Legislature(2013 - 2014)BELTZ 105 (TSBldg)

02/19/2014 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 110 RETURN OF SEIZED PROPERTY TELECONFERENCED
Heard & Held
+= SB 128 ELECTRONIC BULLYING TELECONFERENCED
Heard & Held
+= SCR 2 ACQUIRE TONGASS NATIONAL FOREST LAND TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
                   SB 128-ELECTRONIC BULLYING                                                                               
                                                                                                                                
2:22:34 PM                                                                                                                    
CHAIR   COGHILL  reconvened   the  hearing   and  announced   the                                                               
consideration  of  SB  128."An  Act  relating to  the  crime  of                                                               
harassment." This was the first hearing.                                                                                        
                                                                                                                                
2:23:09 PM                                                                                                                    
EDRA MORLEDGE, Staff,  Senator Kevin Meyer, introduced  SB 128 on                                                               
behalf  of  the  sponsor,  speaking   to  the  following  sponsor                                                               
statement:                                                                                                                      
                                                                                                                                
     With advances in technology and social media, harassment                                                                   
     by  electronic means,  or  "cyberbullying," has  become                                                                    
     increasingly prevalent. Our current  statutes allow for                                                                    
     some forms of  bullying to be handled within the school                                                                    
     system, however not all bullying occurs on or near school                                                                  
     property. In some extreme cases, cyberbullying has led to                                                                  
     suicide. SB 128 will allow for punishment outside of the                                                                   
     school system, and makes harassment of a person under 18                                                                   
       years of age by electronic communication a class B                                                                       
     misdemeanor.                                                                                                               
                                                                                                                                
MS. MORLEDGE noted that the bill had two zero fiscal notes.                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI  asked if there  was a rationale  for saying                                                               
that it's  legal to  call or send  a letter to  a person  that is                                                               
insulting,  taunting, or  challenging, but  it's illegal  if it's                                                               
put in an email.                                                                                                                
                                                                                                                                
MS. MORLEDGE offered  her understanding that this  simply adds to                                                               
the   current  harassment   laws  that   already  cover   written                                                               
communication.                                                                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  expressed  interest in  hearing  from  the                                                               
Department of Law.                                                                                                              
                                                                                                                                
2:27:42 PM                                                                                                                    
CHAIR   COGHILL  offered   his   understanding  that   electronic                                                               
intimidation could be charged under AS 11.61.120(a)(1).                                                                         
                                                                                                                                
MS. MORLEDGE  responded that  was technically  her understanding,                                                               
but  other  states  have  not  been able  to  charge  unless  the                                                               
communication   is   specifically    identified   as   electronic                                                               
harassment.                                                                                                                     
                                                                                                                                
CHAIR COGHILL opened public testimony.                                                                                          
                                                                                                                                
2:28:31 PM                                                                                                                    
DAISY   MAY  BARRARA,   representing  herself,   Bethel,  Alaska,                                                               
testified in  support of  SB 128. She  explained that  her Alaska                                                               
Native culture has a belief  that language can kill an individual                                                               
if  used  improperly.  She  said she  believes  this  applies  to                                                               
electronic communication  as well. She thanked  the committee for                                                               
paying close attention to this critical issue.                                                                                  
                                                                                                                                
2:31:06 PM                                                                                                                    
ARELENE  BRISCOE, Alaska  Nurses Association,  Anchorage, Alaska,                                                               
said  she's been  a  nurse for  35 years  and  a board  certified                                                               
mental health nurse  in Alaska since 1987. She  reported that she                                                               
works at an Anchorage hospital  and daily sees the torment caused                                                               
by  cyberbullying through  Facebook, Twitter,  and now  Snapchat.                                                               
Children  are the  hardest hit  population and  suicides, suicide                                                               
attempts, and  suicide ideations are  a daily occurrence  and she                                                               
sees the fallout at the hospital.                                                                                               
                                                                                                                                
She highlighted that  the bill doesn't address  this, but bullies                                                               
need  to be  treated too  because they  are just  as affected  by                                                               
mental health issues as the  victims. Both are suffering and need                                                               
help.                                                                                                                           
                                                                                                                                
2:34:43 PM                                                                                                                    
CHAIR COGHILL expressed interest in  knowing how a juvenile bully                                                               
might  be treated  as opposed  to a  bully who  is older  than 18                                                               
years of age.                                                                                                                   
                                                                                                                                
MS. BRISCOL  discussed the importance  of early  intervention for                                                               
kids  who  have been  identified  through  the school  system  as                                                               
having  problems because  they are  doing some  of the  bullying.                                                               
They need help before they  get into the juvenile justice system,                                                               
she said.                                                                                                                       
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  the age  limitation  should  be                                                               
removed, like in Illinois, so the application is much broader.                                                                  
                                                                                                                                
MS. BRISCOL  said yes;  women are bullied  by their  spouses. She                                                               
added  that  this is  different  from  a  letter because  once  a                                                               
communication is on Facebook it doesn't go away.                                                                                
                                                                                                                                
