Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/29/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB212 | |
| SB218 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 212 | TELECONFERENCED | |
| *+ | SB 218 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 218-SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE
2:08:39 PM
CHAIR FRENCH announced the consideration of SB 218.
2:08:56 PM
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), said SB 218 deals
with sex trafficking and other sex offenses. The bill proposes a
change in terminology for the crime of promoting prostitution
sex trafficking. The offense is the same; it is a person
victimizing another person and inducing him or her to engage in
prostitution. Law enforcement officers already use the new
terminology so this statutory change will facilitate better
communication. It is also good policy to refer to people who are
trafficked, especially children, as victims rather than as
prostitutes. She provided the following sectional analysis.
Section 3 adds the crimes of human trafficking in the first
degree and sex trafficking in the first degree to the felonies
described as "serious felony offenses" under the conspiracy law,
AS 11.21.120. This will enable the state to investigate and
potentially prosecute offenders who work with other people to
plan or engage in human trafficking or sex trafficking.
The penalty for conspiracy to commit this crime is one level
below the crime itself. Sex trafficking in the first degree of a
child under age 18 is currently an unclassified felony, so
conspiracy to commit sex trafficking in the first degree of a
child under age 18 would be a class A felony under SB 218.
CHAIR FRENCH asked if it would be a class B felony if the victim
was not under age 18.
MS. CARPENETI said yes. She added that human trafficking in the
first degree is a class A felony, so conspiracy to commit human
trafficking in the first degree would be a class B felony.
CHAIR FRENCH asked if there was any age differentiation in human
trafficking.
MS. CARPENETI answered no.
Section 4 amends the crime of distribution of indecent materials
to minors, AS 11.61.128. This change is in response to a recent
decision by a federal district court judge who held the current
statute unconstitutional in violation of the First Amendment,
because it applies to constitutionally protected conduct by
adults. Responding to the decision, the bill requires the state
prove that the defendant intentionally distributed or possessed
with intent to distribute harmful material to another person
that the offender knows is under age 16 or believes is under age
16. DOL is confident that these changes will answer the concerns
of the court in finding the statute to be overbroad.
2:13:56 PM
SENATOR WIELECHOWSKI asked if it would be a crime for a 30-year-
old to intentionally distribute material to someone he or she
believes is under age 15 even though the person is actually 25
years old.
MS. CARPENETI replied it would be a crime if they believed the
person to be under age 16. This is to allow investigators to
find perpetrators in an Internet context.
MS. CARPENETI said the next changes occur in Sections 5-6. These
sections raise the penalty for being a patron of a prostitute
who is a minor under age 18, from a class B misdemeanor to a
class C felony. It also specifies the legislative intent that
the age of the prostitute is a circumstance that does not
require proof of a culpable mental state. The Legislature can do
this if it is clear that the particular circumstance is one that
the state does not have to prove culpable mental state. She
reminded the committee that in 2007 it put portions of Senate
Bill 157 into House Bill 90 making it a crime to be a patron of
a prostitute. This raises the penalty when the prostitute is
under age 18.
2:16:18 PM
CHAIR FRENCH asked if she had any concern that in Alaska the age
of consent is 16.
MS. CARPENETI replied DOL is confident that this is defensible
because the sex trafficking statutes deal with minors under age
18.
CHAIR FRENCH asked if it was aimed at the patron or the
prostitute.
MS. CARPENETI replied the increased penalty is aimed only at the
patron.
CHAIR FRENCH observed that if the prostitute is age 15 the
defendant has also committed the crime of sex abuse of a minor.
MS. CARPENETI agreed and noted that Quinlan Steiner suggested
redrafting the provision to clarify that the heightened penalty
applies only to the patron.
CHAIR FRENCH said he looked forward to seeing a suggestion from
DOL about that language.
MS. CARPENETI explained that Section 12 amends the corroboration
provision for sex trafficking. Under current law, no
corroboration is required of the testimony of an alleged victim
in a prosecution for promoting prostitution (sex trafficking) in
the first, second, and third degrees. This provision was adopted
in 1978 when the criminal code was written. In 2007, the
Legislature addressed the promoting prostitution statutes, but
did not change the corroboration to apply to the new crime of
promoting prostitution for sex trafficking in the fourth degree.
