Legislature(2019 - 2020)SENATE FINANCE 532

05/04/2019 09:00 AM FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled: TELECONFERENCED
+= SB 74 INTERNET FOR SCHOOLS TELECONFERENCED
Moved CSSB 74(FIN) Out of Committee
*+ HB 14 ASSAULT; SEX OFFENSES; SENT. AGGRAVATOR TELECONFERENCED
Heard & Held
+= SB 35 CRIMES;SEX CRIMES;SENTENCING; PAROLE TELECONFERENCED
Heard & Held
CS FOR HOUSE BILL NO. 14(FIN)                                                                                                 
                                                                                                                                
     "An  Act  relating  to assault  in  the  first  degree;                                                                    
     relating  to  harassment;  relating  to  sex  offenses;                                                                    
     relating to  the definition of  'dangerous instrument';                                                                    
     providing for  an aggravating factor at  sentencing for                                                                    
     strangulation   that    results   in   unconsciousness;                                                                    
     relating to the duties of the prosecuting attorney;                                                                        
     and relating to victim notifications."                                                                                     
                                                                                                                                
9:17:40 AM                                                                                                                    
                                                                                                                                
Co-Chair von Imhof  stated that the committee  had heard the                                                                    
senate finance  version of  the bill on  March 11,  2019, at                                                                    
which time  public testimony was  taken. She said  that like                                                                    
SB  12, HB  14 sought  to close  a loophole  in the  states                                                                     
criminal statutes that  had allowed an assailant  to go free                                                                    
when  he  should  have  served  time.  The  law,  when  read                                                                    
literally,  was  unable  to  be  applied  to  the  egregious                                                                    
situation.                                                                                                                      
                                                                                                                                
9:18:57 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHN  LINCOLN, SPONSOR, stated that  the bill                                                                    
would address issues  with the current law that  had come to                                                                    
light in 2018  when a man strangled a woman  to the point of                                                                    
unconsciousness and  then sexually  assaulted her.  The bill                                                                    
would define  the strangulation or suffocation  to the point                                                                    
of  unconsciousness as  first degree  assault and  would add                                                                    
the behavior  to the list  of aggravators for  sentencing in                                                                    
other  crimes.  Additionally,  the  bill  would  expand  the                                                                    
statutory definition of  sexual  contact  to include forcing                                                                    
someone  to  come  into contact  with  ejaculate  and  would                                                                    
expand victim  notification laws  so that all  victims would                                                                    
be notified versus only felony sex crimes.                                                                                      
                                                                                                                                
9:20:11 AM                                                                                                                    
                                                                                                                                
ROSE  FOLEY, STAFF,  REPRESENTATIVE JOHN  LINCOLN, discussed                                                                    
the differences  between the current  versions of SB  12 and                                                                    
HB 14. HB 14 used the  term  ejaculate  while SB 12 referred                                                                    
to fluid  as  semen.  SB 12  investigated sentencing through                                                                    
sentence enhancement, while HB  14 created an aggravator for                                                                    
strangulation. She  said that credit  for time  served under                                                                    
electronic  monitoring was  eliminated under  SB 12  but was                                                                    
not  mentioned in  HB  14.  She concluded  the  HB 14  first                                                                    
provided  notification  to all  victims  of  sex crimes  and                                                                    
allowed the court to reschedule  a plea hearing to allow the                                                                    
court to comply with notification requirements.                                                                                 
                                                                                                                                
9:21:13 AM                                                                                                                    
                                                                                                                                
Co-Chair von  Imhof recalled that Senator  Olson had brought                                                                    
up  a  concern  in  a previous  meeting  that  pertained  to                                                                    
whether  victim  notification  requirements  regarding  plea                                                                    
agreement  struck a  balance between  ensuring that  victims                                                                    
were included,  without putting additional pressure  on them                                                                    
to participate against their wishes.                                                                                            
                                                                                                                                
