Legislature(2005 - 2006)BUTROVICH 205
01/24/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB218 | |
| SB200 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 200 | TELECONFERENCED | |
| += | SB 218 | TELECONFERENCED | |
| += | SB 10 | TELECONFERENCED | |
SB 218-CRIMINAL SENTENCING AND POLYGRAPHS
8:40:16 AM
CHAIR RALPH SEEKINS announced SB 218 to be up for consideration.
The committee was hearing version I.
SENATOR CON BUNDE, bill sponsor, informed the committee that
Alaska has the highest per capita rate of sexual assault and
sexual abuse of minors. Rehabilitation has proven unlikely so
longer sentences seem necessary in order to protect society. The
polygraph requirement has worked well in other states in getting
offenders to abide by their parole agreements. This is not an
inexpensive answer but the current cost to society merits the
measure.
8:42:38 AM
SENATOR GRETCHEN GUESS moved Amendment 1.
24-LS1307\I.2
Luckhaupt
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 218( ), Draft Version "I"
Page 7, line 18:
Delete "Act"
Insert "section"
Page 7, line 19:
Delete the second occurrence of "Act"
Insert "section"
Page 7, line 20:
Delete all material and insert:
"* Sec. 9. Sections 2 and 7 of this Act take effect July 1,
2007.
* Sec. 10. Except as provided in sec. 9 of this Act, this Act
takes effect immediately under AS 01.10.070(c)."
SENATOR GUESS explained at the request of the Department of
Corrections (DOC) the polygraph portion of the bill would take
effect in 2007. Everything else would take immediate effect.
Hearing no objections, Amendment 1 was adopted.
8:44:19 AM
SENATOR GUESS moved Amendment 2.
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Luckhaupt
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 218( ), Draft Version "I"
Page 1, line 3:
Delete the first occurrence of "and"
Insert "; relating to sexual abuse of a minor; relating"
Page 1, following line 5:
Insert a new bill section to read:
"* Section 1. AS 11.41.436(a) is amended to read:
(a) An offender commits the crime of sexual abuse of
a minor in the second degree if,
(1) being 16 years of age or older, the offender
engages in sexual penetration with a person who is 13, 14,
or 15 years of age and at least three years younger than
the offender, or aids, induces, causes, or encourages a
person who is 13, 14, or 15 years of age and at least three
years younger than the offender to engage in sexual
penetration with another person;
(2) being 16 years of age or older, the offender
engages in sexual contact with a person who is under 13
years of age or aids, induces, causes, or encourages a
person under 13 years of age to engage in sexual contact
with another person;
(3) being 18 years of age or older, the offender
engages in sexual contact with a person who is under 18
years of age, and the offender is the victim's natural
parent, stepparent, adopted parent, or legal guardian;
(4) being 16 years of age or older, the offender
aids, induces, causes, or encourages a person who is under
16 years of age to engage in conduct described in
AS 11.41.455(a)(2) - (6); [OR]
(5) being 18 years of age or older, the offender
engages in sexual contact with a person who is under 16
years of age, and
(A) the victim at the time of the offense
is residing in the same household as the offender and
the offender has authority over the victim; or
(B) the offender occupies a position of
authority in relation to the victim;
(6) being 18 years of age or older, the offender
engages in sexual penetration with a person who is 16 or 17
years of age and at least three years younger than the
offender, and the offender occupies a position of authority
in relation to the victim; or
(7) being under 16 years of age, the offender
engages in sexual penetration with a person who is under 13
years of age and at least three years younger than the
offender."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 7, following line 14:
Insert a new bill section to read:
"* Sec. 9. AS 11.41.438(a)(2) and 11.41.438(a)(3) are
repealed."
Renumber the following bill sections accordingly.
Page 7, line 17:
Delete "Sections 3 - 6"
Insert "Sections 1, 2, 4 - 7, and 9"
Page 7, line 18:
Delete "secs. 3 and 5"
Insert "secs. 4 and 6"
SENATOR GUESS explained the amendment would take sexual abuse of
a minor in the third degree and move it up to the second degree.
The purpose is to put any crime that is either actual sexual
penetration or attempt at sexual penetration of a minor into the
felony category.
