Legislature(2007 - 2008)BELTZ 211

05/04/2007 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 19 LTD. DRIVER'S LICENSES/IGNITION INTERLOCK
Moved SCS CSHB 19(JUD) Out of Committee
= SB 145 MUNIS IMPOUND/FORFEIT MOTOR VEHICLE
Moved SB 145 Out of Committee
= SB 18 PROPERTY FORECLOSURES AND EXECUTIONS
Heard & Held
= SB 157 TRAFFICKING/PROSTITUTION/SEXUAL ABUSE
Heard & Held
          SB 157-TRAFFICKING/PROSTITUTION/SEXUAL ABUSE                                                                      
                                                                                                                              
2:09:12 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 157 and asked for                                                               
a motion to adopt Version \L committee substitute.                                                                              
                                                                                                                                
2:09:20 PM                                                                                                                    
SENATOR THERRIAULT motioned  to adopt CS for SB  157, Version \L,                                                               
labeled  25-LS0759\L,   as  the   working  document   before  the                                                               
committee. There being no objection, it was so ordered.                                                                         
                                                                                                                                
SENATOR  DYSON,  Sponsor of  SB  157,  relayed that  a  federally                                                               
funded  task  force  composed  of  the  Troopers,  the  FBI,  the                                                               
Anchorage  Police  Department,  and   others  looked  into  human                                                               
trafficking  in  Alaska.  SB  157  represents  the  task  force's                                                               
recommended  changes to  the Alaska  statutes  to facilitate  the                                                               
prosecution  of people  who traffic  and  prostitute children  in                                                               
particular.  He  noted that  the  current  version addresses  the                                                               
criminal code.                                                                                                                  
                                                                                                                                
2:10:32 PM                                                                                                                    
Section 1 expands the definition  of the crime of prostitution to                                                               
include the  buyer making it  equally criminal for both  sides of                                                               
the prostitution transaction.                                                                                                   
                                                                                                                                
Sections  2 and  3  raise the  age of  consent.  The law  against                                                               
promotion  of  prostitution in  the  first  degree would  include                                                               
prostitution  of  persons  between  16   and  18  years  of  age.                                                               
Previously it was 16 years of age.                                                                                              
                                                                                                                                
2:11:30 PM                                                                                                                    
Section 4  raises the  penalty for  promotion of  prostitution in                                                               
the first degree from a class B felony to a class A felony.                                                                     
                                                                                                                                
Section 5 raises  the penalty for promotion of  prostitution of a                                                               
child from a class A felony to an unclassified felony.                                                                          
                                                                                                                                
Section 6 raises  promotion of prostitution in  the second degree                                                               
from a class C felony to a class B felony.                                                                                      
                                                                                                                                
SENATOR  DYSON elaborated  that  police  officers have  expressed                                                               
concern that  prosecutors don't take misdemeanor  and lower class                                                               
prostitution seriously.  The feeling  is that  it would  be taken                                                               
seriously if the crimes were  felonies. "The Department of Law is                                                               
apparently comfortable with  bumping these all up  one notch," he                                                               
stated.                                                                                                                         
                                                                                                                                
Section 7 deals  with running a house of  prostitution. It raises                                                               
the penalty for  promoting prostitution in the  third degree from                                                               
a  class A  misdemeanor to  a class  C felony.  Also it  includes                                                               
prostitution  of  persons  between  16   and  18  years  of  age.                                                               
Previously the age was 16.                                                                                                      
                                                                                                                                
SENATOR DYSON explained that the  drafter, Mr. Luckhaupt, added a                                                               
new  fourth degree  prostitution. It's  to catch  someone who  is                                                               
promoting prostitution that isn't at a  class B or class C felony                                                               
level. He understands  it will help to prosecute  people who know                                                               
about and  may facilitate prostitution  even though they  may not                                                               
be getting a  fee for their service. He noted  that the Anchorage                                                               
police are  saying that hotels are  turning a blind eye  and this                                                               
may get at that.                                                                                                                
                                                                                                                                
2:14:27 PM                                                                                                                    
CHAIR FRENCH  asked the  Department of  Law someone  who delivers                                                               
pizza,  sweeps a  driveway,  plows snow,  or  hooks up  telephone                                                               
service in  a place of  prostitution would be guilty  of engaging                                                               
in conduct that institutes, aids, or facilitates prostitution.                                                                  
                                                                                                                                