Ms.  Foley directed  attention to  Page  9, line  13 of  the                                                                    
bill, which specified that there  was no requirement for the                                                                    
victim, or their legal guardian,  to provide a response to a                                                                    
prosecuting  attorney  regarding  a  plea  agreement.  If  a                                                                    
victim did  not wish  to be part  of the  legal proceedings,                                                                    
there was no requirement that  they participate or provide a                                                                    
response. The  Alaska Network  Domestic Violence  and Sexual                                                                    
Assault   had   requested   stronger   victim   notification                                                                    
language, the  sponsor had worked  with that agency  as well                                                                    
as the courts to craft  that language. Department of Law had                                                                    
raised concerns with earlier language  in the bill requiring                                                                    
the   prosecuting   attorney   to  state   in   court   what                                                                    
notification  attempts  had  been  made  with  victims.  The                                                                    
concern had  been that this  would provide  information with                                                                    
the defense, if the victim  could not be located, that could                                                                    
be detrimental to the victim's  case during the early stages                                                                    
of a plea agreement.                                                                                                            
                                                                                                                                
9:22:55 AM                                                                                                                    
                                                                                                                                
Co-Chair  von Imhof  asked Senator  Micciche  to comment  on                                                                    
victim notification component.                                                                                                  
                                                                                                                                
Senator  Micciche  said that  the  language  in the  CS  was                                                                    
identical to his original bill.  He stressed that there were                                                                    
no  expectations that  the victim  would be  required to  do                                                                    
anything.  However, he  reminded  the  committee that  Judge                                                                    
Michael Corey, who ruled in  the Schneider case that birthed                                                                    
the legislation, had testified  that requiring the victim to                                                                    
testify could  had resulted in  a stronger sentence  for the                                                                    
perpetrator. He supported the current language in the CS.                                                                       
                                                                                                                                
9:24:41 AM                                                                                                                    
                                                                                                                                
Senator Micciche noted that the  sponsor had been remarkable                                                                    
to work with.                                                                                                                   
                                                                                                                                
9:25:40 AM                                                                                                                    
                                                                                                                                
Co-Chair   von  Imhof   invited  John   Skidmore  from   the                                                                    
Department of Law to the table for questions.                                                                                   
                                                                                                                                
9:27:02 AM                                                                                                                    
                                                                                                                                
Senator Wielechowski  asked whether Department of  Law had a                                                                    
position on the bill.                                                                                                           
                                                                                                                                
JOHN  SKIDMORE, DIRECTOR,  CRIMINAL DIVISION,  DEPARTMENT OF                                                                    
LAW, explained that LAW supported  the bill. The legislation                                                                    
contained some  concepts originally found in  the governors                                                                     
suite of proposed crime bills.                                                                                                  
                                                                                                                                
9:27:38 AM                                                                                                                    
                                                                                                                                
Senator  Wielechowski asked  Mr.  Skidmore  to describe  the                                                                    
difference between a special  circumstance in sentencing and                                                                    
an aggravator.                                                                                                                  
                                                                                                                                
Mr.  Skidmore  explained  that  a  special  circumstance  in                                                                    
sentencing,  which  was   specifically  listed  in  statute,                                                                    
controlled the presumptive range  that a court would impose.                                                                    
An  aggravator was  a legal  tool  that allowed  a judge  to                                                                    
increase  a  sentence above  the  presumptive  range if  the                                                                    
court deemed appropriate.                                                                                                       
                                                                                                                                
9:28:38 AM                                                                                                                    
                                                                                                                                
Senator  Wielechowski referenced  page 8,  section 6  of the                                                                    
bill, which pertained to a  recording when asking victims or                                                                    
victims  guardians whether they  agreed with a proposed plea                                                                    
agreement. He  wondered whether this could  force victims to                                                                    
be questioned by a defendant.                                                                                                   
                                                                                                                                
Mr. Skidmore  answered "no." The  bill language  stated that                                                                    
the prosecuting  attorney shall make a  reasonable effort to                                                                    
confer  with  the  victim,  to  explain  the  proposed  plea                                                                    
agreement  and   then  ask  whether  they   agree  with  the                                                                    
agreement.  He  stated  that the  same  prosecutor,  or  the                                                                    
prosecutor  at  the  time   of  sentencing,  would  indicate                                                                    
whether  the victim  had  been spoken  to  and whether  they                                                                    
agreed. He  stressed that the  victim would not  be required                                                                    
to go to  court, to be subject to cross  examination, and no                                                                    
details of the conversation would be divulged.                                                                                  
                                                                                                                                
9:30:35 AM                                                                                                                    
                                                                                                                                
Senator Wielechowski  thought that there would  be a defense                                                                    
attorney that  would want to  hear directly from  the victim                                                                    
whether  they agreed  with the  plea  agreement. He  worried                                                                    
that this section of the bill would be challenged in court.                                                                     
                                                                                                                                
