Legislature(1993 - 1994)
02/16/1994 01:32 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:32 p.m. and introduced SB 252 (POSSESSION OF CHILD PORNOGRAPHY) as the first order of business before the committee. SENATOR MILLER, prime sponsor, stated that SB 252 "closes the loop" by making the possession of child pornography a class B misdemeanor. Currently, producing and selling child pornography is unlawful while owning child pornography is not a crime. He pointed out that the U.S. court addressed the pornography issue when a New York statute that banned the possession or viewing of child pornography was upheld; local state laws are constitutional in this area. He noted that the Department of Corrections has a proposed amendment to SB 252. He believed that pornography is a plague on society, especially child pornography. SENATOR LITTLE expressed concern about the use of "knowing" and said she would address that to the drafter. ERMALEE HICKEL supported and encouraged passage of SB 252. She believed that pornography should not have a place in our society and that child pornography is an outrage. She explained many staggering statistics regarding abuse of children and sexual abuse; Alaska ranks number one in the nation in child sexual abuse. She noted that 1 in 3 girls and 1 in 7 boys will be sexually molested by the age of eighteen. Over 80 percent of child molesters admit to regular use of pornography. Approximately 1.2 million children are exploited every year in the production of child pornography and child prostitution. She asserted that legislation prohibiting the possession of child pornography makes a positive step towards protecting young people while sending a strong message to those who use such material. Number 110 Ms. Hickel informed the committee that she was a member of the National Enough is Enough Campaign which has made the public aware of illegal pornography and child pornography. She pointed out that Time and Newsweek had featured advertising which educate the p e p about the relationship between hard core pornography and sexual abuse of children. The National Enough is Enough Campaign is having a positive effect on changing the laws regarding obscenity and child pornography. She commended this organization for its work on behalf of America's children. She urged support of SB 252. She said now is the time to take care of our children before it is too late. BOB HEAD, Chairman of the State Human Relations Commission and Director of the American Family Association State of Alaska, noted that most of his comments were taken from a sound bite of a Commissioner who served on the Attorney General's Commission on Pornography. He began by defining child pornography and stating that it was unchallengable as evidence; furthermore, an adult who violates a child sexually is also unequivocably a child molester. He defined and characterized the "situational" and the "preferential" molester. The "preferential" molester, commonly known as a pedophile, seems to victimize many more children than the "situational" molester. He discussed the six step "life cylce" of child pornography which ultimately perpetuates the the cycle. He explained the various effects on children used in pornography, noting that many victims will be likely to become an abuser in this abuse cycle. Mr. Head informed the committee that some states have already made child pornography illegal. Such states consider this to be an effective defense against child molesters. He urged passage of SB 252, but with the first offense being classified as a class C felony not a class B misdemeanor. He suggested that the first conviction require registration on an inter-state law enforcement network, and tie that registration requirement to life-time probation which has been proven constitutional. Number 217 CHAIRMAN TAYLOR asked Mr. Head to which states or cases he was referring when he mentioned life-time probation and other enhancements to the penial system had been proven constitutional. BOB HEAD said that he would have to refer to the Commission's report on pornography for such details. CHAIRMAN TAYLOR noted that the Commission's report would be added to the packets. VIRGINIA PHILLIPS, Enough is Enough Member, supported SB 252 for the safety of Alaskan children. She explained that a recent study from the University of New Hampshire illustrates a strong corelation between the use of child pornography and sexual abuse of children. Every child in the neighborhood of a user of child pornography becomes a potential victim of sexual abuse due to the pornography users insatiable sexual appetite for children. She stated that children used in pornography are harmed physically, mentally, and emotionally; their childhood innocence is taken from them. Ms. Phillips explained that SB 252 may not withstand a court challenge for two reasons: Alaska's lack of statute defining what is pornographic and obscene, the 1969 U.S. Supreme Court ruling that private possession of obscene material cannot be constitutionally made a crime. She encouraged passage of SB 252 with the the class B misdemeanor being changed to a felony. CHAIRMAN TAYLOR requested copies of Ms. Phillips testimony. ROBERTA BEEBE supported SB 252 because she believes that pornography exploits children from infancy up to teens. Pornography eliminates the ability of an innocent childhood free of sexual knowledge. She explained that pornography degrades the perpetrator and perpetuates further victimization of other children. She expressed the need to make SB 252 a felony. Number 286 DIANE SCHENKER, Department of Corrections, explained that her amendment addressed material that is used to provide sex offender treatment which could be construed as child pornography. Exposure to pornographic material produces an