Legislature(2005 - 2006)BUTROVICH 205
04/04/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB117 | |
| SB20 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 117 | TELECONFERENCED | |
| += | SB 20 | TELECONFERENCED | |
SB 20-OFFENSES AGAINST UNBORN CHILDREN
8:47:15 AM
SENATOR FRED DYSON introduced SB 20. He said federal law gives
protection to unborn children through the Unborn Victims of
Violence Act, and SB 20 is a state version of the federal law.
8:49:16 AM
SENATOR DYSON said he has been very careful not to attack the
current right of a woman for a legal abortion. No one can be
prosecuted for the death or injury of an unborn child when it
happens in the course of medical treatment. SB 20 is also
careful not to assign personhood to an unborn child.
8:51:33 AM
SENATOR DYSON said there are now children born at 24 weeks who
survive. SB 20 is an attempt to afford some measure of
protection to an unborn child as it is developing. He encouraged
the board members to think about culpability as if it were
against a person already born.
8:54:07 AM
SENATOR DYSON added he believes there are no unwanted children.
The Legislature has the ability to provide protection of the law
to most entities including game and streams.
8:59:35 AM
SENATOR GRETCHEN GUESS asked Senator Dyson to reconsider on the
violence against pregnant women issue. She suggested using
aggravating sentences. The best thing to do to protect an unborn
child is to protect all women against violence.
9:01:08 AM
SENATOR GUESS asked for the definition of death of an unborn
child in the concept of miscarriages. She stated her concern was
a miscarriage could be prosecuted under the statutes.
9:02:49 AM
SENATOR DYSON stated it would have to be "intentionally and
knowingly."
SENATOR GUESS stated "recklessly" is also included in the
criteria.
MR. WES KELLER, staff to Senator Dyson, testified the recklessly
standard is for manslaughter and criminally negligent applies to
homicide.
9:04:29 AM
SENATOR DYSON said it was a very high standard to prove it was a
knowingly intentional act.
9:06:08 AM
SENATOR GUESS asked the committee to think about the issue. A
woman who runs a 10K race could be prosecuted. SB 20 opens up
the possibility to prosecute any woman who suffers a
miscarriage.
9:07:45 AM
CHAIR SEEKINS said he has seen pregnant women taking part in
activities that some could call risky where others would not.
The medical community has differing standards.
9:10:27 AM
SENATOR DYSON asked the committee members to think of the issue
as if it were a born child.
SENATOR HOLLIS FRENCH stated there was difficulty analyzing the
situation when trying to consider an unborn fetus a born child.
9:13:44 AM
SENATOR FRENCH said the law currently provides penalties for
someone who kills a fetus through the definition of "serious
physical injury." Someone who hurts a woman and causes serious
physical injury can be prosecuted. He asked Senator Dyson how
manslaughter minimum sentences would be affected.
9:15:43 AM
SENATOR DYSON answered Alaska law makes clear distinctions and
it involves transferability of intention. When someone hurts an
unintended victim, the intention can be transferred.
9:17:56 AM
SENATOR FRENCH said adding a separate sentence for a woman who
is 4 weeks pregnant is problematic.
9:20:07 AM
CHAIR SEEKINS pondered whether a 4-week-old fetus deserves
protection under the law.
SENATOR GENE THERRIAULT said the issue becomes problematic when
it is an action the woman takes herself.
9:23:10 AM
CHAIR SEEKINS commented there was a delicate balance between a
woman choosing to participate in a physical activity, which
could bring harm to an unborn child, and a woman choosing to
ingest a harmful substance.
SENATOR GUESS commented going to work could be a physical
activity. It is also difficult when you consider a woman does
not always know when she is pregnant.
9:25:44 AM
SENATOR DYSON asserted that "knowingly" is the qualifier. He
stated it was not the intent to have people calling the police
on any woman who might be endangering an unborn child. He
expressed doubt that innocent people would be prosecuted.
Chair Seekins announced a brief recess at 9:28:21 AM.
Chair Seekins reconvened the meeting at 9:39:10 AM.
9:39:52 AM
MS. ANNA FRANKS, chief executive officer, Planned Parenthood of
Alaska, said Planned Parenthood of Alaska was unable to support
SB 20 as it is currently written, although they would support
some changes to the bill. A woman has the right to have a child
as well as the right to have a legal abortion. Their primary
concern is giving separate legal rights to the fetus. She
claimed SB 20 undermines the national trend toward a woman's
right to choose.
9:42:07 AM
MS. FRANKS voiced doubt as to the ability to prove assault on a
fetus resulted in a negative outcome. Her discussions with the
Department of Law have led her to believe sentencing aggravators
would be a more simpler and useful solution.
9:43:49 AM
CHAIR SEEKINS stated he supports giving rights to an unborn
child.