Mr.  Skidmore appreciated  the question.  In his  experience                                                                    
and that  of other prosecutors dealing  with victim's rights                                                                    
provisions, he  had not seen defense  attorneys have success                                                                    
in demanding that a victim be put on the stand.                                                                                 
                                                                                                                                
9:31:50 AM                                                                                                                    
                                                                                                                                
Senator  Wilson asked  whether the  section would  allow the                                                                    
victims  agreement with  a plea deal in a  criminal case, or                                                                    
non-agreement, to be used in a civil case.                                                                                      
                                                                                                                                
Mr. Skidmore  noted that he  did not practice civil  law. He                                                                    
did not  believe that agreement  or disagreement  would have                                                                    
any  bearing on  a civil  case.  He knew  that a  conviction                                                                    
could have influence  on a civil case if the  civil case was                                                                    
based  on the  conduct of  the  defendant. He  was not  sure                                                                    
whether  the  agreement  would   have  any  bearing  on  the                                                                    
sentence in a civil case.                                                                                                       
                                                                                                                                
Co-Chair von  Imhof noted that  there was a  public defender                                                                    
available to answer questions.                                                                                                  
                                                                                                                                
9:34:01 AM                                                                                                                    
                                                                                                                                
Senator  Wilson  wondered  what   would  happen  if  victims                                                                    
recanted or  changed their statements or  agreement with the                                                                    
plea agreement in the criminal case.                                                                                            
                                                                                                                                
Mr. Skidmore  thought the subsection  of the bill  would not                                                                    
have  an effect  on  the scenario  that  Senator Wilson  was                                                                    
describing. He furthered that the  plea agreement dealt with                                                                    
the sentence  that was  imposed and  not whether  the victim                                                                    
agreed on the  matter of charges being brought  in the first                                                                    
place.                                                                                                                          
                                                                                                                                
9:35:26 AM                                                                                                                    
                                                                                                                                
Senator  Wilson  pondered  that a  defense  attorney  for  a                                                                    
perpetrator  could   probe  the  victims   reason   for  not                                                                    
agreeing  to  a  plea  bargain, which  could  then  be  used                                                                    
against them in civil proceedings.                                                                                              
                                                                                                                                
Mr.  Skidmore  reiterated  that  he was  not  an  expert  or                                                                    
practitioner of civil law.                                                                                                      
9:36:12 AM                                                                                                                    
                                                                                                                                
Senator Micciche  shared that there was  a similar provision                                                                    
in  law concerning  victims agreeing  with plea  agreements.                                                                    
There had been  a case of sexual abuse of  a minor in Healy,                                                                    
Alaska;  in which  the parents  had not  agreed to  the plea                                                                    
agreement.                                                                                                                      
                                                                                                                                
Mr.  Skidmore  relayed that  LAW  had  policies under  which                                                                    
attorneys  communicated with  victims about  plea agreements                                                                    
before  they   were  entered  into,  and   certainly  before                                                                    
sentencing   hearings.  He   said  that   the  bill   simply                                                                    
formalized actions that the department already did.                                                                             
                                                                                                                                
9:38:06 AM                                                                                                                    
                                                                                                                                
Senator  Wielechowski agreed  with Senator  Wilson. He  said                                                                    
that in the case of a  violent sexual assault, if the victim                                                                    
decided not to testify, making  the case harder to prove and                                                                    
increasing  the  chances  of  a plea  bargain,  and  if  the                                                                    
sentence were pled down significantly  and the victim agreed                                                                    
to the plea  change, it would absolutely be used  in a civil                                                                    
case.                                                                                                                           
                                                                                                                                
Senator Wielechowski  asked to  what lengths  the department                                                                    
was required to go to attempt contact with the victim.                                                                          
                                                                                                                                
Mr. Skidmore referenced Page 8,  lines 9-11, which said that                                                                    
the  attorney  shall  make reasonable  efforts.  This  meant                                                                    
that the  department would use  the information  in existing                                                                    
files. He said  that there were other steps  that were taken                                                                    
to try  to locate victims,  rarely was law  enforcement sent                                                                    
to track down a victim.                                                                                                         
                                                                                                                                
9:40:22 AM                                                                                                                    
                                                                                                                                
Senator  Micciche asked  Mr. Skidmore  to  describe how  the                                                                    
same sentencing for  an egregious crime could  be reached by                                                                    
either using an aggregator or using enhanced sentencing.                                                                        
                                                                                                                                