accurate assessment of what the offenders risk level is and to what population. She stated that the amendment would exempt those providing plethysmograph assessments during sex offender treatment which meets the standards of AS 33.30.011. SENATOR LITTLE asked if a sex offender treatment program that was not a state affiliate would still be exempt under this amendment. DIANE SCHENKER explained that many sex offender treatment programs provided in communities are doing so under contract with the Department of Corrections. She noted that the Department of Corrections has a board who makes sure that the programs are meeting approved provider status minimum standards. She stated that a provider giving sex offender treatment who was not approved by the Department of Corrections would not be covered under this proposed amendment. She did not believe there are many such cases. CHAIRMAN TAYLOR stated that a provider would be required to meet the minimum standards in order to possess the materials discussed under this amendment. The provider would not have to be affiliated with anyone. SENATOR LITTLE moved to adopt the amendment by the Department of Corrections. Hearing no objections, the amendment was adopted. SENATOR LITTLE asked why the "knowing" provision on line 6 could not be moved to line 5 after "person." She inquired as to why the "knowing" clause was placed in the legislation the way it was. Number 353 JERRY LUCKHAUPT, Legislative Counsel, stated that the "knowing" requirement is placed on line 6 in order to be consistent with the current distribution of child pornography statute. He acknowledged possible difficulties with proving that the offender knew that child involved in the pornographic production was under the age of eighteen at the time. He explained that in many cases that problem would not occur due to the general intent level of "knowing." Mr. Luckhaupt said that there are problems when attempting to regulate or specify a division between constitutional materials an individual can keep in their own home and those that are not. Regular pornography can be possessed in the home; it is not unconstitutional. He pointed out that the U.S. Supreme Court has drawn the line with child pornography; the possession of child pornography in the home can be prohibited. He explained that the "knowing" requirement should assure that SB 252 is construed as constitutional. Without such a clause there would be an increased potential for a challenge to include possession of material of those over eighteen, which cannot be regulated. SENATOR LITTLE said that she was thinking of adding another "knowingly," but now believes that could weaken the bill. JERRY LUCKHAUPT believed that "knowing" was in an appropriate place. He recognized the possibility to draft this legislation in a broader manner; however, drafting SB 252 broader would increase risks. He did not see the need to add "knowing" to the clause referring to the possession of child pornography. Currently, the language follows previous legislation regarding prescribed possession, distribution, or intent to distribute child pornography. He noted that there is a Federal Statute prohibiting the possession of child pornography. He explained that Attorney General's Office believed that most child pornography possession cases would surface during other investigations when a search warrant was executed. SENATOR JACKO asked if SB 252 applied to an individual who was eighteen or under and married. JERRY LUCKHAUPT pointed out that with an individual under the age of eighteen there is no distinction regarding whether that individual is a spouse of someone who possesses or takes the photographs. There is currently no spousal defense provided under sexual exploitation of minor statutes. He noted that there is a spousal affirmative defense for sexual abuse of a minor, when the spouse of the offender. The legislature has not provided a statutory defense for sexual exploitation of a minor, or distribution of child pornography. He acknowledged the possibility that a court could read in some defense due to the lack of definition for "child" under Title XI. A minor that is the spouse of someone could be said to no longer be a child due to having a spouse. He inquired of the possibility that the committee may want to consider providing a general defense for the sexual exploitation of a minor statutes, distribution of child pornography statutes, the possession of child pornography statutes, or a spousal defense. Number 453 CHAIRMAN TAYLOR expressed concern with the lack of a definition of obscene and the excuse that in Alaska pornography could be classified as art. JERRY LUCKHAUPT observed that the term obscene is not used in SB 252. He recognized the problems with definitions of obscene. Currently, the Miller definition of obscenity is applied by the courts which addresses the violation of contemporary community standards, applies a purient interest, and the lack of any artistic value. He pointed out that SB 252 speaks to possession of visual or aural material depicting illegal conduct as described in AS 11.41.455. He did not believe there would be a problem in not defining obscene; potentially that would strengthen the statute. SENATOR DONLEY pointed out that lots of ordinary movies imply that teenagers are engaging in sexual activities; would possession of such a movie be a crime. SENATOR JACKO asked if it would also apply to plays. SENATOR DONLEY noted that the statutes refer to depicted conduct and simulated conduct. JERRY LUCKHAUPT stated that there is a defense provided for motion pictures for the distribution of child pornography in AS 11.61.125. He said that the committe may want to apply the same sort of defense for motion pictures for the mere possession of the material. He used