Legislature(1999 - 2000)
05/13/1999 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 34-REPORTING CRIMES AGAINST CHILDREN REPRESENTATIVE FRED DYSON, prime sponsor of the measure, gave the following overview of the bill. As this country has moved from common law and precedent to statute law over the last 130 years, the duty to assist has largely disappeared from our legal system. When a girl was molested and murdered in a Las Vegas restroom in the recent past, others knew what was going on and did nothing to assist her. Eleven other states have some form of duty to assist legislation in place or in process. HB 34 is an attempt to establish a duty to aid, and if one cannot assist the victim, he/she is required to report the offense to someone who can. HB 34 allows a positive defense for not assisting if the observer fears for his/her safety. Critics have cautioned that HB 34 might have a chilling effect on people's willingness to come forth as witnesses. He disagrees and believes that through judicial discretion, this law will rarely be adjudicated. SENATOR DONLEY commented that committee members spent a lot of time on the misprision bill, especially on the provision that a person could be imprisoned for up to one year when he/she did not commit a crime but just failed to report a crime. He said he remains concerned that HB 34 makes the offense a class A misdemeanor. Number 200 REPRESENTATIVE DYSON replied the bill originally set the offense as a class C felony, which would have carried a penalty harsher than that for the actual crime committed. He stated as a professional mariner, he is required to go to the rescue of vessels in distress under penalty of law. He noted aviators, police, fire, and military personnel have the same requirement, and that the Alaska Legislature enacted a law which makes it a misdemeanor to not go to the aid of a policeman in distress who requests help. He maintained precedent exists in federal and state law for the duty to assist. He asserted that not going to the aid of a child who is being raped or murdered is morally wrong. He added that Senator Pearce introduced a similar bill; he and she agreed prior to the session to work both of them through the process. He chose to limit his bill to crimes against children because he believes the sense of responsibility for a helpless other is greatly enhanced when a child is being maltreated by an adult. SENATOR DONLEY remarked that he wants to make this legislation work but hard questions remain. He asked how one would deal with a case in which a person heard from another that a crime was taking place: would they be considered a criminal because they have second-hand knowledge that a crime may have been committed? REPRESENTATIVE DYSON answered that a provision on page 1, line 8, limits the requirement to witnesses. Number 252 SENATOR HALFORD asked if anyone heard the discussion on the issue of self incrimination during the hearing on Senator Pearce's bill [SB 5]. CHAIRMAN TAYLOR said it appears part of that issue is addressed on page 2 of HB 34, in which the requirement does not apply to a person who feels he/she is at risk if they reveal information. REPRESENTATIVE DYSON asked Mr. Luckhaupt or Ms. Carpeneti to address that question. He stated HB 34 will only apply in extreme cases. He noted he believes that our laws, in addition to restraining conduct, are a way to restate our cultural values. Number 270 MR. JERRY LUCKHAUPT, legislative counsel, explained the self incrimination issue is dealt with in HB 34 in the same way it was dealt with in Senator Pearce's bill. HB 34 requires reporting by someone who witnesses a crime being committed by another person. The fact that the offender does not have to report eliminates any possibility of infringement upon a person's right to remain silent. SENATOR HALFORD asked about the relationship of this bill to accessory before or after the fact, or other laws that might be parallel prosecutions. MR. LUCKHAUPT asked Senator Halford to elaborate. SENATOR HALFORD noted a person has a right not to do something if it would tend to incriminate that person on any legal standard or anything to do with the charge. For example, he questioned whether a person who is drunk in public could refuse to report something as horrible as a rape or murder because that person is trying to protect himself from being charged with public drunkenness. MR. LUCKHAUPT replied that is an interesting question because even though the Court of Appeals ruled in two instances that Mr. Hazelwood could not be convicted of discharging oil, the Alaska Supreme Court twice reversed that Court and said he could be based on the reporting statute, even though that requirement exposed him to criminal liability. The evidence obtained to convict him of discharging oil was obtained because of his report. In some ways, even if a person is an accessory before or after the fact, that person still has a right to argue to the court that their failure to report was protected because they would have exposed themselves to other criminal liabilities. SENATOR HALFORD said he is not sure the bill can be amended to fix that. He said what gave him the most grief about SB 5 was the requirement that a parent report a crime against his/her child which would target the parent as a potential witness. He stated the self incrimination question will substantially limit the effect of the bill. MR.LUCKHAUPT responded that Representative Dyson and his staff have not been too concerned about making sure they provide for all of the possible permutations and ensure that everyone on the fringes can be prosecuted. They are more concerned with catching the more egregious cases and reaching conduct like the case in Nevada that was not prosecutable. He disagrees with Mr. McCune's assessment that the same conduct