Legislature(1999 - 2000)

03/16/1999 09:01 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5(JUD)                                                                            
"An Act relating to the crime of misprision of                                                                                  
PAT CARTER, aid to Senator Drue Pearce testified. He told                                                                       
the committee this bill was drafted in response to an                                                                           
incident in Nevada where a seven-year old girl was raped                                                                        
and murdered in a casino rest room. A college student                                                                           
witnessed his friend committing the crime and he walked                                                                         
away and didn't report it.  The witness was not punished                                                                        
because Nevada didn't have a Good Samaritan.                                                                                    
He explained that a person would commit the crime of                                                                            
misprision if he or she witnessed a felony committed                                                                            
against another person and failed to immediately report it.                                                                     
The bill had gone through thorough discussion and                                                                               
alteration in the Senate Judiciary Committee.  With the                                                                         
assistance of Senator Dave Donley, several changes were                                                                         
made. Initially it was too broad in language and was                                                                            
narrowed to only apply to the witness of the most heinous                                                                       
crimes, making the failure to do so a Class A misdemeanor.                                                                      
These would be: murder in the first and second degrees,                                                                         
kidnapping, arson in the first degree, sexual assault in                                                                        
the first degree and sexual assault of a child in the first                                                                     
degree. There was discussion about the word, "immediately"                                                                      
as applied to the timely reporting requirement.  The bill                                                                       
was amended to read, "in a timely manner."  There was also                                                                      
consideration given to a self-defense clause such as in a                                                                       
battered wife scenario.  Language was inserted in Section B                                                                     
Paragraph 1 that addressed that situation by giving a                                                                           
reasonable but affirmative defense if the person reasonably                                                                     
believed that they would be put as substantial risk of                                                                          
physical injury by reporting the witness of the crime.                                                                          
Senator Randy Phillips wanted a reaction from the sponsor                                                                       
to an idea to delete "in a timely manner" and replaced with                                                                     
"within 48 hours" on page 1 line 11.  He felt the language                                                                      
was too vague. Pat Carter offered Senator Dave Donley who                                                                       
participated in the discussion in the Senate Judiciary                                                                          
Committee.  He gave an example of the consideration given                                                                       
for the case of a rape. There was a possibility of charging                                                                     
a rape victim for not reporting the rape by placing a time                                                                      
frame in the bill. There was discussion in the Senate                                                                           
Judiciary Committee on the placement of this particular                                                                         
language. Senator Dave Donley agreed that was the most                                                                          
persuasive example and said there could be others where a                                                                       
witness remained in the immediate danger of harm from the                                                                       
perpetrators within the 48-hour period.                                                                                         
Senator Randy Phillips suggested a defense attorney could                                                                       
argue what the timely manner meant to his or her client.                                                                        
Pat Carter said that was why it was determined that it was                                                                      
better to leave it up to the discretion of the judge as it                                                                      
applied to individual cases. Senator Randy Phillips                                                                             
questioned whether that was wise. Senator Dave Donley                                                                           
responded that it would actually the trial of fact and                                                                          
would also be up to the jury. Since it was a subjective                                                                         
finding rather than strictly a matter of law, he doubted a                                                                      
judge would take that away from the jury. He felt there                                                                         
needed to be some flexibility when seeking to criminalize                                                                       
this type of action.  This bill would criminalize what                                                                          
would otherwise be innocent behavior. What made a person                                                                        
culpable would be their failure to report a crime, not the                                                                      
commission of an actual crime.                                                                                                  
Senator Randy Phillips assumed other states had similar                                                                         
statutes.  Pat Carter affirmed that some did.  Senator                                                                          
Randy Phillips asked how they defined this portion relating                                                                     
to "timely manner". Pat Carter answered that this bill was                                                                      
drafted in the essence of other states.  He did not know of                                                                     
another state that had an actual time constraint.                                                                               
Senator Lyda Green if there was a disincentive for someone                                                                      
who witnessed a heinous crime and without personal                                                                              
involvement, was scared to report.  If they later decided                                                                       
to report, would they be punished? Pat Carter called it the                                                                     
guilty conscious factor.  He couldn't answer, and said it                                                                       
would be the discretion of the court.                                                                                           
Senator Loren Leman referred to other statutes regarding                                                                        
the hindering of prosecution of the second degree and asked                                                                     
how this bill would interact with that.                                                                                         
Senator Al Adams noted there was a subcommittee that Co-                                                                        
Chair John Torgerson and Senator Dave Donley served on.  He                                                                     
wanted to know if the subcommittee considered the impact of                                                                     
the legislation on the Department of Corrections,                                                                               
Department of Law and other agencies that might be                                                                              
financially impacted. Co-Chair John Torgerson said each                                                                         
department submitted indeterminate fiscal notes that                                                                            
explained their positions that they could not determine                                                                         
what the fiscal impact would be since there had never been                                                                      
a similar law for historical reference.                                                                                         
ANNE CARPENETI, Assistant Attorney General, Legal Services                                                                      
Section, Criminal Division, Department of Law, came to the                                                                      
table at the request of the committee. Senator Sean Parnell                                                                     
referred to Section B, page 1 line 12: affirmative defense.                                                                     
It said it would be a affirmative defense "if the defendant                                                                     
did not report in a timely manner because the defendant                                                                         
reasonably believed that doing so would have exposed the                                                                        
defendant to a substantial risk of physical injury." He                                                                         
noted this bill applied to two different types of                                                                               
witnesses, an innocent bystander and a companion of the                                                                         