Blue Lagoon as an example that distribution of that film would not violate the distribution of child pornography statute, although it involved or visually depicted lewd touching of the minor. AS 11.41.455 does not provide a defense for inducing or employing a minor to engage in or simulate illegal exploitation of a minor conduct; there is no defense for works of art, plays or anything such as that. SENATOR DONLEY posed the following situation. If a theatrical presentation employs adults to depict such unlawful conduct while the story refers to teenagers. He pointed out that the individuals who made the theatrical presentation did not break any law, but those who possess such a presentation about teenagers knowingly possess something that could be considered unlawful. Number 522 JERRY LUCKHAUPT explained that the proof process requires that the viewer has knowledge the presentation uses a person under eighteen in order to find the viewer guilty of possession of child pornography. The decision to exempt movie theaters under the distribution of child pornography statute probably used this same argument. He stated that the defense provided for movie theaters addresses concerns about the possibility of initiating a prosecution. That defense would prevent the charge from ever proceeding. SENATOR JACKO asked if any federal statutes address a spouse under the age of eighteen. JERRY LUCKHAUPT said that he did not remember any. Mr. Luckhaupt explained that part of the argument is that a spouse who takes photographs of their under age child and distributes them does harm to the other spouse. There is a need to protect the child in such a situation. Mr. Luckhaupt stated that the same argument could be used regarding possession. CHAIRMAN TAYLOR asked about the utilization of virtual reality regarding this legislation; would it be covered. JERRY LUCKHAUPT said that there would be a problem if a child under the age of eighteen had been employed. CHAIRMAN TAYLOR asked if cartoons that do not utilize anyone but that accurately depict situations as if it were children would be covered. JERRY LUCKHAUPT noted that there are other bills being introduced that speak to depiction of material harmful to minors where cartoons could apply. He said that they are requiring that a child under the age of eighteen years be employed or involved in an unlawful depiction or unlawful conduct which would not be the case in cartoons. He did not believe there would be any violation of SB 252 or the possession of child pornography statute. There would not be depictions of conduct outlawed in AS 11.41.455 because that statute does not use the referrence child. CHAIRMAN TAYLOR asked if there is a provision that would cover the creation of such imagery. He stated that if they use cartoons, they would not be charged. JERRY LUCKHAUPT said that if cartoons are used the individual would be able avoid legal action. Number 578 SENATOR DONLEY asked what was the age people can be married in Alaska. JERRY LUCKHAUPT said that under sixteen the court's permission is needed. Sixteen to eighteen years of age only requires parental permission. At eighteen years of age the individual can do as they wish. SENATOR DONLEY inquired of the presence of statutes defining a child as an emancipated minor or minor who is legally married. JERRY LUCKHAUPT explained that a minor can become emancipated at the age of sixteen by going before the court to recieve permission to become emancipated. An emancipated minor then has the ability to possess a firearm. TAPE 94-11, SIDE B Number 592 JERRY LUCKHAUPT pointed out that the word child is used in SB 252 when it is not used in the sexual abuse of a minor statutes. He seems to believe that provides an argument for why a charge under these statutes should not go forward against a spouse; however, there are no definite answers. CHAIRMAN TAYLOR asked what are the penalties for a class B misdemeanor and a class C felony. JERRY LUCKHAUPT believed that class B was less than thirty days or ninety days imprisonment and a $1000 fine or more if you are an organization. An organization or company that distributed child pornography could be fined the amount of money realized from the illegal activity which applies to all felonies and misdemeanors. The judge has the option of the set fine or the realized amount from the illegal activity. SENATOR DONLEY asked how safeguards could be added to parallel the other parts of the statutes that deal with this issue. JERRY LUCKHAUPT stated that the only safeguard was the defense provided for motion pictures regarding the distribution of child pornography. Mr. Luckhaupt noted that perhaps it would make sense to continue that defense by applying it to possession of child pornography. CHAIRMAN TAYLOR expressed concern with being able to distinguish between a motion picture such as Blue Lagoon and a sleazy video production both of which could be rented at a local video store. SENATOR DONLEY noted that some movies do more that depict, they show. He was concerned with the distinction between the implication of an illegal activity and the showing of the activity. JERRY LUCKHAUPT reiterated that the distribution of pornography statute, AS 11.61.125, provides a defense for acts that are an integral part of the exhibition or preformance of a motion picture which must be shown in a place where motion pictures are shown. CHAIRMAN TAYLOR noted the presence of backrooms which contain all sorts of bad material in video stores. He expressed the need to address such activities. The distributor in such a backroom operation should recieve some sanctions. JERRY LUCKHAUPT pointed out that the distribution statute does not address video dealers, therefore, there is no defense provided for them. He explained that if they know that a