9:45:06 AM
MS. CASSANDRA JOHNSON, informed committee members that she
worked with victims and survivors of domestic and gender
violence for nine years. Although she was pleased that the
Legislature was addressing this prevalent problem, she couldn't
support the current draft of SB 20. She pointed out that
nationwide domestic violence experts unanimously oppose this
type of bill.
She reported that since the late 1970s Alaska has been in the
top five states for reported sexual assaults and in 2002 Alaska
led the nation in women killed by a significant other. It's
necessary to educate all society members to send the message
that gender violence won't be tolerated in Alaska. Sentencing
aggravators would recognize a crime committed against a pregnant
woman and give the courts flexibility to consider harm to or
loss of the fetus. Acts of violence against a woman are
abhorrent and particularly disturbing when committed against a
pregnant woman.
When a violent crime against a pregnant woman results in
miscarriage or stillbirth everyone shares the desire for the
criminal justice system to respond decisively to exact the
appropriate punishment. Protecting pregnant women from violence
is a very serious problem that deserves to be elevated above
political agendas and partisan politics, she concluded.
9:48:33 AM
MS. CARRIE ROBINSON, attorney, Alaska Network on Domestic
Violence and Sexual Assault, explained that the network has
programs statewide and it fully supports efforts to prevent
violent acts toward women. However, SB 20 has a number of
unintended consequences including preventing a victim of
domestic violence from seeking necessary medical care.
In Alaska, nearly one in four teenage mothers have reported
physical abuse suffered during pregnancy. It's important to
remember that these are just the reported statistics because
many acts of domestic violence go unreported.
9:50:10 AM
Alaska ranks in the top three per capita nationwide in sexual
assault and in 2002 it ranked number one for women murdered by
men. Furthermore, the American Medical Association Journal has
reported that murder is the number one cause of injury to
pregnant women. Studies show that abuse escalates during
pregnancy and that pregnancy is the time when a woman is at the
greatest risk of injury. Because of that, it's important that
the justice system is able to react strongly and decisively to
such acts.
She asked members to imaging their reaction if it were their
daughter who was happily married when she brought home the news
that she was pregnant but after that time her husband became
abusive. Because the couple had a non-violent relationship prior
to the pregnancy, she mistakenly believes the abuse will stop
once the baby is born.
If she were to miscarry because of the abuse to her abdomen, her
husband would be charged with murder under SB 20. The unintended
consequence of this is that her husband might be less likely to
take his wife in for emergency care and the woman might also be
reluctant to seek medical attention if she knew that her husband
might be charged with murder or manslaughter.
9:52:17 AM
MS. ROBINSON reported that for a number of reasons it takes a
woman approximately seven times to extract herself from an
abusive relationship. It's well documented that this is the most
dangerous time for her to leave the relationship. That coupled
with the fact that she may have limited financial and support
options raises the question of whether she could be charged with
failing to protect her unborn fetus under this bill.
Looking at another scenario she questioned whether a snow
machine driver should be charged with manslaughter if his
pregnant wife miscarries as a result of the ride. Without
question this would be a tragic accident, but it becomes much
more complex if rises to the level of manslaughter.
Instead of complicating the current criminal statutes, she
suggested looking at making domestic violence crimes an
aggravator and keeping the focus on the women. "Alaska can be a
leader for the nation by acknowledging a batterer cannot hurt a
fetus without hurting a woman."
9:54:37 AM
CHAIR SEEKINS asked how long the network had been in existence.
MS. ROBINSON replied they have been in Alaska for more than 20
years.
CHAIR SEEKINS questioned whether she thought the justice system
already provides adequate protection to pregnant women.
MS. ROBINSON replied she did not.
CHAIR SEEKINS asked why the network hadn't brought legislation
forward for consideration before this time.
MS. ROBINSON explained that in 1996 the network fully supported
the 1996 Domestic Violence and Protection Act and has always
striven for enhanced penalties and stricter laws to punish
violence against women. It's unfortunate that these crimes
frequently are pled out or become misdemeanor domestic violence.
Resources are short for the Department of Law to be able to
handle existing caseloads and so these crimes aren't always
punished under existing laws as they should be.
CHAIR SEEKINS advised he knows legislators who would be happy to
carry individual bills that look at what she is suggesting.
MS. ROBINSON responded the network would fully support a bill
that made it an aggravator in the criminal statutes.
9:56:12 AM
CHAIR SEEKINS commented it would be easy to get such a bill
going. There are aggravators for all sorts of things and the
network would be advised to take such a project on.
MS. ROBINSON said she understands there is comprehensive
legislation looking at all sentencing in Alaska.
CHAIR SEEKINS said that bill already passed, but it didn't deal
with naming additional aggravators it's just how they would be
categorized.
SENATOR THERRIAULT remarked several aggravators were added to
the bill before it was signed. He then asked Ms. Robinson to
clarify how a woman might be charged if she didn't take steps to
protect herself and her unborn child from an abusive situation
because the harm wouldn't be self inflicted.
