Legislature(1999 - 2000)

02/24/1999 01:37 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                  SB 5 - MISPRISION OF FELONY                                                                                   
SENATOR DAVE DONLEY presented a work draft for SB 5 that                                                                        
establishes the crime of misprision and makes it applicable to                                                                  
unclassified felonies and felony crimes against a person. The bill                                                              
makes the crime of misprision a class A or B felony, depending on                                                               
the severity of the crime witnessed. This version adds an                                                                       
affirmative defense for witnesses who do not report a crime in a                                                                
timely manner out of fear they may be in danger if they do so, and                                                              
specifies that the state need not prove a person knew the class of                                                              
felony they witnessed in order to be prosecuted under this statute.                                                             
Number 052                                                                                                                      
SENATOR DONLEY moved the adoption of work draft M(Luckhaupt) as the                                                             
committee substitute. Without objection, the committee substitute                                                               
was adopted.                                                                                                                    
MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender                                                                 
Agency, said the bill conflicts with the privilege of self-                                                                     
incrimination, which gives any person who fears they may be charged                                                             
with an offense the right not to report the crime. SB 5 may result                                                              
in requiring a person who has nothing to do with an offense being                                                               
required to report it, while a person with some involvement in a                                                                
crime would not.                                                                                                                
MR. MCCUNE proposed Alaska has other statutes, such as "hindering                                                               
prosecution," with which to prosecute a person who renders                                                                      
assistance to a criminal by providing transportation, money, or                                                                 
Number 100                                                                                                                      
SENATOR PEARCE asked how Alaska would prosecute the Nevada case in                                                              
which a young man witnessed, but did not participate in a crime.                                                                
MR. MCCUNE replied in that case the young man provided                                                                          
transportation to the perpetrator.                                                                                              
CHAIRMAN TAYLOR expressed concern that the intent of this bill is                                                               
to criminalize behavior similar to "abetting" a criminal, or being                                                              
an accessory to a crime, without actually participating in the                                                                  
MR. MCCUNE explained to aid or abet a criminal involves complicity                                                              
in the crime and criminal intent. A person convicted as an                                                                      
accessory can be punished in the same manner as the principal                                                                   
perpetrator. CHAIRMAN TAYLOR asked if the hindering prosecution                                                                 
statute requires intent and MR. MCCUNE replied it requires intent                                                               
to hinder the apprehension or prosecution of a criminal. CHAIRMAN                                                               
TAYLOR commented that the level of intent in SB 5 is one level                                                                  
lower than that.                                                                                                                
SENATOR PEARCE indicated her concern with situations of abused                                                                  
women and children where there is knowledge and implicit support of                                                             
the abuse by family and community members.  Part of her intent with                                                             
SB 5 is to see these cases prosecuted. She said she has no answer                                                               
to the self-incrimination question, but  this is a widespread                                                                   
problem within Alaska and, "I'm not convinced that we could use                                                                 
'hindering prosecution' for the sorts of cases that I am thinking                                                               
about . . . "                                                                                                                   
SENATOR PEARCE remarked that it is unfair to allow children to be                                                               
abused because of  a protection from self-incrimination. "I don't                                                               
care what the Constitution says in this particular case - it                                                                    
doesn't work for me in this case."                                                                                              
CHAIRMAN TAYLOR said authorities are often constrained by a pattern                                                             
within dysfunctional families that keeps abuse from being reported.                                                             
He asked, "Are we going to be imprisoning moms because they didn't                                                              
go forward earlier?" SENATOR PEARCE replied the language on lines                                                               
12-14 of page 1 was inserted to provide an affirmative defense for                                                              
most of those cases, but it does not cover cases in which both                                                                  
parents should be prosecuted. She said, "If either parent stands by                                                             
and watches while the other parent abuses the child, as far as I am                                                             
concerned, both parents should be prosecuted in some manner."                                                                   
CHAIRMAN TAYLOR mentioned SENATOR HALFORD'S concern about personal                                                              
safety. SENATOR PEARCE said language had been inserted into the                                                                 
bill to deal with that "fear factor."                                                                                           
Number 288                                                                                                                      
SENATOR HALFORD explained there is another factor; the children                                                                 
themselves do not come forward for fear of losing one of their                                                                  
parents, despite how deviant that parent may be. He said he did not                                                             
want to force the loss of both parents or compel the family to go                                                               
to court, instead of getting counseling. SENATOR PEARCE did not                                                                 
dispute this point, but said, "We have to put some faith in the                                                                 
prosecutors' . . . ability to decide which cases should be                                                                      
prosecuted and which ones shouldn't." She said SB 5 would provide                                                               
a method to prosecute those who should be prosecuted. SENATOR                                                                   
HALFORD concluded this is a difficult area of discussion.                                                                       
SENATOR PEARCE agreed this is a difficult subject, but emphasized                                                               
she appreciated having a full discussion on the bill. She proposed                                                              
that in some cases those who should be prosecuted are family                                                                    
members but not necessarily the parents of the abused child.                                                                    
CHAIRMAN TAYLOR asked how the bill will affect counselors,                                                                      