It was an oversight and the bill fixes that.
Section 13 provides for forfeiture of property gained or used in
promoting prostitution or sex trafficking and it also applies to
prostitution itself.
CHAIR FRENCH asked if APD was seizing the cars of pimps or
johns.
MS. CARPENETI deferred the question to Sergeant Lacey with the
Anchorage Police Department (APD), and continued the sectional.
Section 16 allows contemporaneous two-way video conference
testimony of a witness in a hearing addressing the competency of
a defendant. It allows this testimony if the witness would be
required to travel more than 50 miles to attend the hearing in
person or if the witness lives in a place where people
customarily travel by air to the court site. She reminded the
committee that a person cannot be tried for a crime if, because
of mental disease or defect, he or she is unable to understand
the nature of the charges or proceedings or assist his or her
attorney in their defense.
MS. CARPENETI explained that this is unlike a criminal trial in
the sense that the full panoply of constitutional rights do not
apply. If the defendant is claiming incompetence, the burden is
on him or her to prove that by a preponderance of the evidence,
whereas those burdens are generally for the prosecution to
disprove.
2:21:34 PM
CHAIR FRENCH asked if under the current rules an objecting party
can effectively force an in-court discussion.
MS. CARPENETI replied that is generally the case.
CHAIR FRENCH asked if any other state had this provision.
MS. CARPENETI offered to follow up with the list. She added that
the Ninth Circuit Court of Appeals approved a similar
proceeding. It clearly saves expert witnesses time and effort if
they do not have to fly to a remote area to testify in a case.
SENATOR PASKVAN asked if there was an implied requirement for
the expert to be licensed in Alaska.
MS. CARPENETI said no.
Section 20 adds a new provision to the sex offender registration
law that requires a person present in Alaska, who has been
convicted of an offense out of state that requires registration
in that jurisdiction, to register in Alaska. This requirement
would apply even if Alaska does not have a similar criminal
provision. A person would be required to register for 15 years
if convicted of one offense, and for life if convicted for two
or more offenses.
Section 25 adopts Rule 38.3, Alaska Rules of Criminal Procedure,
addressing the use of testimony by contemporaneous two-way video
conference. The U.S. Supreme Court approved this kind of
testimony in Maryland v. Craig. For this to occur, the court
must find that its use is necessary to further an important
public policy and the witness is unavailable. The testimony is
given under oath and is subject to cross-examination. The fact-
finding has to be by clear and convincing evidence.
2:26:12 PM
SENATOR PASKVAN asked how many courtrooms have this capacity.
MS. CARPENETI replied there are several, but the real necessity
is to have a facility where the witness can go and testify.
2:28:09 PM
CHAIR FRENCH asked if video conference testimony is done now
with the consent of both sides.
MS. CARPENETI said yes, and the proposed rule allows the court
to order it when both sides do not consent. Responding to a
further question, she explained that 50 miles applies to the
contemporaneous testimony in competency hearings.
Contemporaneous testimony means it has to happen live as if the
person were in the courtroom. The child witness provision that
passed in 1994, and was amended in 2004, allows closed circuit
television of a child witness. Under that provision, the child
is not required to face the defendant, whereas this provision
requires the witness to testify under circumstances as if he or
she were in the courtroom.
2:30:17 PM
SENATOR WIELECHOWSKI asked if other states do this.
MS. CARPENETI replied other states are starting to, and it makes
sense with current technology.
SENATOR WIELECHOWSKI asked if there was a way to ensure that the
witness is not referring to documents or being coached by
another person.
MS. CARPENETI said yes; the proposed rule provides that either
party could request the court to exclude everyone other than the
video operator.
SENATOR WIELECHOWSKI asked if the video operator would be
licensed.
MS. CARPENETI said she was not aware of a licensing procedure
for video operators but she would find out.
CHAIR FRENCH commented that the Alaska Career Academy could
potentially offer that certification.
2:32:13 PM
SENATOR PASKVAN informed the committee that the civil rules have
announcement requirements for taking a video deposition.
SENATOR COGHILL asked if both parties would have to agree to
accept this type of testimony.
MS. CARPENETI clarified that this allows the court, under
certain limited circumstances, to allow this type of testimony
even if one party does not agree.
SENATOR COGHILL asked if the court would be the facilitator.