SENATOR BUNDE added there is a distinction between controlling
an impulse and the more egregious act where penetration is
involved.
8:46:09 AM
SENATOR HOLLIS FRENCH clarified the committee was moving what is
currently a C felony to a B felony level of conduct.
SENATOR GUESS said yes.
SENATOR FRENCH cited a case wherein an Anchorage teacher was
found guilty of having sex with his students and law enforcement
discovered at the time there was no crime against it. Lawmakers
quickly passed a bill to make it against the law. The age of
consent in the State of Alaska is 16 years of age but a person
in a position of authority should not abuse that authority over
a 16-year-old girl. He urged the committee to be mindful that
conduct such as that would now become a class B felony
punishable by 10 to 15 years in prison.
8:48:41 AM
SENATOR GUESS responded she does not care. She said it is a
policy call for the Senate Judiciary Standing Committee. The
issue is what Alaskans value in their society. A person with a
position of authority causing direct influence over a 16-year-
old child is a crime because they would be using that position
to get in bed with a young girl. She maintained that it is
different when there is a position of authority involved,
causing it to be a very serious crime.
8:50:23 AM
SENATOR BUNDE commented the mental duress that a person could
impose on a child is stronger than physical force. A person in a
position of authority should be held to a higher standard.
CHAIR SEEKINS asked whether SB 218 would change the age
differential of current statute.
SENATOR BUNDE said no. The three-year age differential remains
due to the consensual situation and then the parent becomes
involved.
SENATOR FRENCH said:
There have been cases where a terrible crime has been
committed with an abuse of authority and the offender
needs to go to prison for a long time. That is why a
wide range of possible sentences is in the hands of a
judge who can represent the community and impose a
serious sentence but there are always those gut-
wrenching cases that are near the line with a girl who
is 17 years and 11 months old, maybe out of high
school, who has made a bad decision and a coach or a
counselor or a university professor has had sex with
that person and it is a bad thing and no one should do
it and that person should be a sexual felon, is and
would be a sexual felon under current law. But I think
there will be troubling cases where you might step
back and say, "Ten years in prison is a frightfully
long time." I'm just pausing a little bit before we
take this serious step so that we have an opportunity
to think about the tough cases that come down near the
line.
SENATOR BUNDE admitted that was an excellent point. He said he
had an anecdotal conversation with someone who found himself in
the position with the age difference clause and when the
relationship ended, the man had to register as a sex offender,
when in his mind, he was participating in a willing situation.
He said there is the option of pleading down for a lesser
sentence.
8:55:10 AM
CHAIR SEEKINS said on the other hand, it might lead a person of
authority to use more discretion. He bet that every person in
authority in the school system would be adequately warned.
8:55:41 AM
CHAIR SEEKINS announced with no objection, Amendment 2 was
adopted.
8:56:42 AM
SENATOR FRENCH said there was one aspect of the bill that was
not discussed last time the bill was heard and he wanted to ask
the sponsor about it. He asked about the new crime of "failure
to report a sex offender or child kidnapper" and wanted to put
the intent on the record.
8:57:28 AM
SENATOR BUNDE responded too many people have an awareness of a
situation of abuse and either turn a blind eye or willfully do
not report it when, in doing so could have prevented the abuse
from occurring. He asked for someone from the Department of Law
to address the issue.
SENATOR GUESS added the provision came out of the Jessica
Lundford case in Florida. The sister to the perpetrator knew
that he was a sex offender, knew he wasn't registered, and did
nothing about it, which wasn't a crime at the time. Florida has
model legislation for what they did to rectify that. That is
where the language comes from.
SENATOR FRENCH asked whether Florida made it a felony offense.
SENATOR GUESS said yes.
SENATOR FRENCH referred to the polygraph section of SB 218. He
said he supports it but is curious to hear from the Department
of Corrections the number of parolees they anticipate putting
under the test.
CHAIR SEEKINS asked for a representative from the Department of
Corrections to speak.
MS. PORTIA PARKER, Deputy Commissioner, Department of
Corrections (DOC), informed the committee the department is
currently pulling the information and looking at a 5-year
window. She estimated there to be approximately 780 sex
offenders currently under supervision on parole or probation.
