Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/07/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB72 | |
| SB62 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 62 | TELECONFERENCED | |
| *+ | SB 72 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 72-CRIMES INVOLVING MINORS/STALKING/INFO
1:36:47 PM
CHAIR HOLLIS FRENCH announced the consideration of SB 72.
1:37:02 PM
JOHN BURNS, Attorney General, Department of Law (DOL), stated
that SB 72 is aimed at the stalking and exploitation of minors.
Through the efforts of both the Governor and the Legislature,
Alaska is firmly focused on ending the epidemic of sexual
assault and domestic violence that has plagued communities for
far too long. The statistics bear repeating. Children in Alaska
are sexually abused at a rate that is 6 times higher than the
national average; and women in Alaska are raped at a rate that
is 2.5 times the national average. SB 72 builds on legislation
passed last year and proposes changes that will further protect
victims from exploitation and assault.
In addition to clarifying aspects of existing statutes, SB 72
expands the crime of stalking by amending the definition of
nonconsensual contact to include the use of global positional
devices and the installation and attempted installation of
devices to observe, record, or photograph events in the home,
workplace, or vehicle of a victim or on a victim's personal
telephone or computer. The amended definition reflects a reality
of technology and the uses for which it is applied. SB 72 also
makes it a crime to publish or distribute an explicit image of a
minor and makes it a crime to knowingly obtain confidential
information about another person without legal authority or
consent.
As proposed by the Governor, the objective of SB 72 is
consistent with efforts to eradicate sexual assault and domestic
violence.
1:39:21 PM
SENATOR MCGUIRE joined the hearing.
RICK SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law (DOL) stated that, in general, Alaska has
state-of-the-art statutes related to protecting children and
adults from domestic violence and sexual assault. The Governor's
initiative appropriately deals with things like prevention and
keeping kids in school so they aren't victimized, but every year
the conduct of society changes such that the current legislation
needs to be tweaked. SB 72 serves this purpose.
MR. SVOBODNY provided the following sectional analysis of SB 72:
Sections 1 and 2 change the stalking statutes. Right now
stalking occurs when a person A engages in nonconsensual contact
with person B and that conduct places person B or their family
members in fear of death or physical injury.
Reflecting changes in technology, SB 72 adds two ways that a
defendant may make contact that is beyond the victim's consent.
The first is by installing or trying to install a GPS device or
similar technology on a victim's vehicle in order to track their
whereabouts. [The second way includes installing or attempting
to install a device for observing, recording, or photographing
events in a person's home, workplace, or vehicle, or on a
person's personal telephone or computer.]
1:44:01 PM
SENATOR WIELECHOWSKI asked if it would be considered stalking if
a person used Google Earth to look at another person's house on
a regular basis.
MR. SVOBODNY answered no; it's the installation of a device that
would track somebody.
CHAIR FRENCH called a point of order to clarify that on page 2,
subparagraph (H) is about following or monitoring a person with
a GPS and subparagraph (I) is about installing a device that is
like a webcam.
MR. SVOBODNY agreed; he was discussing subparagraph (H) when the
question was posed.
SENATOR WIELECHOWSKI noted that subparagraph (I) talks about
using a device for observing a person's residence and said he'd
like to know how Google Earth doesn't apply. He then asked if
subparagraph (H) would bar an employer from putting a GPS device
on an employee's vehicle.
MR. SVOBODNY replied that conduct alone wouldn't be criminalized
by this section. This stalking section deals with causing
somebody to be placed in fear of death or physical injury by
repeated instances of nonconsensual contact.
SENATOR WIELECHOWSKI indicated he would check the statute.
CHAIR FRENCH agreed with Mr. Svobodny; one of the elements of
stalking is that there's a pattern of nonconsensual contact.
Acknowledging that the members probably aren't totally up to
speed on all advances in technology, he said he isn't sure how
easy it would be to track someone by looking at which cell phone
tower routed their calls. The police use this information from
time to time and it wouldn't be good if a stalker could too. He
asked Mr. Svobodny to comment.
