Legislature(2005 - 2006)BUTROVICH 205
04/19/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB20 | |
| SB106 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 20 | TELECONFERENCED | |
| += | SB 106 | TELECONFERENCED | |
| += | SB 74 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 20-OFFENSES AGAINST UNBORN CHILDREN
8:39:00 AM
CHAIR SEEKINS announced SB 20 to be up for consideration.
SENATOR FRED DYSON presented a committee substitute (CS) for the
committee.
SENATOR CHARLIE HUGGINS moved Version \P as the working
document. Hearing no objections, the motion carried.
MR. WES KELLER, staff to Senator Dyson, explained the CS. The
primary difference in Version \P is added second-degree assault
language. The paragraph that allowed for a conviction on the
standard of a person acting recklessly, causing serious physical
injury has been eliminated. Any situation where a pregnant woman
unintentionally harms an unborn child has been removed. Any
reference to alcohol consumption has been removed from the
definition section.
8:41:04 AM
CHAIR SEEKINS asked whether the sponsor was saying a child born
with the presence of cocaine or with fetal alcohol syndrome
(FAS) is of no concern.
MR. KELLER responded SB 20 would not enable prosecution for
those situations. In the interest of moving SB 20 forward,
future legislation would have to address drug and alcohol abuse.
CHAIR SEEKINS commented he is not willing to accept that
premise. He stated FAS is child abuse.
SENATOR DYSON agreed.
CHAIR SEEKINS advised it was his intent is to make it illegal to
harm unborn children with either legal substances or illegal
substances.
8:42:33 AM
SENATOR GRETCHEN GUESS asked Mr. Keller to explain whether the
definition of "serious physical injury" has to accompany a
premature birth or would SB 20 alter AS 11.81.900 to include
premature birth.
MR. KELLER preferred to let the Department of Law (DOL) answer
the question.
8:43:57 AM
MS. ANNE CARPENETI, criminal division, Department of Law (DOL),
said the definition of "serious physical injury" is already in
AS 11.81.900 and it includes the additional definition, which is
low birth weight.
SENATOR GUESS asked Ms. Carpeneti to explain how the law could
hold someone accountable if the woman has only one fetus but not
if there are multiple fetuses.
MS. CARPENETI said the purpose for adding the fix to the
definition is that multiple births will always have a lower
birth rate.
8:45:36 AM
SENATOR HOLLIS FRENCH asked Ms. Carpeneti the typical weight of
a set of twins.
MS. CARPENETI replied most are less than 5 pounds each.
Senator Gene Therriault joined the committee.
CHAIR SEEKINS commented low birth weight is a symptom but
criminal causation would have to be proven.
MS. CARPENETI replied in order to prosecute under SB 20; one
would have to prove the other elements of the offense. Under the
proposed AS 11.41.282 (a) (2), one would have to prove a person
recklessly caused serious physical injury to an unborn child by
repeated assaults even if each individual assault did not cause
serious physical injury.
CHAIR SEEKINS asserted reckless behavior has to first be shown.
MS. CARPENETI agreed. She said there are other alternatives to
define serious physical injury. There could be evidence that
serious physical injury occurred without holding low birth
weight as signature proof.
CHAIR SEEKINS asked Ms. Carpeneti whether it was reasonable to
assume that low birth weight is a symptom of serious physical
injury.
8:48:26 AM
MS. CARPENETI agreed low birth weight would be evidence of
serious physical injury.
CHAIR SEEKINS asked Senator Dyson whether that was his intent.
SENATOR DYSON stated evidence shows being born early works
against a healthy life. Activities that assault an unborn child
are what SB 20 is attempting to criminalize.
8:50:28 AM
CHAIR SEEKINS mentioned there are many things that would cause
an early birth. He was hesitant to make the assumption low birth
weight would be proof of reckless behavior.
MS. CARPENETI clarified low birth weight is defined as serious
physical injury in SB 20. Alternatives would have to be
discussed with the sponsor.
Chair Seekins announced a brief at ease at 8:53:07 AM.
Chair Seekins reconvened the meeting at 9:05:52 AM.
CHAIR SEEKINS explained the reason for going off the record was
to allow the public audience to comment. He asked Ms. Carpeneti
how to word SB 20 to reflect low birth weight as a symptom and
not proof of serious physical injury.
MS. CARPENETI commented the discussion off record was the
possibility of changing SB 20 from defining serious physical
injury to holding low birth weight as prima fascia evidence.
SENATOR DYSON agreed.