MS. ROBINSON responded with the hypothetical situation of a
physician who advised a woman to leave a domestic violence
relationship because of the potential for injury to herself or
the unborn fetus. If the woman wasn't able to extract herself
before another assault happened she understands the legislation
to have the reckless element. That is to have reckless disregard
of a known risk. Therefore she would argue that under that
definition, she could be charged with failing to protect the
fetus.
9:58:40 AM
SENATOR THERRIAULT opined that is a bit of a stretch.
MS. ROBINSON argued it isn't a stretch when you consider that
other states have passed child protective legislation in which
mothers have lost custody because they didn't get out of an
abusive situation.
SENATOR THERRIAULT disagreed, but if she could point out how
that would realistically happen then the committee should look
at ways to prevent that misapplication of the law.
9:59:34 AM
CHAIR SEEKINS agreed with Senator Therriault.
SENATOR GUESS said that's where she would agree to disagree.
Referencing page 2, lines 16-23 she said that according to her
reading of "reckless" and "negligent" in the criminal statutes,
Ms. Robinson's interpretation is correct. Certainly a woman
would be told she should have gotten out of the relationship
because she knew it was hurting herself and the unborn child.
Even if she didn't know, she should have known because of the
body of available evidence.
Progress is being made in the evolution of domestic violence and
sexual assault because in the last ten years we've stopped
blaming the victim. However, the situation Ms. Robinson outlined
could fall under manslaughter and criminal negligence, but not
murder
In the five years she has been a legislator she has dealt with a
number of sexual assault and domestic violence bills and the
issue of aggravators has come up. It hasn't been easy to get
domestic violence and sexual assault bills passed. Issues that
were smaller than this have failed in one body or the other.
CHAIR SEEKINS said he would be happy to look at an aggravator
bill for domestic violence and sexual assault.
10:01:45 AM
SENATOR THERRIAULT read the terms, "recklessly causes" and "the
person causes" from page 2, lines 18 and 23 and said that if you
fail to extricate yourself from a potentially dangerous
situation you haven't caused the damage.
SENATOR CHARLIE HUGGINS said it pales him to lean over backwards
to protect the mother while subordinating the fetus.
Referencing page 5, line 12 he read, "...misconduct involving a
controlled substance in the first degree," and asked for her
thoughts on that phrase.
MS. ROBINSON said she didn't understand the question.
SENATOR GUESS advised him that misconduct involving a controlled
substance is another part of the law.
SENATOR HUGGINS said he understands that, he simply wanted her
take on what that really means from her perspective.
MS. ROBINSON asked if he was referring to a domestic violence
context.
SENATOR HUGGINS said no, he wanted to know what that means to
her if it's talking about misconduct of the mother.
CHAIR SEEKINS said it's a felony to do that.
SENATOR GUESS added it's a section of law.
10:05:48 AM
CHAIR SEEKINS clarified this adds murder of an unborn child to
the existing felonies.
SENATOR HUGGINS said he understood that then questioned if it is
conduct of the mother that is being described.
CHAIR SEEKINS replied it could be.
MS. ROBINSON said yes, it could be. Under the current version
there is no exception that the mother could be prosecuted for
something like that, but she wasn't clear how that relates to
the context of domestic violence and whether he wanted better
clarification from the Department of Law.
CHAIR SEEKINS interpreted the question to ask how people feel
about a pregnant woman who was using a controlled substance in a
manner that caused the death of an unborn child.
SENATOR HUGGINS said yes.
MS. ROBINSON responded that is a whole other issue.
10:07:52 AM
MS. JASMINE CHARIAN, 8th grade student at Dzantik'i Heeni middle
school, testified in support of SB 20. She stated the belief
that when a fetus has a heartbeat it has life and taking away
that life is unfair to the baby and even more so for the
parents. If both the mother and the fetus are injured
intentionally, more than one life should be recognized.
10:09:30 AM
MS. REBECCA WHITEMAN, Family Violence Prevention Fund
representative, described the nonprofit as the U.S. Department
of Health and Human Services national resource center on
domestic violence and healthcare. They work on policy at the
federal level and on the issue of healthcare and domestic
violence at the statewide level. Her area of expertise is in
prenatal health and she has been working on how to better screen
for family violence into those programs.
10:10:38 AM
MS. WHITEMAN said they were asked to weigh in because in other
states precedents have been set when people have worked toward
something that seemed to be a good idea, but had unintended
consequences. She expressed concern that SB 20 could put women
in harms way and set them up to be re-victimized. The concerns
are exactly those expressed by Ms. Robinson. If a woman is in a
violent relationship and a doctor advises her to leave and she
doesn't do so she might not seek medical care due to concern
about what would happen to the partner.
