Legislature(2009 - 2010)BELTZ 105 (TSBldg)
03/08/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB209 | |
| SB260 | |
| HB6|| SB214 | |
| SB202 | |
| SB284 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 209 | TELECONFERENCED | |
| += | SB 260 | TELECONFERENCED | |
| *+ | SB 202 | TELECONFERENCED | |
| + | SB 284 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 214 | ||
| = | HB 6 | ||
SB 202-HATE CRIMES
2:21:11 PM
CHAIR FRENCH announced the consideration of SB 202.
SENATOR BETTYE DAVIS, sponsor of SB 202, said she's not the
first to introduce a bill about hate crimes, but she hopes to be
the last.
2:22:45 PM
THOMAS OBERMEYER, Staff to Senator Davis, read the following
sponsor statement into the record:
SB 202 makes any crime against a person a more serious
or aggravated crime if it is motivated by race, sex,
color, creed, physical or mental disability, sexual
orientation, ancestry, or national origin. Such crimes
are referred to as "Hate Crimes." Hate crimes are
inchoate offenses which are crimes of preparing for or
seeking to commit another crime. Absent a specific
law, an inchoate offense requires that the defendant
have the specific intent to commit the underlying
crime. For example, for a defendant to be guilty of
the crime of assault in the third degree, the
defendant must place another person in fear of
imminent serious physical injury or intentionally or
recklessly cause serious injury to another person by
means of a dangerous instrument. If this crime was
motivated by hatred, bias, or prejudice, under SB 202
it merges into a more serious hate crime and is
punished at a higher level than normally would be
afforded the underlying offense.
Without creating a new list of "hate crimes" under AS
11.76, new Sec. 11.76.150 simply reclassifies the
level of any crime up one notch if motivated by
prejudice, bias, or hatred. For example, a class B
misdemeanor becomes a class A misdemeanor; a class A
misdemeanor becomes a C felony; a class C felony
becomes a B felony, etc. Such reclassification, of
course, increases the penalties appropriate to the
classification in sentencing under AS 12.55.
The need for SB 202 is apparent as incidences of
prejudice and crimes against persons regularly
continue to occur in Alaska and across the country in
our increasingly diverse society. While SB 202 alone
cannot eliminate prejudice, bias, or hatred, it will
send a message that Alaskans will not tolerate hate
crimes in any form, the consequences of which are very
severe. When crimes are committed because of our
differences, the effects reverberate beyond a single
person or group into an entire community, city, state,
and society as a whole.
2:25:10 PM
MR. OBERMEYER pointed out that the bill is targeted at
increasing the punishments. He noted that the drafter was
available to explain his position as to the concerns raised by
the ACLU regarding rights of association, gender identity, and
mandatory minimum sentencing.
CHAIR FRENCH asked if the bill is modeled after other hate crime
legislation.
MR. OBERMEYER replied the bill uses different language than the
federal Mathew Shepherd legislation. It doesn't include the term
"gender identity," which may be part of the impetus for the ACLU
giving the language in this bill particular scrutiny. Current
Alaska statutes and the Alaska Constitution use the words "sex,
color, and creed" and there was concern that using language that
is different than that might have unintended consequences.
SENATOR WIELECHOWSKI asked if a person could be prosecuted under
both state and federal law if this bill were to pass.
MR. OBERMEYER replied his experience is that state law can do
more but not less than federal law.
CHAIR FRENCH added that it's not double jeopardy if you're
prosecuted by the federal government or the state, even for the
same act.
2:28:15 PM
J. KATE BURKHART, Executive Director, Alaska Mental Health Board
(AMHB), explained that AMHB was established in statute to serve
in an advisory role for Alaskans who are affected by mental
illness. She said she is speaking only for the board members and
in favor of SB 202, particularly the provisions that protect
people with physical and mental disabilities. Available research
indicates that people with serious mental illness are at great
risk of victimization whether it's violent crime upon their
person or their property. A 2005 study from Northwestern
University found they were 11 times more likely to be the victim
of violent crime.
While SB 202 targets those crimes committed because of the
victim's disability and not all crimes inflicted on people with
disabilities, it goes a long way to help protect the most
vulnerable members of the community. It sends a message that
crimes committed against people because of their disability are
unacceptable and it changes policy by heightening the penalty
for these crimes.
2:31:31 PM
MARSHA BUCK, Board of Directors, Alaskans Together for Equality,
Inc., said this is a statewide advocacy organization that was
formed to advance civil equality for Alaska's gay, lesbian,
bisexual, and transgendered citizens. She related that she
serves on the board as a proud mother and grandmother. Her
oldest daughter is in a lifelong relationship with another woman
and that relationship has given her two grandchildren. She is
testifying because she cares deeply about the personal safety of
her daughter, her daughter-in-law, and her grandchildren.
MS. BUCK said Alaskans Together for Equality supports SB 202 and
its coverage of crimes motivated by prejudice, bias, and hatred
based on inherent characteristics with which people are born,
like sexual orientation. She said they recognize that hate
crimes aren't limited to the gay and lesbian population. Rather,
they occur throughout the minority community. The bill
emphasizes that Alaska has no tolerance for these acts.
MS. BUCK stated that Alaskans Together for Equality supports SB
202 conditioned on an amendment to include "gender identity and
expression" in Sec. 11.76.150(a). Some people may see others as
"too masculine" or "too feminine" and that perception may evoke
a violent response that results in harm. It doesn't matter that
the person who is perceived as different is heterosexual or gay
to be a recipient of such a response. We contend that many
Alaskans are in jeopardy of gender expression hate crimes, she
said. In particular, youths are often subject to bullying based
on expression that is different from the fluctuating norm. The
term "gender identity" also includes those who are transgender,
she said.