child was involved in production of the video would create problems for them. There does not appear to be a way to craft a statute due to the sensitivity of the area with all of the exceptions that would need to be meet. CHAIRMAN TAYLOR asked if Mr. Luckhaupt felt that the standards would hold up constitutionally. He referred to the Weaver and the Waco cases when relaying his lack of faith in prosecutorial discretion. He asserted that if they empower someone with this legislation, the legislation should meet the constitution without leaving so much leeway that the legislation could be thrown out. He stated that currently, he wanted to risk some prosecution which would allow litigation rather than continue to provide a loophole. Number 505 JERRY LUCKHAUPT noted that the Ohio statute that made the possession of child pornography illegal was as broad as this statute and the U.S. Supreme Court agreed. The Right to Privacy is the problem in Alaska; the U.S. Supreme Court used that provision under the U.S. Constitution, which is not explicitly stated, was used to strike down a Georgia statute that made possession of regular pornography illegal. SENATOR DONLEY said that the specific Right to Privacy offers comfort for unusual situations such as a married couple that are ages seventeen and eighteen may innocently fall into this. The Right to Privacy would be extended to their marriage so that they are constitutionally protected. He indicated that Alaska's Right to Privacy would prevent making criminals out of those who are not. He stated that he did not want to criminalize people unnecessarily. JERRY LUCKHAUPT was concerned that the Department of Corrections amendment may not address the situation that a psychiatrist could be giving plethysmograph treatment to an individual without the psychiatrist operating under a Department of Corrections contract or notifying them. CHAIRMAN TAYLOR pointed out that Ms. Schenker indicated that most professionals would be under the Department of Corrections or they would already meet the standards. SENATOR DONLEY asked if they could incorporate all the licensed professionals that are conducting this treatment. BRUCE GROSSMAN, testifying from Delta Junction, stated that he supports the state tightening statutes on child pornography, but the Department of Correction's amendment seems rather broad. He believed that child pornography is a problem in the Interior. He noted the importance of the previously mentioned safeguards provided by the Right to Privacy; however, the possession of child pornography does not need to be covered by statue. He supported the amendment with tighter language. CHAIRMAN TAYLOR asked which portion of the language would he suggest tightening up. BRUCE GROSSMAN expressed concern that this would not cover innocent family photos such as children bathing. He did not want this to be abused regarding such a situation. CHAIRMAN TAYLOR asked if Mr. Luckhaupt had any recommendations for modification of the amendment regarding Senator Donley's concerns. Number 421 JERRY LUCKHAUPT pointed out that the amendment refers to the minimum standards under AS 33.30.011(6) which could be applied to SB 252 in a manner that requires anyone offering voluntary treatment outside the corrections system to meet the Department of Corrections standards. The psychiatrist would have to learn those standards and modify the program to ensure that the standards were met. CHAIRMAN TAYLOR thought that any professional involved in this treatment would be familiar with the standards. JERRY LUCKHAUPT said that one would assume that since most of their clients would be from the corrections system. JERRY LUCKHAUPT indicated that an earlier draft included "under the direct supervision of a licensed professional" after "program" which would assure that a medical doctor or psychiatrist is involved. He did not believe the present amendment had a problem. SENATOR TAYLOR asked Mr. Luckhaupt what a class C felony would entail. JERRY LUCKHAUPT noted that distribution of child pornography is a class C felony. If the legislature decided that possession of child pornography was as dangerous as distribution they could make possession a class C felony. He explained that usually the legislature does stair steps which would place distribution as the greater offense. SENATOR TAYLOR inquired about the reasoning behind possession being a class B misdemeanor versus a class A. JERRY LUCKHAUPT informed the committee that he was working from a previous drafter's draft. SENATOR DONLEY asked if there was any other state law that criminalizes the mere possession of any other document type of non physically dangering substance. JERRY LUCKHAUPT explained that many of the subversive material laws that other states have are not present in Alaska since Alaska did not become a state until 1959. He did not know of any laws dealing with subversive material. SENATOR DONLEY asserted that this would be the first time that Alaska would make mere possession, in your own home, a crime besides drugs or weapons. He said that this would be a big step. Law enforcement would not be trained in this issue. He acknowledged the Department of Law's point that often these cases would occur when enforcing more serious crimes. JERRY LUCKHAUPT said that Alaska probably did have obscenity provisions before the criminal code was revamped. He offered to check out that possibility. SENATOR TAYLOR asked the committee if the offense should be a class B misdemeanor or a class C felony. SENATOR DONLEY said that since this legislation would be a big change that it should be taken cautiously. He supported SB 252 with the Department of Corrections amendment. SENATOR JACKO moved that SB 252 as amended be moved out of committee. Hearing no objections, it was so ordered.