court  in Palmer had  ruled in her favor,  but that                                                                    
she had lost  the appeal in the Alaska  Supreme Court. While                                                                    
the Alaska Supreme Court had  ruled against her in the case,                                                                    
it had  ruled in favor of  the State of Alaska  and APS. She                                                                    
opined  that the  reason that  the  suit was  filed and  was                                                                    
being  continued was  the claim  that she  had not  acted in                                                                    
good faith.  She offered that  the plaintiff's  attorney had                                                                    
come up  with "falsehoods" to  show that the report  of harm                                                                    
was not  filed in good faith.  She pointed out that  APS had                                                                    
"virtually"  said  that everything  that  was  filed in  the                                                                    
report was true and  represented violations, and pointed out                                                                    
that  she had  only been  doing her  job. She  discussed her                                                                    
difficulties in dealing with the  lawsuit and warned that if                                                                    
she lost  the case, it would  send a message to  everyone to                                                                    
not report harm.  She shared that most people  that she knew                                                                    
were not  currently reporting harm. She  offered that unless                                                                    
the words  "good faith" were  removed from the  statute, the                                                                    
issue  would make  reporters  think  twice before  reporting                                                                    
abuse.  She  pointed  out  that after  she  had  been  sued,                                                                    
another person  in her client's  home had filed a  report of                                                                    
harm that validated the same violations.                                                                                        
                                                                                                                                
10:21:46 AM                                                                                                                   
                                                                                                                                
Vice-Chair Fairclough CLOSED public testimony.                                                                                  
                                                                                                                                
Vice-Chair Fairclough  discussed the  weekly agenda  for the                                                                    
committee.                                                                                                                      
                                                                                                                                
Co-Chair Meyer discussed housekeeping.                                                                                          
                                                                                                                                
Senator   Dunleavy   requested    more   information   about                                                                    
indemnification and the Good Samaritan  concept in the State                                                                    
of Alaska.                                                                                                                      
                                                                                                                                
Vice-Chair Fairclough  hoped that  DOL would take  some time                                                                    
to discuss  the bill  with each  committee member  and noted                                                                    
that  there   had  been  significant   discussion  regarding                                                                    
"volunteer"  in  the  legislation. She  requested  that  the                                                                    
responses to  members' questions be submitted  in writing to                                                                    
Co-Chair Meyer's  office. She  noted that  committee members                                                                    
had the  ability to solicit  legal counsel in order  to make                                                                    
amendments to the bill.                                                                                                         
                                                                                                                                
SB  22  was   HEARD  and  HELD  in   committee  for  further                                                                    
consideration.                                                                                                                  
                                                                                                                                
10:24:11 AM                                                                                                                   

Document Name Date/Time Subjects
SB 22 Sectional (JUD).pdf SFIN 3/20/2013 9:00:00 AM
SB 22
SB 22 Masters Testimony 032013.pdf SFIN 3/20/2013 9:00:00 AM
SB 22