MS. CARPENETI replied this allows the trial court to set up the
procedure in each case, and it will vary depending on the
circumstances.
2:33:36 PM
MS. CARPENETI directed attention to Section 19 on page 12 and
explained that it conforms the terminology and corrects an
omission in a statute that passed last year. That statute put
online enticement of a minor into the category of sex offenses
in AS 12.55.125 for heightened penalties, but that particular
crime was not added to the definition of most serious felony in
the definitional section of Sec. 12.55.
2:35:30 PM
KATHRYN MONFREDA, Chief, Criminal Records and Identification
Bureau, Department of Public Safety (DPS), said her duties
include management of the sex offender registry.
CHAIR FRENCH asked her to discuss Section 20 dealing with sex
offender registration, and describe the crimes that Alaska
statutes do not cover or for which there is some substantial
difference.
MS. MONFREDA provided some examples. Washington has a state law
about communicating with a minor for immoral purposes and a
crime called assault with sexual motivation. The elements of
those crimes do not meet the requirement to register as a sex
offender in Alaska. In addition, some of the offenses under the
U.S. code of military justice do not have the elements that
would require someone to register in this state.
CHAIR FRENCH asked if she receives inquiries on a monthly basis
about registering as a sex offender in Alaska for crimes
committed in other jurisdictions.
MS. MONFREDA replied her office receives on average three or
four inquiries a month.
CHAIR FRENCH asked how many were asking about crimes for which
Alaska does not have an analog.
MS. MONFREDA explained that there were no immediate answers for
most of the inquiries.
2:38:03 PM
SENATOR WIELECHOWSKI questioned the possibility of laundering a
registerable crime by moving from state to state before coming
to Alaska.
MS. MONFREDA offered her interpretation of the language. If the
offender has to register in the state where the offense
occurred, he or she would have to register in Alaska.
SENATOR MCGUIRE asked if the people making the inquiries were
considering a move to Alaska or were already here.
MS. MONFREDA replied most are considering a move, but some are
already here.
2:39:26 PM
SENATOR MCGUIRE said she supports the provision because she
wants Alaska to be the last place a sexual predator would
consider moving to.
SENATOR WIELECHOWSKI asked if someone would have to register for
an offense that is not illegal in Alaska if he or she had to
register in the jurisdiction where it occurred.
CHAIR FRENCH said that's why the committee has grappled with the
issue.
2:42:57 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration (DOA), articulated two concerns
with SB 218. The first is that a victim could potentially be
prosecuted as a prostitute for a class C felony under Section 6.
The other concern relates to the confrontation clause in Section
16 regarding video conferencing. The issue is still up in the
air as to whether or not the full confrontations right applied
to a pretrial hearing. He opined that a constitutional challenge
was a certainty because of the public interest and that there
was no limitation on unavailability.
SENATOR WIELECHOWSKI expressed interest in knowing how DOL would
define "unavailable." He asked if the language was broad enough
for a court to allow a video conference from Hawaii where a
witness was vacationing and therefore unavailable.
MR. STEINER said theoretically yes, but he would hope the court
would not do that. Unavailability is referred to narrowly in the
rules of evidence and is broadly stated elsewhere. He reviewed
the definition on page 17, lines 22-28.
2:45:32 PM
CHAIR FRENCH called a point of order to clarify that Section 16
does not have an unavailability component.
MR. STEINER agreed, and added that Section 16 was a concern
because it allows the court to order [contemporaneous two-way
video conferencing] without the limitations of a compelling
interest. He described a competency hearing in a rural location
to illustrate the problem. It is time consuming to travel to
remote locations and experts often prefer to testify
telephonically. If a physician testifies telephonically that a
person is competent and the statement is contested, cross-
examination to test the veracity and validity of the statement
is very difficult.
SENATOR WIELECHOWSKI asked him to talk about the difficulties of
trying to cross-examine a witness over a video teleconference.
MR. STEINER said one problem is that it would be virtually
impossible to confront someone with a document they did not
have. Some cross-examination is conducted without prior
presentation so it would reduce the effectiveness of that
technique. There is also the separate question of what face-to-
face confrontation means. The dissenting opinion in Craig talks
about what persisting in testimony means when the person is not
present. This arises in competency hearings when there is a
question about whether the physician spent enough time with the
patient to determine competency.