SENATOR  WIELECHOWSKI expressed  doubt that  this would  apply to                                                               
Facebook because it says "sends."                                                                                               
                                                                                                                                
SENATOR   DYSON  expressed   concern   about   how  people   with                                                               
significant disabilities would  be affected if age 18  is left in                                                               
the bill.                                                                                                                       
                                                                                                                                
CHAIR  COGHILL said  his research  shows that  most states  don't                                                               
have an age restriction, but it  appears that the sponsor is most                                                               
concerned about youth bullying.                                                                                                 
                                                                                                                                
2:39:44 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department of Law,  discussed drafting concerns with  SB 128. She                                                               
stressed in  this draft  the importance of  not making  conduct a                                                               
class B  misdemeanor that might, under  certain circumstances, be                                                               
more serious. For example, fear  assault is assault in the fourth                                                               
degree, which is a class A  misdemeanor, or even a class C felony                                                               
if it's assault in the third degree.                                                                                            
                                                                                                                                
She  suggested   modifying  the   language  to  say:   "sends  an                                                               
electronic communication to a person  under 19 years of age." She                                                               
explained that  to make  it a  crime to  send this  material, the                                                               
culpable  mental state  for harassment  in the  second degree  is                                                               
with  intent to  harass or  annoy  another person.  She said  she                                                               
assumes the  other person is the  child, so it needs  to be clear                                                               
that the electronic communication is being sent to that person.                                                                 
                                                                                                                                
CHAIR COGHILL said he didn't  believe that was the issue, because                                                               
these communications sometimes  are sent to a  wide audience with                                                               
the idea  of denigrating a  person's reputation. That  person may                                                               
not even see the communication.                                                                                                 
                                                                                                                                
MS.  CARPENETI restated  that the  prosecution has  to prove  the                                                               
culpable mental  state of  intending to  annoy or  harass another                                                               
person and it  would be easier to prove if  the communication was                                                               
to that person.                                                                                                                 
                                                                                                                                
SENATOR  WIELECHOWSKI observed  that it's  not clear  whether the                                                               
phrase  "sends an  electronic  communication" includes  telephone                                                               
calls and Facebook and Twitter  posts. He suggested the committee                                                               
have  a  philosophical discussion  about  the  question that  the                                                               
Chair raised because  a person can do a lot  of damage to another                                                               
person by harassing them on their own Facebook page.                                                                            
                                                                                                                                
MS.   CARPENETI  said   that's   the   problem  with   electronic                                                               
communication; it's  difficult to  forbid in  a way  that doesn't                                                               
impose on a person's First Amendment rights.                                                                                    
                                                                                                                                
CHAIR COGHILL asked  the principle of law for slander  and how it                                                               
might apply to cyberbullying.                                                                                                   
                                                                                                                                
2:44:22 PM                                                                                                                    
MS.  CARPENETI explained  that  a person  can  claim damages  for                                                               
slander in a civil action; it wouldn't be a crime.                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI  added that  challenging someone to  a fight                                                               
or threatening to kill them or their family would be harassment.                                                                
                                                                                                                                
MS. CARPENETI said  depending on the circumstances it  could be a                                                               
fear assault.  She also  suggested repeating  the word  "fear" to                                                               
clarify that  the person is in  fear or physical injury,  in fear                                                               
of severe  mental or emotional injury,  or fear of damage  to the                                                               
person's property. This will keep  it from being mixed with other                                                               
crimes.                                                                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI  asked her to  talk about state of  mind and                                                               
whether it's  objective or  subjective and  whether you  know the                                                               
person is fragile or not.                                                                                                       
                                                                                                                                
MS. CARPENETI  said her assumption  is it means  reasonable fear,                                                               
which is  an objective  standard, but she'd  like to  think about                                                               
it.                                                                                                                             
                                                                                                                                
CHAIR COGHILL questioned whether it  ought to be explicit that it                                                               
means reasonable fear.                                                                                                          
                                                                                                                                
MS. CARPENETI  commented that  it's difficult to  draft in  a way                                                               
that  captures  the potential  harm  of  the conduct  while  also                                                               
protecting the constitutional right to expression.                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI  asked her  to talk  about the  timeline for                                                               
reasonable  fear, because  AS 11.61.120(a)(1)  says the  insults,                                                               
taunts,  or  challenges  have to  provoke  an  immediate  violent                                                               
response.                                                                                                                       
                                                                                                                                
MS. CARPENETI suggested he pose  the question to the sponsor. She                                                               
said she  assumes it means  an immediate reaction but  it doesn't                                                               
say that, and the other provisions do.                                                                                          
                                                                                                                                
CHAIR COGHILL suggested the sponsor  bring information about what                                                               
other states have done in this area.                                                                                            
                                                                                                                                