Mr.  Skidmore detailed  that the  bill added  the subsection                                                                    
that  discussed  a  person knowingly  causing  a  person  to                                                                    
become unconscious by  means of a dangerous  instrument.  He                                                                    
said  that   the  increase  the   conduct  of   a  dangerous                                                                    
instrument to  a Class A  felony, could  increase sentencing                                                                    
ranges.  He stated  that under  current  law the  sentencing                                                                    
range for strangulation, which was  a Class B felony, was 0-                                                                    
2 years. He noted that the  change would up it to 3-6 years,                                                                    
and 4-7  years and  5-8 years  were being  considered. There                                                                    
was  a  concept  of  putting strangulation  into  a  special                                                                    
circumstance, which had potential  to increase the range for                                                                    
a Class B felony strangulation  from 0-2 years to 1-3 years.                                                                    
It was  also possible  to adjust  the presumptive  range for                                                                    
Class  B felonies.  He relayed  that the  aggravator in  the                                                                    
bill   said    that   if   you   strangled    someone   into                                                                    
unconsciousness  it could  serve  and  an aggravator,  which                                                                    
could only be used if it  was not an element of the offense.                                                                    
He explained  that the aggravator  could not be used  on top                                                                    
of the crime  of assault, instead the  aggravator would have                                                                    
to be  used in another  type of  crime. He related  that the                                                                    
two  different tools  allowed prosecutors  to make  tactical                                                                    
decisions  about  the  best  method  to  get  to  the  right                                                                    
sentence.                                                                                                                       
                                                                                                                                
9:43:43 AM                                                                                                                    
                                                                                                                                
Senator Micciche  thought the simple  answer for  the public                                                                    
was that using either method  would result in an appropriate                                                                    
sentence to punish the crime.                                                                                                   
                                                                                                                                
Mr.  Skidmore  stated  that without  question  the  Class  A                                                                    
felony available  in the bill would  increase the sentencing                                                                    
range for  strangulation. He said that  if the strangulation                                                                    
not been charged  as an assault, but used  as an aggravator,                                                                    
it would have made a dramatic difference in the sentencing.                                                                     
                                                                                                                                
9:45:45 AM                                                                                                                    
                                                                                                                                
Senator Wielechowski referenced  Page 2, line 4  of the bill                                                                    
and Page 1, line 13, respectively:                                                                                              
                                                                                                                                
(4) that  person recklessly  causes serious  physical injury                                                                    
to   another  by   repeated  assaults   using  a   dangerous                                                                    
instrument,                                                                                                                     
                                                                                                                                
(3) the person knowingly engages  in conduct that results in                                                                    
serious physical injury                                                                                                         
                                                                                                                                
Senator Wielechowski  asked whether  there was  a difference                                                                    
between   knowingly   causes   and   knowingly   engages  in                                                                    
conduct.                                                                                                                        
Mr. Skidmore answered in the negative.                                                                                          
                                                                                                                                
9:47:02 AM                                                                                                                    
Co-Chair von Imhof stated that  the committee would not move                                                                    
the bill.  She acknowledged that Senator  Wilson and Senator                                                                    
Wielechowski had concerns  and asserted that the  bill was a                                                                    
priority  for  the entire  legislature.  She  said that  the                                                                    
committee would continue to work with the bill sponsor.                                                                         
                                                                                                                                