1:47:51 PM
MR. SVOBODNY deferred the question to Sergeant DeGraaf.
He continued to explain that the idea in the first clause in
subparagraph (I) is the situation of installing a device like a
webcam in someone's house or vehicle for the purpose of
observing, recording, or tracking that person. The second clause
deals with computers or telephonic devices in the home or
workplace. He cited examples.
CHAIR FRENCH said the elements listed in subparagraphs (A)
through (I) on pages 1 and 2 require that the victim know about
them.
MR. SVOBODNY replied not necessarily, but as a result of this
conduct the person is put in fear of death or physical injury. A
rather common example is somebody leaving Hallmark cards with
phrases on a person's windshield; it takes awhile to figure out
what's going on, but that conduct can eventually place the
person in fear.
1:52:31 PM
CHAIR FRENCH clarified that there has to be some awareness on
the victim's part that this is happening. If someone is watching
your house and you don't know about it, you don't like it and
it's creepy but it's not part of the stalking proof.
MR. SVOBODNY agreed; the victim has to know about it and be put
in fear.
1:52:53 PM
SENATOR WIELECHOWSKI read the definition of the crime of
stalking in the second degree and asked if it hasn't occurred
until a person knows about it and is in fear of death or
physical injury.
MR. SVOBODNY replied it wouldn't be the crime of stalking until
the person was aware, but the elements might fit another crime
such as eavesdropping or indecent viewing.
SENATOR WIELECHOWSKI questioned what is being criminalized in
subparagraphs (H) and (I).
MR. SVOBODNY explained that this adds to the definition of
nonconsensual contact; if a GPS device was installed or a device
was installed on a person's cell phone or computer and they
became sufficiently cognizant to be put in fear, then that would
be the crime of stalking in the second degree.
SENATOR WIELECHOWSKI asked, if installs one of these devices on
my cell phone and I don't know about it, this bill doesn't make
that a crime.
MR. SVOBODNY confirmed that this change would not make that
conduct a crime.
SENATOR WIELECHOWSKI asked if it would be the crime of stalking
in the second degree if he finds out about the installation and
fears death or physical injury.
MR. SVOBODNY replied the conduct would also have to be repeated.
1:55:39 PM
CHAIR FRENCH said he understands the concern; we're relying on
some other provision of criminal law to rise up and touch the
conduct of somebody putting a webcam in your house without your
knowledge.
MR. SVOBODNY said that would be the crime of eavesdropping and
it's not prosecuted very often.
CHAIR FRENCH suggested that it might be time to look at that
statute since there are so many new ways to share information.
MR. SVOBODNY related that he's prosecuted cases of an estranged
husband putting a listening device in his wife's residence
without her knowledge or consent. That's the crime of
eavesdropping.
1:57:12 PM
SENATOR WIELECHOWSKI said he can see how [the elements in (A) -
(G)] could cause fear of death or physical injury, but he
wonders if the proposed (H) and (I) shouldn't be in another
section. If someone installed one of these devices you'd be more
likely to feel that your privacy had been violated than to fear
death, he said.
CHAIR FRENCH said you have to put it into context; it's the
pattern of nonconsensual contact that makes a person afraid.
MR. SVOBODNY offered to look at the eavesdropping statutes
because it was on his mind when the bill was drafted.
1:58:54 PM
CHAIR FRENCH stated that this is an area the committee is
concerned about and it will be discussed again in future
hearings.
SENATOR MCGUIRE said she likes that the bill addresses stranger-
to-stranger contact because the criminal laws initially were
structured around domestic relations. "It's exciting that at
least our statutes are keeping up with the conduct," she said.
2:00:30 PM
SENATOR PASKVAN reviewed AS 11.41.270(a) and questioned why
there needs to be a "course of conduct" as opposed to saying
that someone "engages in conduct that recklessly places another
person in fear."
MR. SVOBODNY replied stalking was criminalized after a state
employee became infatuated with a female coworker. He started
saying odd things in the elevator, then she saw his car on her
street, and then he started following her all the time. This
course of conduct over time was very frightening and that's
typically what stalking is; it's not one event. Alaska
prohibited the pattern of conduct that scared people in 1993.