CHAIR SEEKINS:
I think it is very important that we try to say the
intent was the reckless part of it, plus the action
was part of it and the result was serious physical
injury. Low birth weight is a measurement of serious
physical injury and isn't triggered without the
criminal conduct. If we can conceptually amend this
and have the DOL and the sponsor work together to word
it that way, the Chairman would offer it as a
conceptual amendment to Page 4, the Sections contained
in line 3 through line 6. Is there discussion or
objection to that conceptual amendment? Seeing none,
we've adopted that as Amendment 1.
SENATOR DYSON:
For the record let me state it is not our intention a
mother be charged because of a premature birth or a
low birth weight child. It is our intentions that
someone is charged if they have the criminal intent or
reckless disregard and an assault on the woman
precipitates a premature birth.
9:08:54 AM
SENATOR FRENCH shared the concern of the committee Chair with
FAS and FAE children. He said Page 3, lines 22-24 almost
perfectly defines how a woman would cause FAE/FAS through
consumption of alcohol. Each individual drink may not result in
profound change to the fetus but accumulatively it does.
CHAIR SEEKINS commented repeated testimony shows an FAS child
costs the state over $1 million dollars.
9:11:27 AM
SENATOR DYSON said SB 20 addresses human rights and protecting
individuals against assault.
9:14:28 AM
SENATOR DYSON added the medical community advocates pregnant
women to abstain from alcohol. He has choose to steer away from
the alcohol and drug factor in SB 20 because there is no current
medical evidence to show when those substances become a factor
in the development of a fetus.
SENATOR GUESS asked Ms. Carpeneti whether a pregnant woman who
stays in a domestic violence situation, which results in serious
physical injury to her fetus, would be charged with a crime.
MS. CARPENETI stated the law school definition describes
conduct. The circumstances described would not qualify.
9:17:02 AM
SENATOR GUESS commented it might be up to a jury to decide
whether or not the woman should have left.
MS. CARPENETI responded the behavior of the woman would have to
be extremely reckless.
CHAIR SEEKINS commented a judge would instruct a jury as to the
standards which apply.
MS. CARPENETI agreed.
SENATOR DYSON commented the word "extreme" is a very high
standard.
9:18:45 AM
SENATOR DYSON reiterated SB 20 attempts to give protection when
there is clearly reckless behavior.
SENATOR FRENCH asked Ms. Carpeneti to respond to his earlier
example of repeated assaults with regard to FAE/FAS.
MS. CARPENETI advised SB 20 as currently written does not
address alcohol. The repeated assaults section is talking about
assaults against the law and drinking alcohol is not against the
law.
SENATOR GUESS said SB 20 is deciding a new class of crimes. She
voiced distrust of the way society treats women in domestic
violence situations.
9:21:36 AM
SENATOR GUESS referred to Page 3 lines 2-3 and asked for
clarification on the type of medical treatment referenced.
Medical treatment could be the reason for a person to file a
lawsuit.
9:23:35 AM
CHAIR SEEKINS stated his interpretation was a miscarriage caused
by visiting a doctor or dentist would not indicate a criminal
act by the pregnant woman.
9:25:01 AM
SENATOR FRENCH reminded the committee members of his proposed
amendment identified as Version \X.5.
SENATOR FRENCH moved Amendment 2.
24-LS0197\X.5
Mischel
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 20(STA)
Page 1, line 1:
Delete all material and insert:
"An Act enhancing penalties for crimes committed against
pregnant women."
Page 1, line 3 through page 7, line 8:
Delete all material and insert:
"* Section 1. AS 11 is amended by adding a new chapter to
read:
Chapter 32. Enhanced Penalties.
Sec. 11.32.100. Penalties for crimes committed
against pregnant women. (a) Notwithstanding another
provision of this title or AS 12, if a person commits a
crime defined in this title against a pregnant woman who
the person knew or should have known to be pregnant that
results in a miscarriage or stillbirth, the crime shall be
punished in the following manner:
(1) a crime defined as murder in the first
degree under AS 11.41.100 shall be punished by a sentence
of 30 - 99 years;
(2) a crime defined as murder in the second
degree under AS 11.41.110 shall be punished by a sentence
of 20 - 99 years;
(3) a crime defined in this title as a class A
felony shall be punished as an unclassified felony in the
manner provided for unclassified felonies in AS 12.55.125;
(4) a crime defined in this title as a class B
felony shall be punished as a class A felony in the manner
provided for class A felonies in AS 12.55.125;
(5) a crime defined in this title as a class C
felony shall be punished as a class B felony in the manner
provided for class B felonies in AS 12.55.125;
(6) a crime defined in this title as a class A
misdemeanor shall be punished as a class C felony in the
manner provided for class C felonies in AS 12.55.125;
(7) a crime defined in this title as a class B
misdemeanor shall be punished as a class A misdemeanor in
the manner provided for class A misdemeanors in
AS 12.55.135.