2:14:42 PM                                                                                                                    
RICK  SVOBODNY,  Deputy   Attorney  General,  Criminal  Division,                                                               
Department  of Law,  said  it depends.  Literally  if someone  is                                                               
aiding in the commission of  the offense by sweeping the driveway                                                               
so that patrons  have access, then the answer is  yes. If someone                                                               
is delivering  pizza with the  intention of aiding  in commission                                                               
of the offense by providing food  for what's going on, the answer                                                               
is also yes.  A bellhop who facilitates a  hotel patron's request                                                               
for a  prostitute is  guilty of  promoting prostitution  now, but                                                               
this language may capture certain  stances that he's not thinking                                                               
about.                                                                                                                          
                                                                                                                                
CHAIR FRENCH  asked if  the mental element  with respect  to this                                                               
provision would be "knowing."                                                                                                   
                                                                                                                                
MR. SVOBODNY said  he doesn't know but typically  when someone is                                                               
charged with  aiding or abetting  an offense the  culpable mental                                                               
state is higher.  There must be intent that  the underlying crime                                                               
occur. For instance, it would not be  a crime for him to agree to                                                               
lend a  gun to someone,  but if he intended  to help in  an armed                                                               
robbery  then he  would have  to  have a  higher culpable  mental                                                               
state.  "Sometimes you  have  to have  a  higher culpable  mental                                                               
state  than the  perpetrator." That  language is  built into  the                                                               
regular  culpability  statute,  but  it  isn't  built  into  this                                                               
statute so it may well be that it's knowingly, he stated.                                                                       
                                                                                                                                
MR. SVOBODNY  summarized that  the statutory  construction answer                                                               
is yes --it knowingly.                                                                                                          
                                                                                                                                
CHAIR FRENCH said the mental  element probably doesn't need to be                                                               
inserted here.  If it's  knowingly or higher  then you'd  have to                                                               
prove that  the person who's  sweeping the driveway is  not doing                                                               
it because  he's earning $5 and  that's how he makes  his living.                                                               
You'd have  to prove that  he's sweeping the driveway  because he                                                               
knows  there's an  event that  night  and he's  making sure  that                                                               
business can be conducted inside the house of prostitution.                                                                     
                                                                                                                                
MR.  SVOBODNEY  said  if  the particular  words  aren't  used  in                                                               
statute it's knowingly.                                                                                                         
                                                                                                                                
2:18:36 PM                                                                                                                    
CHAIR FRENCH expressed the view that  the statute is fine the way                                                               
it is.                                                                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI asked  for  clarification  that by  default                                                               
it'd be knowingly.                                                                                                              
                                                                                                                                
MR. SVOBODNY said yes.                                                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if  the person  who's shoveling  the                                                               
driveway has, under  this statute, committed the  crime of aiding                                                               
prostitution  if he/she  knows  that the  owner  of the  facility                                                               
intends to have prostitutes there.                                                                                              
                                                                                                                                
MR. SVOBODNY  said he doesn't  really know because it  would have                                                               
to be proved  that the sweeper knew that he/she  was clearing the                                                               
driveway so that patrons of the prostitutes could go there.                                                                     
                                                                                                                                
CHAIR FRENCH asked if it's fair  to say that you would be looking                                                               
for business  partners, business  associates, and others  who are                                                               
intimately  connected  to  the  operation in  order  to  bring  a                                                               
prosecution.                                                                                                                    
                                                                                                                                
MR. SVOBODNY said yes; it will  always be the case that the court                                                               
will say that  the mere presence at  the scene of a  crime is not                                                               
sufficient to be  guilty of a crime. There would  have to be some                                                               
other mental state before the person is guilty of a crime.                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI asked if a  motel clerk would have committed                                                               
a violation  under this statute  if he/she were to  allow someone                                                               
to check  in if they were  accompanied by someone who  could be a                                                               
prostitute.                                                                                                                     
                                                                                                                                
MR. SVOBODNY  it would be necessary  to show that the  clerk knew                                                               
that the person was a prostitute.                                                                                               
                                                                                                                                
SENATOR DYSON interjected  that if the clerk is  renting the room                                                               
by the  hour and  the same  girl is  seen three  or four  times a                                                               
night it's a good case.                                                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI  asked if that's an  objective or subjective                                                               
standard.                                                                                                                       
                                                                                                                                
CHAIR FRENCH opined that it's the reasonable person standard.                                                                   
                                                                                                                                
MR. SVOBODNY said  the jury will make a  determination of whether                                                               
there was a substantial probability  that the event existed--that                                                               
the act of prostitution was or would be occurring.                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI said that's the objective standard.                                                                        
                                                                                                                                