SENATOR PASKVAN said he wonders if there's a public policy in
saying that a person should not be allowed to put a monitoring
device on another person's vehicle under any circumstance.
MR. SVOBODNY replied it's easy to say that somebody shouldn't be
able to install a webcam in another person's house, but we don't
even realize how often tracking devices are put in vehicles.
It's common for rental car agencies to track the whereabouts of
their rental fleet and trucking companies use them to track
freight.
2:05:29 PM
SENATOR WIELECHOWSKI asked if a person has engaged in a course
of conduct if they try to put a webcam in someone's house.
MR. SVOBODNY answered no; it would need to be repeated conduct.
CHAIR FRENCH noted that a memo from Mr. Svobodny regarding
Cooper v. Cooper, Alaska 2006 states that more than
nonconsensual contact is needed for the crime of stalking to
take place; the contact must also be repeated so that it is a
course of conduct and it must place the person in fear.
SENATOR WIELECHOWSKI asked if it would be a course of conduct if
someone puts a webcam in your house and they look at you every
night.
MR. SVOBODNY replied, "That certainly would be my argument to
the court."
SENATOR WIELECHOWSKI asked if the courts would agree, given the
way the law is written.
MR. SVOBODNY answered yes; there's precedent in a case involving
the crime of terroristic threatening, which required repeated
conduct. When a judge received a letter that had three
paragraphs, the court said constituted three incidents.
SENATOR WIELECHOWSKI questioned how it's possible to inflict the
fear of death or physical injury by attempting to install one of
these devices.
CHAIR FRENCH said you might walk out of Fred Meyers and see the
person who has been sending creepy messages putting something in
your car or you might come home and find he's been trying to
install a webcam.
MR. SVOBODNY said attempting to install a GPS is an event,
following is an event, and contacting a person at their office
is an event; together that is a repeated course of conduct.
2:08:19 PM
SENATOR WIELECHOWSKI asked if it would be a crime of stalking in
the second degree to install a webcam outside someone's house
and focused on their front door.
MR. SVOBODNY replied that would not be counted as part of this
course of conduct. He said his interpretation would be that it
must be installed in the house.
CHAIR FRENCH opined that it's an open question because you'd see
inside the residence if a device was installed outside the
residence but focused on a window or the front door.
SENATOR PASKVAN asked about the circumstance of hiring a private
investigator to track the activities of a person.
MR. SVOBODNY replied a person who solicits another or aids and
abets another in committing a crime is as guilty as the person
that is doing the crime. If the investigator's conduct fits the
elements and recklessly places the person in fear of death or
physical injury, both the private investigator and the employer
would be committing a crime.
2:10:49 PM
SENATOR PASKVAN said private investigators are hired all the
time to do just that, particularly in the civil arena. This
makes it a bit unclear as to what's a crime and what's legal. Is
it legal if someone's registered with the state to be a stalker,
as opposed to the amateur?
MR. SVOBODNY agreed that private investigators do all those
things, but they have to meet the other elements of the crime.
He added that it's a problem when a criminal statute can be read
multiple ways because the defendant wins in their
interpretation.
2:13:01 PM
SENATOR WIELECHOWSKI said he has great concern passing laws that
give prosecutors great discretion; rather, the law should be
written as succinctly and articulately as possible. Senator
Paskvan raises an excellent point, and the language in the
proposed provisions should be tightened, he said.
CHAIR FRENCH pointed out that the foundational element is the
course of conduct that recklessly places another person in fear
of death or physical injury. It's not the specific incident that
a prosecutor will rely on to form the basis of his/her case.
He asked Mr. Svobodny to move to Section 2.
2:15:12 PM
MR. SVOBODNY said Section 2 includes "software" in the
definition of "device."