10:13:05 AM
MR. CHIP WAGGONER, executive director Alaska Catholic
Conference, testified that the federal government has passed a
similar law with regard to crimes on federal property and at
least 29 states have passed a similar law.
MR. WAGONER expressed the view that God created each person and
as such, each person has dignity and a right to life from
conception to a natural death.
10:14:12 AM
MR. WAGGONER said SB 20 recognizes that a child in the womb
deserves the same protection as everyone in the room. Quoting a
parent who attended the Key Campaign, he said that when an
unborn child is taken and a parent's dreams for that child are
shattered, the responsible party should be held accountable. The
Catholic Conference fully supports SB 20 and would also support
those people working in the domestic violence arena to prevent
domestic violence. They and the Catholic bishops recognize this
as a serious problem in the state. He clarified the Catholic
Conference is the official public policy voice for the Roman
Catholic Church in Alaska.
10:16:02 AM
SENATOR GUESS asked if the Catholic Conference has taken a
position on whether or not any miscarriage should be
criminalized.
MR. WAGGONER replied they have not taken a position and none of
the bishops are criminal attorneys. He had a number of
observations. He suggested the attorney general should give an
opinion on the bill to make sure it treats the unborn in a
manner that is consistent with those who are alive. He
acknowledged that accidents do happen and not all are crimes. He
hadn't heard prosecutorial discretion raised and certainly
prosecutors do have to decide whether or not something falls
within the realm of an accident or the realm of a crime. Not all
snowmobile accidents should result in a charge of negligent
homicide or reckless endangerment. He suggested the same thing
would happen with this bill. You simply have to rely on
prosecutors to do the right thing.
10:19:09 AM
SENATOR HUGGINS said he didn't believe a mother would be held
responsible for exercising during pregnancy if she were to
miscarry.
CHAIR SEEKINS asked if any organization affiliated with the
Catholic Church has ever taken a position that a mother could be
held responsible for harm to an unborn child if she was
participating in a lawful activities.
MR. WAGGONER said abortion.
CHAIR SEEKINS said he understood the position on abortion. He
was talking about horseback riding, or a 10K race or a
rollercoaster ride.
MR. WAGGONER said no.
CHAIR SEEKINS advised the committee is charged with examining
potential bills to make sure they comply with both the U.S. and
state constitutions. It's understood that Roe versus Wade is an
interpretation of the Constitution but what he's been hearing is
that the state doesn't have the right to operate in other areas
that people would have liked Roe versus Wade to have applied.
Looking strictly at the language and interpretation of Roe
versus Wade, he suggested that nowhere does it say the state
cannot extend protection of unborn children in situations that
are outside the particular circumstances addressed in that case.
He didn't believe this bill was treading on dangerous ground
with regard to Roe versus Wade so when people say that SB 20 is
treading on their constitutional rights he remains unconvinced.
He encouraged those who opposed the bill on constitutional
grounds to bring supporting evidence forward.
If there is conclusive evidence that the committee is treading
where they are not authorized to tread, he needs to see the
evidence.
10:24:46 AM
CHAIR SEEKINS asked Ms. Carpeneti to comment on the
interpretation of the word, "causes" on page 2, lines 18 and 23.
10:25:13 AM
MS. ANNE CARPENETI, criminal division, Department of Law (DOL),
acknowledged she heard the discussion that a woman might
disregard her doctor's advice and return to an abusive
relationship and the concern about charges if there was a
subsequent miscarriage. Those situations would depend on facts
and it would be an extreme fact situation to argue that going
back to the relationship contributed to the death of the unborn
child.
CHAIR SEEKINS noted that Black's Law Dictionary defines
"feticide" as the act or instance of killing a fetus, usually by
assaulting and battering the mother - an intentionally induced
miscarriage. He asked if folding SB 20 into that definition
would come closer to the discussion heard that day about
unintentionally induced miscarriages.
MS. CARPENETI didn't know that the term used would make a
difference.
CHAIR SEEKINS asked for a definition to protect the mother so
that an unintentional miscarriage wouldn't be against the law.
MS. CARPENETI replied in murder of an unborn child it's against
the law to intend to cause the death of an unborn child or for
another person to cause the death of an unborn child. Problems
arise when discussing manslaughter and criminally negligent
homicide.
10:28:06 AM
CHAIR SEEKINS asked what kind of language it would take to
exclude the unintentional miscarriage of the child by the
mother.
MS. CARPENETI said it was too important an issue to give an
opinion without more thought. Last year lawful acts by the
mother were added and she didn't know if the sponsor was
interested in going that direction this year.
CHAIR SEEKINS said that section of the bill was of particular
interest to him and he didn't want anyone in the justice system
to charge that they would try to put a mother on trial for
participating in a legal activity that unintentionally caused a
miscarriage.
Chair Seekins held SB 20 in committee.
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