MR. SVOBODNY countered that it's  the reasonable person standard.                                                               
A jury would ask if that's what a reasonable person would know.                                                                 
                                                                                                                                
2:21:47 PM                                                                                                                    
CHAIR FRENCH asked Senator Dyson to continue with Section 9.                                                                    
                                                                                                                                
SENATOR DYSON continued.                                                                                                        
                                                                                                                                
Section  9  clarifies  that  property  that is  used  to  aid  or                                                               
facilitate the promotion of prostitution can be seized.                                                                         
                                                                                                                                
Section 10  inserts promoting prostitution  of children  into the                                                               
sentencing code.                                                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI referenced Section  9 and commented that the                                                               
provision that  the "property shall be  forfeited" seems extreme.                                                               
He  noted that  the Hotel  Captain Cook  for example  is probably                                                               
valued at several hundred million dollars.                                                                                      
                                                                                                                                
CHAIR FRENCH asked  Mr. Svobodny if the Hotel  Captain Cook could                                                               
be at stake here.                                                                                                               
                                                                                                                                
2:23:06 PM                                                                                                                    
MR.  SVOBODNY explained  that there's  been a  big discussion  in                                                               
alcohol forfeiture  where Alaska  Airlines claimed that  it would                                                               
have a plane seized  if an agent put alcohol on  a plane that was                                                               
going to a  dry community. In that case language  was included so                                                               
that would not  be the case. He  said he didn't know  if there is                                                               
special language or  if it was just a conclusion  that there must                                                               
be a nexus. The person  owning the property generally wouldn't be                                                               
subject  to having  the  property forfeited  unless  there was  a                                                               
certain culpable mental state. Under  Senator Dyson's example, if                                                               
the Hotel Captain  Cook is renting rooms by the  hour it may well                                                               
be subject to  seizure, but if it's simply a  clerk who is acting                                                               
beyond the  scope of his/her duties  then the hotel would  not be                                                               
subject to forfeiture.                                                                                                          
                                                                                                                                
2:24:43 PM                                                                                                                    
CHAIR  FRENCH advised  that  he  would flag  that  area for  more                                                               
attention.                                                                                                                      
                                                                                                                                
2:24:51 PM                                                                                                                    
SENATOR  DYSON  added that  the  target  is  the people  who  are                                                               
running a house  of prostitution in their camper  and the taxicab                                                               
drivers  who   are  regularly   facilitating  this   business  by                                                               
transporting Johns  and or by  providing a cell phone  and saying                                                               
"here's a lady that would love to do business with you."                                                                        
                                                                                                                                
Section 11  deals with fines.  He understands that for  the first                                                               
time this  makes it possible  to impose fines  as well as  a jail                                                               
sentence for this crime.                                                                                                        
                                                                                                                                
Section 12  inserts promoting prostitution  in the  first degree.                                                               
Consistently  now the  penalty for  prostituting a  child is  the                                                               
same as having molested or raped that child, he stated.                                                                         
                                                                                                                                
SENATOR DYSON  noted that Child Protective  Services and Juvenile                                                               
Justice asked him to continue to  work on the section that allows                                                               
the state  to take protective  custody without arresting  a child                                                               
who had been prostituted. He said  he agreed to pull that section                                                               
for continued work.                                                                                                             
                                                                                                                                
2:27:02 PM                                                                                                                    
CHAIR FRENCH commented that he  saw suggested language on that in                                                               
a  bill  by Representative  Doogan.  He  asked if  they'd  worked                                                               
together.                                                                                                                       
                                                                                                                                
SENATOR  DYSON  said he'd  worked  with  Representative Doogan  a                                                               
little.                                                                                                                         
                                                                                                                                
CHAIR FRENCH found no further testimony on SB 157.                                                                              
                                                                                                                                
SENATOR  DYSON  said  he was  asked  not  to  line  up a  lot  of                                                               
testimony, but he could do so if the committee required it.                                                                     
                                                                                                                                
SENATOR  WIELECHOWSKI asked  how  this compares  with what  other                                                               
states are doing.                                                                                                               
                                                                                                                                
2:28:03 PM                                                                                                                    
SENATOR  DYSON  said  he  didn't  know,  but  he  could  get  the                                                               
information.                                                                                                                    
                                                                                                                                
CHAIR FRENCH  suggested he contact Senator  Wielechowski directly                                                               
and announced he would hold SB 157 in committee.                                                                                

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