(b) The penalties in (a) of this section do not apply
to acts committed
(1) during a legal abortion to which the
pregnant woman, or a person authorized by law to act on the
pregnant woman's behalf, consented;
(2) during any medical treatment of the pregnant
woman or the fetus; or
(3) by a pregnant woman against herself.
(c) In this section,
(1) "miscarriage" means the interruption of the
normal development of the fetus, other than by a live birth
or by an induced abortion, resulting in the complete
expulsion or extraction of the fetus from a pregnant woman;
(2) "stillbirth" means the death of a fetus
before the complete expulsion or extraction from a woman,
other than by an induced abortion, irrespective of the
duration of the pregnancy.
* Sec. 2. AS 12.55.125(a) is amended to read:
(a) A defendant convicted of murder in the first
degree shall be sentenced to a definite term of
imprisonment of at least 20 years but not more than 99
years. A defendant convicted of murder in the first degree
enhanced under AS 11.32.100(a)(1) shall be sentenced to a
definite term of imprisonment of at least 30 years but not
more than 99 years. A defendant convicted of murder in the
first degree shall be sentenced to a mandatory term of
imprisonment of 99 years when
(1) the defendant is convicted of the murder of
a uniformed or otherwise clearly identified peace officer,
fire fighter, or correctional employee who was engaged in
the performance of official duties at the time of the
murder;
(2) the defendant has been previously convicted
of
(A) murder in the first degree under
AS 11.41.100 or former AS 11.15.010 or 11.15.020;
(B) murder in the second degree under
AS 11.41.110 or former AS 11.15.030; or
(C) homicide under the laws of another
jurisdiction when the offense of which the defendant
was convicted contains elements similar to first
degree murder under AS 11.41.100 or second degree
murder under AS 11.41.110;
(3) the court finds by clear and convincing
evidence that the defendant subjected the murder victim to
substantial physical torture; or
(4) the defendant is convicted of the murder of
and personally caused the death of a person, other than a
participant, during a robbery.
* Sec. 3. AS 12.55.125(b) is amended to read:
(b) A defendant convicted of attempted murder in the
first degree, solicitation to commit murder in the first
degree, conspiracy to commit murder in the first degree,
kidnapping, or misconduct involving a controlled substance
in the first degree shall be sentenced to a definite term
of imprisonment of at least five years but not more than 99
years. A defendant convicted of murder in the second degree
or a class A felony enhanced under AS 11.32.100(a)(3) shall
be sentenced to a definite term of imprisonment of at least
10 years but not more than 99 years. A defendant convicted
of murder in the second degree shall be sentenced to a
definite term of imprisonment of at least 20 years but not
more than 99 years when the sentence is enhanced under
AS 11.32.100(a)(2) or when the defendant is convicted of
the murder of a child under 16 years of age and the court
finds by clear and convincing evidence that the defendant
(1) was a natural parent, a stepparent, an adopted parent,
a legal guardian, or a person occupying a position of
authority in relation to the child; or (2) caused the death
of the child by committing a crime against a person under
AS 11.41.200 - 11.41.530. In this subsection, "legal
guardian" and "position of authority" have the meanings
given in AS 11.41.470.
* Sec. 4. The uncodified law of the State of Alaska is
amended by adding a new section to read:
APPLICABILITY. AS 11.32.100, enacted by sec. 1 of this
Act, and AS 12.55.125(a) and (b), as amended by secs. 2 and 3 of
this Act, apply to crimes committed on or after the effective
date of this Act."
CHAIR SEEKINS objected for the purpose of discussion.
SENATOR FRENCH explained his amendment severely penalizes people
who hurt women who they knew or should have known were pregnant.
The approach of the amendment makes it an enhanced penalty to
commit a crime against a pregnant woman.
9:28:56 AM
CHAIR SEEKINS noted the amendment looks more like a competing
bill. He said he had never seen an amendment that struck the
whole bill and inserted a new one.
SENATOR DYSON claimed the proposed amendment strips out a key
provision, which establishes a new victim, the wanted unborn
child. He expressed unwillingness to give up establishing a new
category of victims.
9:31:29 AM
Roll call proved the amendment failed 3-2 with Senators Huggins,
Therriault and Chair Seekins dissenting.
SENATOR GUESS asked Senator Dyson to affirm SB 20 would not seek
to prosecute women who are victims of domestic violence.
SENATOR DYSON affirmed.
SENATOR HUGGINS moved CSSB 20(JUD) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
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