2:48:48 PM                                                                                                                    
QUINLAN STEINER, Director, Public  Defender Agency, Department of                                                               
Administration  (DOA), Anchorage,  Alaska, stated  agreement with                                                               
Ms.  Carpeneti's  suggestion  that  it would  help  the  bill  to                                                               
clarify  that the  electronic communication  is  to a  particular                                                               
person. Without  clarification of what's been  criminalized, it's                                                               
too vague  and would likely  result in different views  of what's                                                               
covered  in different  prosecutions. There's  also a  lack of  an                                                               
imminent  requirement  that is  seen  elsewhere  in fear  assault                                                               
statutes and  even earlier in  this statute where  the insulting,                                                               
taunting,  or  challenges  are likely  to  provoke  an  immediate                                                               
response. There's  an immediacy component to  it that's important                                                               
in  terms of  defining  what ought  to  be criminalized.  Without                                                               
that, it  could be broadly  interpreted to apply to  many things,                                                               
he said.                                                                                                                        
                                                                                                                                
MR. STEINER expressed concern with  the suggestion to include the                                                               
idea of  fear of  severe mental or  emotional injury  and instead                                                               
suggested requiring some level of  an imminent threat or imminent                                                               
fear  of  physical  injury.  This   would  narrow  the  bill  and                                                               
eliminate  risk an  over broad  application that  unintentionally                                                               
criminalizes certain conduct.                                                                                                   
                                                                                                                                
CHAIR COGHILL  asked his perspective of  limiting the application                                                               
of this law to people under  age 18 versus applying it broadly to                                                               
all ages.                                                                                                                       
                                                                                                                                
MR. STEINER  replied his understanding  is that the  bill intends                                                               
to  target  cyberbullying  of   juveniles,  and  that  limitation                                                               
eliminates the  risk of  prosecutions in  areas where  it doesn't                                                               
make sense.                                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked if the  phrase "damage to the person's                                                               
property" is overly broad.                                                                                                      
                                                                                                                                
MR. STEINER agreed it is  fairly broad and suggested amending the                                                               
language to  ensure that  sending an  email threatening  to break                                                               
another person's  pencil wouldn't  be criminal  conduct. Juvenile                                                               
conduct  that  you might  not  endorse  shouldn't necessarily  be                                                               
subject to criminal penalties, he said.                                                                                         
                                                                                                                                
Responding  to  a  question,  he  confirmed  that  an  electronic                                                               
communication could be prosecuted  under AS 11.61.120(a)(1) if it                                                               
was  delivered  in  a  manner  that  was  likely  to  provoke  an                                                               
immediate violent response. That's  why the imminent component is                                                               
helpful, he said,  because you could theoretically  send an email                                                               
that's harassing  or taunting about  something that  would happen                                                               
far in the future.                                                                                                              
                                                                                                                                
2:56:05 PM                                                                                                                    
SENATOR   WIELECHOWSKI   asked   if    he   sees   any   problems                                                               
differentiating between  electronic communication and  written or                                                               
verbal communication.                                                                                                           
                                                                                                                                
MR.   STEINER  opined   that  differentiating   those  types   of                                                               
communication relates  to the  immediacy of  both the  impact and                                                               
response. For  example, it's hard  to threaten  imminent physical                                                               
injury through a  letter, he said. Including those  runs the risk                                                               
of criminalizing things that aren't meant to be criminalized.                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI  asked if he sees  any constitutional issues                                                               
because threatening  to damage  a person's  property in  a letter                                                               
inflicts  the same  amount of  fear as  making the  threat in  an                                                               
email,  but one  person hasn't  committed a  crime and  the other                                                               
person has.                                                                                                                     
                                                                                                                                
MR.  STEINER  replied  it's  a   policy  question.  As  currently                                                               
drafted,  it's   fairly  broad  and   opens  the   potential  for                                                               
prosecutions of cases that might not otherwise be prosecuted.                                                                   
                                                                                                                                
2:59:04 PM                                                                                                                    
CHAIR COGHILL  asked the  sponsor, the  public defender,  and the                                                               
Department of  Law to think  about whether implementing  this law                                                               
might  inadvertently cause  further damage  to a  victim who  has                                                               
already been traumatized by bullying.                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI said  it's a good point and  it appears that                                                               
many other states require school  districts to adopt policies. He                                                               
questioned whether that might be a better approach.                                                                             
                                                                                                                                
CHAIR COGHILL held SB 128 in committee.                                                                                         

Document Name Date/Time Subjects
SB 128 Sponsor Statement.pdf SJUD 2/19/2014 1:30:00 PM
SB 128
SB 128 Cyberbullying Fact Sheet.pdf SJUD 2/19/2014 1:30:00 PM
SB 128
SB 128 Letter of Support Briscoe.pdf SJUD 2/19/2014 1:30:00 PM
SB 128
SB 128 Louisian HB 1259.pdf SJUD 2/19/2014 1:30:00 PM
HB1259
SB 128
Letter of Support - NFIB.PDF SJUD 2/19/2014 1:30:00 PM
SB 110
Letter of Support - Office of Victims' Rights.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Court System Memo - June 2012.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Dept of Law Report - March 2013.PDF SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Section Analysis.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Sponsor Statement.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110-LAW-CRIM-02-14-14.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110-DOA-OPA-02-14-14.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110-DOA-PDA-02-14-14.pdf SJUD 2/19/2014 1:30:00 PM
SB 110