Most of them are receiving treatment or on a wait list. If they
live in a community where treatment is not available, that
requirement is often lifted.
9:02:35 AM
MS PARKER clarified there are between 700-780. Each year the
number will be between 120-180 new ones.
SENATOR FRENCH understood that the DOC would be able to add the
polygraph as a condition of parole in the future but would have
to wait for a new conviction to make it a condition of
probation.
MS PARKER said yes. After July 1, 2007 every convicted sex
offender that has a condition of probation assigned will be
required to submit to periodic polygraph exams, as well as those
on parole. Parole conditions happen directly prior to release
and so the polygraph requirement can be set immediately so the
parole condition will happen a lot faster than the probation
condition.
SENATOR FRENCH asked Ms. Parker whether she anticipated adding
that as a new parole condition on the people who were already
out and under supervision.
MS PARKER said no. However, if they are brought in under the
condition of having their parole revoked, the department will
work to add that condition.
9:05:05 AM
CHAIR SEEKINS closed public testimony and asked for discussion
among committee members.
SENATOR FRENCH commented that although he supports the bill, he
has reservations about the some of the numbers.
One specific area is sex assault in the second degree.
It is generally classified as a "touching" crime, not
dealing with penetration. The bill would set the
penalty range at 10 to 15 years. The bill takes a
lesser offense of sexual assault in the third degree
and sets the range from three to 10 years and gives
the judge a wide range of options given the severity
of the case whereas in this bill the most mitigated,
the least serious, the least offensive touching case
will result in a sentence of 10 years. I'm not going
to throw amendments out today because I think the bill
is leaving committee and frankly I think it would take
a long time to figure out what the right number is,
but I just want to say that I have some reservations
about that severe penalty for the least serious
touching case. So I will be thinking that as the bill
moves through the process and perhaps there is some
way to fix that or I can find out that it actually has
to be there. I just wanted to put that on the record
before the bill left committee.
SENATOR BUNDE agreed with Senator French. As they look at the
numbers they need to determine the message they want to send to
society. Alaska has a terrible record to date and only one out
of ten sexual assault crimes are reported so that generally when
someone is convicted they have a huge background of victims. The
vast majority of people that will be convicted under SB 148
probably deserve the larger sentences. However, he acknowledged
it might be accidentally mis-applied at some point but that
applies to all Alaska laws and sentencing.
9:09:03 AM
CHAIR SEEKINS said the intent is to make the law tougher for
people who touch inappropriately but sexual offense charges can
easily become a social weapon. He expressed hope that the DOL
would successfully sort out the guilty from the innocent.
9:13:08 AM
SENATOR BUNDE asserted that confidence and faith in the jury
system must be upheld.
9:14:45 AM
SENATOR FRENCH said he had a question for the DOL regarding
sentencing of both murder in the second degree and attempted
murder.
The current penalty for murder in the second degree is
10-99 years and the current penalty for attempted
murder is 5-99 years. I just wanted to get something
on the record in the event of a future legal challenge
regarding the disparity of a "touching" case that gets
you 10 years and an attempted murder case that only
gets you five. I just wanted to have some legal
foundation, if you will, for that idea.
9:15:35 AM
MS. SUSAN PARKES, Deputy Attorney General, Criminal Division,
Department of Law (DOL), responded this subject was discussed at
the last hearing. Senator Guess indicated she was working on
some findings to be added to the bill. The DOL shares concerns
regarding the disparity. It is important for the Legislature to
explain the reason that a serious "touching" case would be as
serious as attempted murder.
SENATOR FRENCH responded that the challenge would be for an
explanation as to the reason that the least serious "touching"
case twice be viewed as harmful as the least serious attempted
murder case because there is a great disparity. It is a stark
contrast.
MS. PARKES said those kinds of cases will be where someone has
died and gets a lower sentence than a sex offense where it has
been a "touching" or attempted penetration.
9:18:02 AM
SENATOR BUNDE added someone who has had an attempt on their life
lives in fear and someone who has suffered a sexual abuse
attempt may also live in fear and have a psychological death. He
asserted that people who suffer from a sexual assault can be
inhibited and destroyed for the rest of their life.