preachers, police officers and school teachers; the bill has a wide                                                             
sweep. SENATOR HALFORD said the bill only exempts lawyers.                                                                      
Number 365                                                                                                                      
MS. ANNE CARPENETI, representing the criminal division of the                                                                   
Department of Law, thanked the committee for the work done on the                                                               
bill in response to the concerns of the Department.                                                                             
MS. CARPENETI reported the bill is still too broad and requires                                                                 
victims of rape and domestic violence as well as spouses of child                                                               
abusers to report these crimes or be subject to a criminal                                                                      
violation. The bill forces parents to report spouses to the                                                                     
criminal justice system, rather than allowing them the choice to                                                                
pursue counseling or seek another solution. She suggested limiting                                                              
the offenses covered by SB 5 to murder, attempted murder,                                                                       
kidnaping, arson and maybe first-degree sexual abuse of a minor.                                                                
The nature of these crimes offset some of the concerns raised                                                                   
because these are the most serious crimes where victims are unable                                                              
to be heard.                                                                                                                    
SENATOR TORGERSON asked how a victim of domestic violence or rape                                                               
could be prosecuted if the victim's testimony would be the evidence                                                             
of the crime. MS. CARPENETI said a person is required to report an                                                              
offense unless he or she is the perpetrator and therefore covered                                                               
by the right against self-incrimination. SENATOR HALFORD said                                                                   
parents who know their child is being abused are probably violating                                                             
present law but they are protected by the privilege against self-                                                               
incrimination. Consequently, "If they are the good parent, who                                                                  
didn't know and now finds out and goes to a psychological                                                                       
professional . . .  and takes their advice . . . you can't claim                                                                
self incrimination - so the self-incrimination only protects the                                                                
guilty; it doesn't protect the parent who is truly operating in the                                                             
best interests of the child."                                                                                                   
SENATOR PEARCE testified the intent of SB 5 is not to compel a rape                                                             
victim to make a report, but to require a witness of such a crime                                                               
report it.                                                                                                                      
SENATOR PEARCE suggested there has to be a way to get at recidivist                                                             
pedophiles and protect "the next child, or the next child or the                                                                
next child." She said it seems the committee is considering sexual                                                              
abuse of a child by a non-parent a worse crime than sexual abuse by                                                             
a parent. She does not think anyone subscribes to this view but                                                                 
said, "That is what happens if we don't somehow deal with the                                                                   
parent - they are just as culpable . . . "                                                                                      
Number 479                                                                                                                      
SENATOR HALFORD cited a real life example to illustrate his point                                                               
that, "it is very, very difficult to make a parent take an action                                                               
against their child for the protection of the future."                                                                          
SENATOR DONLEY asked if deleting the portion  of SB 5 relating to                                                               
class B felonies would give the bill a better focus. ANNE CARPENETI                                                             
said yes.                                                                                                                       
Number 525                                                                                                                      
SENATOR DONLEY moved Amendment #1: insert the phrase, "other than                                                               
a victim" on page 1, line 5 after the word "person." After some                                                                 
discussion, he modified his motion to insert the phrase after the                                                               
word "person" on line 4, page 1. Without objection, the amendment                                                               
was adopted.                                                                                                                    
SENATOR DONLEY moved Amendment #2: delete from page 1, line 6, and                                                              
page 1, line 8, and page 2, line 7 "or class B felony," to focus                                                                
the bill on very serious crimes.                                                                                                
Number 557                                                                                                                      
SENATOR HALFORD suggested that the bill should specify the exact                                                                
crimes covered rather than use the statutory reference. He asked                                                                
how many crimes would fall under the scope of the bill. After                                                                   
discussion, the consensus of the sponsor, the Department and the                                                                
committee was that the list of crimes would not be too long to                                                                  
specifically name them in the text of the bill. SENATOR PEARCE                                                                  
stated that her concerns would be covered if the bill encompassed                                                               
unclassified felonies.                                                                                                          
TAPE 99-12, SIDE B                                                                                                              
Number 592                                                                                                                      
SENATOR DONLEY withdrew Amendment #2. He suggested the committee                                                                
consider a conceptual amendment to limit the bill to unclassified                                                               
felonies and first-degree arson, and list the offenses specifically                                                             
in the text of the bill. SENATOR HALFORD moved SENATOR DONLEY's                                                                 
idea as Amendment #3. Without objection, Amendment #3 was adopted.                                                              
SENATOR ELLIS asked how the new requirement for "timely" reporting                                                              
in the bill would compare with the previous requirement for                                                                     
immediate  reporting. SENATOR DONLEY observed that the requirement                                                              
for timely reporting allows for a more flexible application. MS.                                                                
CARPENETI agreed.                                                                                                               
Number 553                                                                                                                      
CHAIRMAN TAYLOR reflected that the crime created in this bill is                                                                
difficult to differentiate from conspiracy and accessory. He said                                                               
the committee will work on another draft of SB 5.                                                                               

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