Legislature(1999 - 2000)
03/16/1999 09:01 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CS FOR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5(JUD) "An Act relating to the crime of misprision of felony." 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 crime. 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.