9:48:03 AM                                                                                                                    
                                                                                                                                
JAENELL    MANCHESTER,   49TH    RISING,   FAIRBANKS    (via                                                                    
teleconference), spoke in support  of the bill. She asserted                                                                    
that  survivors  of  sexual   violence  were  encouraged  to                                                                    
support   but  that   the  legal   system  was   notoriously                                                                    
unfriendly  to survivors.  She cited  a story  from a  woman                                                                    
named  Jessica, who  had recounted  that  when she  reported                                                                    
being  raped, police  had told  her that  the defense  would                                                                    
 tear her  down  in  court. When asked  if she  could handle                                                                    
that,  she responded  that she  could not,  and declined  to                                                                    
press charges. She  said that including all  sex offenses in                                                                    
the  victim notification  statute,  and  stipulating that  a                                                                    
court  could  reschedule a  plea  agreement  hearing if  the                                                                    
victim  notification  requirement   was  unfulfilled,  would                                                                    
ensure  that the  legal system  was more  survivor friendly,                                                                    
while ensuring  the defendants  right to  a fair  trial. She                                                                    
added  that the  bill  would help  survivors  feel safe  and                                                                    
protect   survivors    by   elevating   the    severity   of                                                                    
strangulation. She  shared that strangulation was  a serious                                                                    
and deadly form of abuse  that was often underestimated. She                                                                    
relayed that victims of strangulation  were likely to suffer                                                                    
long-term  physical  and  mental repercussions  and  were  7                                                                    
times  more  likely to  be  killed  by their  partners.  She                                                                    
believed that  recognizing the severity of  strangulation in                                                                    
statute  would help  remove  perpetrators  from society  and                                                                    
provide additional tools to survivors  and advocates to keep                                                                    
survivors  safe.  She supported  the  amendment  to end  the                                                                    
practice   of  granting   credit  towards   a  sentence   of                                                                    
imprisonment  for time  spent  under electronic  monitoring.                                                                    
She  thought  that  passing  the  amendment  would  increase                                                                    
accountability and send the signal  that sexual violence was                                                                    
taken  seriously  by the  legislature  and  the courts.  She                                                                    
concluded that  nonconsensual contact with semen  was a form                                                                    
of sexual violence  and should be recognized as  much by the                                                                    
legislation.                                                                                                                    
                                                                                                                                
9:50:31 AM                                                                                                                    
                                                                                                                                
Senator  Wielechowski  asked  whether  the  Public  Defender                                                                    
Agency had concerns with the bill.                                                                                              
BETH  GOLDSTEIN,  ACTING   PUBLIC  DEFENDER,  DEPARTMENT  OF                                                                    
ADMINISTRATION (via teleconference),  stated that the office                                                                    
had   a   concern  with   Section   4,   which  amended   AS                                                                    
11.81.900(b)(60).  She believed  that  the  wording did  not                                                                    
require the sex  act to be committed in the  presence of the                                                                    
victim. She worried that by  separating the sex act from the                                                                    
contact   the  language   my   capture   contact  that   the                                                                    
legislature does  not intend to  punish. She  understood the                                                                    
need to close the loophole  in statute but felt the language                                                                    
could be clearer.                                                                                                               
                                                                                                                                
9:52:13 AM                                                                                                                    
                                                                                                                                
Senator  Wielechowski asked  whether  there  were any  other                                                                    
concerns.                                                                                                                       
                                                                                                                                
Ms. Goldstein replied in the negative.                                                                                          
                                                                                                                                
9:52:46 AM                                                                                                                    
AT EASE                                                                                                                         
                                                                                                                                
9:54:34 AM                                                                                                                    
RECONVENED                                                                                                                      
                                                                                                                                
Co-Chair von Imhof relayed that  the committee would set the                                                                    
bill  aside to  allow the  sponsors of  HB 14  and SB  12 to                                                                    
continue to  work with  all involved  parties on  changes to                                                                    
the bill. The  committee would take the bill back  up on the                                                                    
following Monday.                                                                                                               
                                                                                                                                
CSHB 14(FIN)  was HEARD  and HELD  in committee  for further                                                                    
consideration.                                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects
SB 74 Work Draft Version K.pdf SFIN 5/4/2019 9:00:00 AM
SB 74
HB014 Sponsor Statement.pdf SFIN 5/4/2019 9:00:00 AM
HB 14
HB014 Letters of Support.pdf SFIN 5/4/2019 9:00:00 AM
HB 14
HB014 Sectional Analysis.pdf SFIN 5/4/2019 9:00:00 AM
HB 14
SB 35 - Sex Offenses Sectional.pdf SFIN 5/4/2019 9:00:00 AM
SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB 35 - Ver. A to E Changes.pdf SFIN 5/4/2019 9:00:00 AM
SB 35
SB 35 - PSEA Letter of Support.pdf SFIN 5/4/2019 9:00:00 AM
SB 35
SB 35 Highlights.pdf SFIN 5/4/2019 9:00:00 AM
SB 35
SB 35 Transmittal Letter.pdf SFIN 5/4/2019 9:00:00 AM
SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB 74 Map - Broadband and Satellite Networks.pdf SFIN 5/4/2019 9:00:00 AM
SB 74
SB 35 DHSS NEW 041919.pdf SFIN 5/4/2019 9:00:00 AM
SB 35