perpetrator. He was concerned that the language regarding                                                                       
the exposure of the defendant to physical injury could be                                                                       
used as a defense. If a perpetrator was harming a victim,                                                                       
he or she could just as easily harm the witness.  That                                                                          
would be Senator Sean Parnell's defense if he were in that                                                                      
situation. He wanted to understand if the affirmative                                                                           
defense would gut the statute or if it had limits.                                                                              
Anne Carpeneti attempted to explain saying the defense was                                                                      
suggested by Senator Rick Halford who was concerned about                                                                       
cases like one in New York were a mother and small boy were                                                                     
killed before they could testify to witnessing a serious                                                                        
crime. Senator Rick Halford didn't want to require people                                                                       
in that position to expose themselves to harm if they were                                                                      
innocent of any wrongdoing. It was an affirmative defense                                                                       
so that a person raising it would have to prove by a                                                                            
preponderance of evidence that he or she had a reasonable                                                                       
belief that reporting it would subject him or her to                                                                            
substantial physical injury.                                                                                                    
Senator Sean Parnell asked if prosecutors could use this as                                                                     
leverage for dealing with accomplices.  Anne hadn't thought                                                                     
about it but knew that in order to prove accomplice by                                                                          
ability there had to be guilty intent. Senator Sean Parnell                                                                     
pointed out that would not be required under this bill.                                                                         
Senator Loren Leman understood that there was an                                                                                
interaction with Section 780.  He felt it was reasonable                                                                        
clear to him.  Anne Carpeneti said that to prove the crime                                                                      
of hindering prosecution in the first or second degree                                                                          
there had to be some intent to hide or help the                                                                                 
perpetrator. Her understanding of the misprision statute                                                                        
was that the witness just had to be at the crime fail to                                                                        
report it. It was not something that was criminalized in                                                                        
the past so this would be a new step.                                                                                           
Senator Al Adams asked how the statute would define                                                                             
"witness".  Anne Carpeneti replied that was a good question                                                                     
and that it should be defined. The best approach in her                                                                         
opinion, would have the definition as being present when                                                                        
the offence occurred where perhaps there would be the right                                                                     
to make a citizens arrest of the perpetrator.  She also                                                                         
suggested the definition include seeing, hearing or                                                                             
otherwise be in the proximity where it would be happening                                                                       
in the witness' presence.                                                                                                       
Senator Al Adams asked where was the responsibility to                                                                          
assist and protect the person being harmed rather than just                                                                     
reporting it.  He argued that if someone saw a rape being                                                                       
committed that person should go try to stop it. "Was this                                                                       
addressed elsewhere?" he wanted to know.  Anne Carpeneti                                                                        
answered no, that there was no duty to prevent a crime that                                                                     
the witness did not participate in.  Senator Al Adams                                                                           
wanted to know if other states had statutes stipulating a                                                                       
duty to assist if a person witnessed a crime in progress.                                                                       
Anne Carpeneti was unaware of any but offered to research                                                                       
the issue. She explained that misprision was an old                                                                             
fashioned legal term that had its roots in England but was                                                                      
never really adopted in the United States. She felt the                                                                         
intent of this legislation was just failure to report a                                                                         
Co-Chair John Torgerson asked if the department supported                                                                       
the bill.  Anne Carpeneti was grateful for the assistance                                                                       
they received from the sponsor.  She felt that the                                                                              
legislation was good for very serious crimes such as                                                                            
murder, kidnapping and arson.                                                                                                   
Recess (approximately one minute).                                                                                              
However, Anne Carpeneti had some reservations about the                                                                         
inclusion of sexual assault or sexual abuse.  If a parent                                                                       
learned of abuse of their child, and chose to take other                                                                        
action rather than reporting the abuse to the authorities,                                                                      
she felt the parent should not be charged with a crime if                                                                       
that parent believed he or she was acting in the best                                                                           
interest of the child.                                                                                                          
Senator Dave Donley said Senator Loren Leman had asked him                                                                      
a question about the consistency of the punishments set out                                                                     
in the bill. Senator Dave Donley expressed to him that a                                                                        
lot of progress was made in the Senate Judiciary Committee                                                                      
to address the specific concern of hindering prosecution                                                                        
punishments. The crime of hindering prosecution in the                                                                          
second degree was listed as a Class B Misdemeanor, while                                                                        
the crime of misprision under this bill would be a Class A                                                                      
Misdemeanor.  Senator Dave Donley explained that the                                                                            
hindering prosecution in the second-degree charge was                                                                           
applied to incidences where a misdemeanor crime was                                                                             
committed, the crime of misprision would only be applied to                                                                     
cases where a serious, unclassified felony was committed                                                                        
and witnessed.  He wondered if the Department of Law wanted                                                                     
to comment on the relationship to the penalties for                                                                             
hindering prosecution.                                                                                                          
Anne Carpeneti responded that the department had suggested                                                                      
that the provision in the original bill for the punishment                                                                      
of a Class C Felony did not fit with the scheme of the                                                                          
other statutes.  Hindering prosecution in the first degree,                                                                     
which meant aiding or abetting in some way a felony was                                                                         
more serious conduct than simply witnessing and not                                                                             
reporting a crime.                                                                                                              
Senator Loren Leman offered a motion to move CS SS SB 5                                                                         
(JUD) from committee with accompanying indeterminate fiscal                                                                     
notes.  Without objection, it was so ordered.                                                                                   

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