Section 3 increases the classification of the crime of online
enticement of a minor for a person who is not required to
register as a sex offender or child kidnapper from a class C
felony to a class B felony. For a person who is required to
register as a sex offender, the classification would increase
from a B felony offense to an A felony offense. It also refers
to Section 12 and places the offense of online enticement in
with the other sexual assaults, attempted sexual assaults, or
conspiracy to commit sexual assaults. This changes the
presumptive ranges for these offenses.
2:17:59 PM
SENATOR PASKVAN asked if this is really a problem because
increasing the penalties would give defendants more reason to
mount a vigorous defense and the cases would be more complex for
prosecutors.
MR. SVOBODNY said he agrees that it's likely that these cases
would be litigated strongly and the work would increase for
prosecutors, but the complexity of the cases would be the same.
He offered to follow up and provide the information about how
many of these cases go to trial.
CHAIR FRENCH said he'd like to know how many people are
prosecuted under this statute given the scope of the problem in
Alaska with sex assault and sex abuse of a minor.
MR. SVOBODNY agreed to provide the information and warned that
the numbers of cases that are prosecuted are substantially less
than the numbers of times that people in Alaska have gone online
and exchanged child pornography. He reminded the committee of
the demonstration last year that showed these online exchanges
and emphasized that these cases are time consuming to
investigate because it's necessary to not only track down the
computer that was used but also to prove that a particular
individual was sitting behind that computer.
2:21:41 PM
MR. SVOBODNY summarized that Sections 3 and 4 deal with the
online enticement and Section 5 deals with the unlawful
exploitation of a minor. The penalties are increased for these
crimes.
Section 6 amends the crime of endangering the welfare of a minor
in the first degree. The current law prohibits a parent or
guardian from leaving a child under age 16 with a person who is
required to register as a sex offender. This adds a person who
is required to register as a child kidnapper to that group.
SENATOR COGHILL asked if his understanding is correct that a lot
of the people that are required to register as a child kidnapper
end up in this category because of disputes over the custody of
their children.
MR. SVOBODNY replied he would follow up and look at the
kidnapping statute, but he believes these cases would generally
be charged as custodial interference.
SENATOR COGHILL said he needs to understand this better because
some custody disputes are legitimate.
2:24:56 PM
Section 7 adopts a new crime for "sexting." It proscribes a
person sending an explicit image of a minor's genitals, anus, or
female breast without consent of the parent or guardian if the
minor is under age 16. The prohibited conduct would be a B
misdemeanor offense if the image is published or distributed to
one or two people; an A misdemeanor offense if the image is
published to more than two people; and a C felony offense if the
publication or distribution is over the Internet. This would not
apply to a minor under age 16 who publishes or distributes his
or her own image.
MR. SVOBODNY noted that this issue is somewhat controversial and
a way to resolve it may be to include the "Romeo and Juliet
exception," which is that a required element would be that there
has to be four years difference between the person whose picture
is sent and the person who posts the image.
CHAIR FRENCH stated concern about the section.
2:27:38 PM
SENATOR WIELECHOWSKI posed a hypothetical situation of a
grandmother using her iphone to take a picture of a baby she is
watching to send it to her bridge club friends. He asked if this
violates the statute because the baby is only wearing diapers.
MR. SVOBODNY replied that would be a problem under the strict
reading of the bill because the grandmother isn't a legal
guardian. If the prosecutors used no common sense it would be a
misdemeanor offense.
SENATOR WIELECHOWSKI asked if it would be a violation of the law
if a 15 year old girl took pictures of herself and distributed
them a week later after she turned 16.
MR. SVOBODNY replied she could be prosecuted under the bill
because the crime occurs when the distribution occurs.
2:29:58 PM
ANNE CARPENETI, Assistant Attorney General, Department of Law
(DOL), clarified that the bill specifically provides that the
statute doesn't apply to a person sending their own picture.
CHAIR FRENCH reviewed the language on page 3, line 28, that says
it doesn't apply to a minor under 16 and pointed out that
Senator Wielechowski's hypothetical posits distribution at age
17.
MS. CARPENETI agreed that should be clarified.
SENATOR PASKVAN posed a hypothetical situation of a 15 year old
girl sexting to a 16 year old boyfriend who shares it with a
buddy. He asked if the boyfriend committed a class B misdemeanor
offense.