2:35:20 PM
KELLI BURKINSHAW, representing herself and Alaskans Together for
Equality, Inc., stated support for SB 202, which is designed
protect the civil rights of individuals who may be targeted for
violence or harassment based on who they inherently are due to
their race or sexual orientation or membership in a group. She
said she appreciates that the bill emphasizes that Alaska has no
tolerance for hate crimes, but it leaves out transgender
individuals. "It is essential that gender identity be included
in this bill," she said. She offered to provide definitions.
2:36:43 PM
SENATOR MCGUIRE said it would be helpful to get the definitions.
MS. BURKINSHAW explained that "sexual orientation" is the
personal and unique way a person perceives his or her sexual
desires and expression toward others. It ranges from one of the
opposite biological sex and runs along a continuum to someone of
the same biological sex. "Gender" is the concept of femininity
and masculinity. "Gender identity" is the sense of oneself as a
male or a female or anywhere along or outside that continuum.
"Sex" refers to biological characteristics a person has at birth
so a transgender person is one who identifies their gender
perhaps differently than their sex at birth. This bill will
protect me as a lesbian and for that I'm happy; but the most
painful wounds I carry are based on my gender perception, which
is that I was perceived as too masculine as a child, she said.
Those wounds last a long time.
"Gender identity is very important and I'm very saddened to know
that close to 40 percent - and estimates up to 60 percent - of
my transgender brothers and sisters in community have
experienced violent reactions. I know what that feels like and I
would strongly urge you to include gender identity," she
concluded.
2:40:08 PM
JEFF JESSEE, CEO, Alaska Mental Health Trust Authority (AMHTA),
said his testimony is focused on the parts of SB 202 that
address hate crimes based on physical or mental disability. He
related that many AMHTA beneficiaries are singled out for
physical attacks resulting in harm and sometimes death. Clearly,
these crimes are damaging to people. He told the committee that
he was born with a cleft palate and because of that he was
bullied and mocked and physically abused throughout his
elementary school years. These bullies grow up and commit hate
crimes and this is a time when society needs to stand up and say
hurting people based upon their differences will be an
additional penalty. "Both personally and on behalf of the Trust,
I urge you to pass this legislation," he said.
DAVID EASTMAN, representing himself, said that for the past six
years he has served as a military police officer in Alaska and
based on that experience he opposes SB 202. The motives for
crime are bad, but the government doesn't need to insert itself;
it isn't very effective when it tries to legislate morality.
This bill attempts to make some people more equal than others
and further politicizes our lives, he said.
2:46:41 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration, said his comments will focus on
practical drafting concerns. The first relates to the use of the
phrase "knowingly directed" because use of the word "knowingly"
is theoretically inconsistent with the mens rea scheme. You can
knowingly have a motive and criminalize that. It's really more
along the lines of specific intent but it's hard to distinguish
because the concepts differ, he said. The knowing part of the
conduct would be the crime itself and motive is more in line
with specific intent. By using the word knowingly you'd be
confusing the issues and it could be confused as downgrading
something you can't theoretically downgrade to a lower mens rea.
A second concern relates to proof. Typically, motive is not a
crime and by criminalizing motive, it broadens the proof of a
criminal case beyond the act to the person. That creates a
significant problem in conducting the trial. Essentially it puts
the person's comments and speech and other things they've done
throughout their life on trial as a way of proving a specific
act. And it could go beyond the act itself and the comments that
were made during the act. Together it creates a much broader
trial than it usually is in criminal cases.
2:49:41 PM
CHAIR FRENCH asked Mr. Steiner to send his specific drafting
suggestions to his office.
SENATOR COGHILL mentioned the relatively new aggravator in AS
12.55.155(c)(22) and said he'd be interested in knowing how
often it's been applied because it seems that the same questions
would apply. The language isn't exactly the same but the
personal motive is more at issue than the act under that
aggravator.
CHAIR FRENCH asked Ms. Carpeneti to respond to that question at
a future hearing.
2:51:12 PM
JEFFERY MITTMAN, Executive Director, ACLU of Alaska, said the
ACLU of Alaska thinks it's important for the State of Alaska to
go on record stating that all its citizens should be protected
from targeted acts of hatred and violence. He emphasized the
importance of adding the phrase "gender identity" to the bill
because there is statistical evidence that individuals are
targeted for their race, gender, religion, sexual orientation
and gender identity. Individuals are attacked for being
different and it's important for them to understand that they
are protected.
At the same time, there are protected associational and free
speech rights that must be recognized. A person can be punished
for the act of attacking a transgender or gay person, but they
should not be prosecuted based on their association, their
membership, or their past statements. A person has the right to
hold their beliefs and they shouldn't be punished for them.
Based on that, the ACLU asks that language be added to the bill
that specifically states that at trial evidence should be
introduced that directly relates to the crime, but not merely as
associational or First Amendment rights.
2:53:32 PM
CHAIR FRENCH closed public testimony and announced he would hold
SB 202 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB284 Sponsor Statement.doc |
SJUD 3/8/2010 1:30:00 PM |
SB 284 |
| Sectional Analysis SB 284.PDF |
SJUD 3/8/2010 1:30:00 PM |
SB 284 |
| SB202 Sponsor Statement.pdf |
SJUD 3/8/2010 1:30:00 PM |
SB 202 |