9:18:27 AM
Senator Gene Therriault joined the meeting.
SENATOR GUESS clarified she would agree to disagree with Senator
French regarding severity. She said there are cases of sexual
assault of a minor in the second degree (SAM2) that are
penetration. It is not just contact. With contact there are
situations where the perpetrator is over 16 years of age and the
victim is under 13, or it's a position of authority situation
and the child is under 16. She disagreed with the
characterization of "it's the least."
For the record, "sexual contact" is "knowingly." There is a
standard and it does exempt acts that may be reasonably
construed to be normal caretaking and affection. It is a policy
call and a value statement. It is not just an impact to the
victim but also an impact to the community. There is a
reasonable argument that the Legislature can make that when it
comes to the impact on the community, and generations, and
public safety, especially with what is known about recidivism,
maybe the punishment is just.
CHAIR SEEKINS agreed with Senator French that defense attorneys
would challenge the law and that the courts will hear the
challenge.
9:22:19 AM
SENATOR FRENCH:
Within any statute, and SAM is a good example; SAM 2
has many different prongs. Within any one of those
violations, there will be a range of behavior that
would satisfy the statute under which a jury could
find you guilty. Just as an example, the presence or
absence of clothing. You can have a sexual contact
with or without clothing. And so the sexual contact
with clothing present and without it is something
else; both violate the same statute. But there is a
range of behavior that will make you guilty of the
crime. I am not saying it's not serious. It's very
serious. What I'm saying is that within any one of
those categories, you'll have behavior that is either
more serious or less serious. It still makes you
guilty of the crime. And so I'm concerned that the
least serious conduct, touching over clothing for
example, will get you a 10-year sentence and that will
be compared to the least serious attempted murder,
whatever least serious attempted murder conduct
satisfies that statute. Again they are both heinous
crimes. But what will happen is that someone will
compare that - sexual contact over clothing - with an
attempted murder case that doesn't look very serious
and say, "Why did that person get ten years versus why
did that other person get five?"
He said his last concern was the findings would not be reviewed
in the Senate Judiciary Standing Committee.
9:24:26 AM
CHAIR SEEKINS agreed Senator French had a legitimate concern.
9:24:50 AM
SENATOR THERRIAULT asked Ms. Parkes whether the judge could
impose the polygraph on a sex offender whose probation has been
revoked.
MS. PARKES said normally when probation has been revoked the
judge imposes additional time. She deferred the question to Mr.
Dean Guaneli.
9:26:25 AM
MR. DEAN GUANELI, Chief Assistant Attorney General, Criminal
Division, Department of Law (DOL), advised in the case of
probation revocation the court could establish new conditions,
which could include polygraph testing. It is an open question -
whether short of revocation - new conditions could be added. In
appropriate cases the DOL would have the probation officer ask
the judge to impose the new condition. The only thing the
Legislature can do is state the provision that the polygraph
condition could apply to offenses committed before SB 218 is
enacted.
9:28:25 AM
CHAIR SEEKINS affirmed the intent of the committee is that the
courts be able to impose the polygraph requirement anytime to
any case after the law becomes affective.
SENATOR THERRIAULT stated that was the intent of the bill.
However, he would like to pursue the polygraph testing for those
offenders who are currently out on probation.
MR. GUANELI advised that once a sentence is meaningfully imposed
on a person, that sentence cannot be increased. The legal
question would be whether imposing a polygraph requirement would
be in effect, an increase in the sentence. There is that
constitutional question but if the Legislature makes it clear
then the DOL could argue the question in the courts.
SENATOR BUNDE added the polygraph would be part of a treatment
program aimed at rehabilitation, not added punishment. In other
states, the compliance rate with probation limitations was
nearly 70 percent compared to 20 percent in states that have no
polygraph. It really shouldn't be considered additional
punishment.
9:33:02 AM
SENATOR GUESS moved to report CSSB 218(JUD) from committee with
individual recommendations and attached indeterminate fiscal
notes. Hearing no objections, the motion carried.
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