2:48:11 PM
CHAIR FRENCH asked how many competency hearings are held each
year in Alaska.
MR. STEINER estimated it was more than 20.
SENATOR WIELECHOWSKI asked if expert witnesses were often
presented with large volumes of evidence that they had not seen
before the hearing.
MR. STEINER said that was a possibility.
SENATOR COGHILL asked if it was the professional testimony and
therefore that professional's reputation that was at stake, not
the person for which the competency hearing was held.
MR. STEINER said yes.
SENATOR COGHILL said he was less concerned about a professional
who did not have all the paperwork ahead of time than a client
who was under light representation.
CHAIR FRENCH said the question made him wonder about the
difference in having a jury evaluate evidence as opposed to a
judge. Here the competency hearing is a legal issue decided by a
judge, whereas the second section is about testimony that takes
place where the jury is the fact finder. He observed that there
would be subtle differences in the confrontation rights before a
judge versus before a jury.
MR. STEINER said the federal courts used that sort of analysis
to draw a distinction between the confrontation that would apply
pre-trial versus the confrontation at would apply at trail. He
reiterated that Alaska courts have not specifically talked about
the confrontational clause in pre-trial competency matters.
SENATOR COGHILL asked if there was a protocol that judges
follow.
MR. STEINER said not under this statute, but they could look to
the trial procedures.
2:53:30 PM
SENATOR WIELECHOWSKI commented that expert witness testimony in
a competency hearing can be critical in determining whether or
not a person is sent to prison for life. He suggested the
committee tread lightly.
CHAIR FRENCH mused about the potential rise in stature of the
video conferencing technician under these circumstances.
MR. STEINER agreed that there are instances where documents
become relevant through questioning.
2:55:25 PM
SENATOR COGHILL asked if just one competency hearing would be
allotted.
MR. STEINER replied even a simple competency hearing can go for
more time than is allotted for a specific hearing.
SENATOR WIELECHOWSKI asked if confidential documents are
presented at competency hearing, because this would place them
in the hands of a video conference technician.
MR. STEINER replied it is all theoretically confidential.
2:56:40 PM
MR. STEINER said all the concerns about confrontation are raised
in Section 25. The bill tries to comply with the requirements in
the U.S. Supreme Court decision in Craig, but it broadly opens
the question of unavailability. He agreed with Ms. Carpeneti
that availability would probably be determined on a case-by-case
basis, but that didn't mean the finding would pass
constitutional muster. There is also the question about whether
or not it is an important state interest. He opined that the
analysis should be on a case-by-case, but the drafting opens it
to a broad, single finding.
He suggested two potential fixes. One is to litigate pre-trial
with an evidentiary hearing as to whether or not video
conferencing is sufficient. The other recommendation is to
require the video recording to be secured and preserved as part
of the record.
CHAIR FRENCH asked if he saw a distinction between a central
witness and a peripheral witness.
MR. STEINER replied cases can turn on a seemingly unimportant
witness. He then referred to what Justice Scalia said in the
dissenting opinion in the Craig case. He pointed out that the
first time a child may see the accused parent is at trial, and
if a false statement was made it is much easier to persist when
not confronted by their parent.
CHAIR FRENCH said he looked forward to reading the case.
MR. STEINER turned to Section 20 regarding registration and
confirmed it was a problem that someone would have to register
for having engaged in conduct that is not criminal in Alaska.
That problem will persist throughout the life of that section of
statute, he said.
CHAIR FRENCH held SB 218 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 212 Letter of Support.pdf |
SJUD 2/29/2012 1:30:00 PM |
SB 212 |
| SB 212 Sponsor Statement.doc |
SJUD 2/29/2012 1:30:00 PM |
SB 212 |
| SB 218 Sectional Analysis.pdf |
SJUD 2/29/2012 1:30:00 PM |
SB 218 |
| SB 218 497_US_836.doc |
SJUD 2/29/2012 1:30:00 PM |
SB 218 |
| SB 218 Gigante.doc |
SJUD 2/29/2012 1:30:00 PM |
SB 218 |
| SB 218 ACLU Review.pdf |
SJUD 2/29/2012 1:30:00 PM |
SB 218 |