MS. CARPENETI reminded the committee that juveniles would be
dealt with in juvenile court, but if the boyfriend was 18 or
older he would have committed a class B misdemeanor.
2:32:20 PM
SENATOR PASKVAN urged caution because even if they were a
juvenile this could follow them throughout their life.
CHAIR FRENCH asked if this is a registerable offense.
MS. CARPENETI answered no.
CHAIR FRENCH clarified that a person who commits these offenses
would not have to register as a sex offender.
SENATOR COGHILL asked if there's a law that models some
responsibility for a minor who takes a picture of him or herself
and sends it on.
MS. CARPENETI replied she hasn't seen one. She added that these
are difficult choices and that's reflected in the tough
questions that are being asked.
CHAIR FRENCH questioned the wisdom of criminalizing behavior
that is without question stupid. He observed that a 15 year old
girl could put a picture of herself on Facebook and she hasn't
committed a crime, but her boyfriend has if he points it out.
MS. CARPENETI clarified that the boyfriend wouldn't have
committed a crime unless he forwards the image his 15 year old
girlfriend posted.
MS. CARPENETI said we have to assume that the prosecutors and
division of juvenile justice (DJJ) personnel are using common
sense.
2:34:34 PM
CHAIR FRENCH asked what core conduct this is aimed at that isn't
covered by existing statutes that punish child pornographers or
enticers of children.
MR. SVOBODNY clarified that child exploitation is a felony
offense and is substantially more serious. This bill is trying
to address the reality that pictures that are posted on the
Internet never die. They follow a person for the rest of his or
her life and may influence a potential future employer. This is
to reduce the impact of making a stupid decision.
2:38:02 PM
SENATOR WIELECHOWSKI asked if there are any exceptions for
things with literary or artistic merit. For example, would it be
a crime under this statute to forward a picture of a 17th
century painting of a young girl who isn't wearing a shirt?
MR. SVOBODNY said that when he asked Ms. Carpeneti to draft this
bill, his thought process was that things with artistic value
would fall under the parental/guardian consent exception.
SENATOR WIELECHOWSKI asked if he would have committed a crime
under Sec. 11.61.116 if he were to forward a 17th century
literary masterpiece of a young girl who isn't wearing a shirt.
MR. SVOBODNY answered no.
SENATOR WIELECHOWSKI questioned how that wouldn't meet the
technical definition of this violation.
MR. SVOBODNY conceded that the language probably needs to be
tightened, but the idea is to limit future consequences of
having made a stupid and indiscrete youthful decision.
2:41:49 PM
SENATOR MCGUIRE stated that she believes that the current
language is vulnerable to constitutional challenges. She then
raised the issue of someone using another person's phone and
publishing an image or text without consent. In another
hypothetical situation teens pass a phone around to show a photo
and someone pushes "send." In both cases it would be a matter of
proof as to who published. These examples show that in real life
the chain of custody isn't as clear as we might describe it, she
said.
MS. CARPENETI clarified that this only applies to images, not
text.
SENATOR MCGUIRE responded that it's a very quick process that's
often done without consent. She mentioned her experience with
her young son.
2:46:11 PM
MS. CARPENETI pointed out that this is a criminal statute that
has culpable mental states. The state would have to prove beyond
a reasonable doubt that a person knowingly posted the image with
reckless disregard to the age of the person in the image. She
reiterated that this is difficult and she appreciates the
helpful comments.
SENATOR PASKVAN asked how many people the state believes will be
put in jail by this statute assuming there is a common sense
understanding of who would and would not be prosecuted.
MR. SVOBODNY replied hopefully no one but it's a difficult
question because this isn't a current crime so there aren't any
statistics. What we don't want is to have a 24 year old man
distributing pictures of a 15 year old girl.
2:49:03 PM
CHAIR FRENCH announced he would hold SB 72 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB62 Sponsor Statement.pdf |
SJUD 2/7/2011 1:30:00 PM |
SB 62 |