that occurred in Nevada could have been prosecuted in Alaska. In Alaska statute regarding being an accessory after the fact, the person must intend to aid the person in getting away with the crime. He repeated that the intent of Representative Dyson's staff is to reach the egregious conduct and to encourage people to report, especially when the crime is occurring. This may discourage some reports, in that people who do not report at the time may not come forward after the fact because they fear prosecution. SENATOR HALFORD said a person would have to be given immunity otherwise the late report would trigger the self incrimination protection. REPRESENTATIVE DYSON answered that is true, except there is the defense of fear of harm or that the person was not aware at the time that a crime was being committed. He said his guess is that the person would be offered immunity. SENATOR HALFORD noted a horrible result could occur if a person was given immunity early in the case but come to find out that person committed the offense. Number 376 REPRESENTATIVE DYSON responded every summer he hears a distress signal on the radio while he is fishing. If he did not respond, he could be prosecuted. He said our culture has decided that he has a responsibility to rescue adults in a boat, so it can surely decide that adults are required to help a child who is being raped or killed. CHAIRMAN TAYLOR asked about the definition of the term "serious physical injury." MR. LUCKHAUPT replied that definition is contained in AS 11.81.900, and reads, "physical injury caused by an act performed under circumstances that create a substantial risk of death" or "physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy." He noted that definition contains a fairly high standard, as opposed to physical injury which means any action that causes pain. CHAIRMAN TAYLOR pointed out the committee worked hard to limit SB 5 to specific crimes. Number 400 BLAIR MCCUNE, Deputy Director of the Alaska Public Defender Agency, made the following comments via teleconference. A great deal of work has gone into this bill and it represents the best possible job that can be done with it, and it is morally correct, however, the present system in Alaska law is a better alternative. AS 11.56.770, Hindering prosecution in the first degree, is more applicable to the issue of being considered an accessory and could have been used to prosecute the man who did not report the crime in Nevada. Using the accessory statute, the state would have to prove that the person intended to promote or facilitate the commission of the crime, a higher standard. Alaska's current system accounts for these crimes in a clear way, and from a practical, criminal law point of view, Alaska's laws are well thought out. CHAIRMAN TAYLOR asked the definition of "a timely manner." He asked if the crime of not reporting attaches three weeks after the crime occurred, whether one would run into the circular problem of fifth amendment guarantees. MR. MCCUNE told Chairman Taylor he was not aware of another statute that uses the word "timely." He thought the intent of the House Judiciary Committee was that immediately is too soon. He agreed that a circular problem could occur. REPRESENTATIVE DYSON stated that question was raised by several rural legislators who were concerned that many people in rural Alaska have no access to a telephone. The intent was to allow those people to report as soon as they can reasonably get to a phone. CHAIRMAN TAYLOR said a person might go through two or three weeks of angst, trying to decide whether to turn a friend in for disciplining her children and causing serious physical harm. If the crime came to the authorities' attention during that time and they began to investigate and asked the person for information, they would have to disclose, at the time of the interview, that the person is liable to spend one year in jail for not reporting. REPRESENTATIVE DYSON reminded committee members that teachers and counselors are required to report child sexual abuse. He asked if anyone could discuss how those cases are handled in which the teacher does not report immediately. MR. MCCUNE replied he has never handled such a case. Number 500 MS. ANNE CARPENETI, Assistant Attorney General, informed committee members that AS 47.17.020 requires various people, who are required to report, to do so immediately to the nearest office of the Department of Health and Social Services. CHAIRMAN TAYLOR asked what happens if they fail to do so. MS. CARPENETI replied the offense is a class C misdemeanor. She noted she is not familiar with any prosecutions that have occurred. She stated that although everyone should help children who are being victimized, a lot of problems arise from making it a crime not to. Existing statutes forbid one from helping another who has committed a crime. The Department of Law's main concern with HB 34 is the witness problem because once a witness is lost, they are probably lost for good. The possibility of granting immunity is not a good practical answer for the reasons that Senator Halford stated, because offering immunity often bogs down an investigation and because testimony from that witness is not nearly as persuasive. She maintained that although few people will be prosecuted under this bill, the witness problems will be there every time. The Department of Law has suggested that if this approach is going to be taken, it should very limited at first to see what affect it has on witness cooperation. CHAIRMAN TAYLOR asked if the Department of Law feels the list of crimes contained in HB 34 is too broad. MS. CARPENETI stated it is a lot narrower than it was, but the Department of Law has said from the start that it would prefer the bill only apply to murder and kidnap cases. She added the Department of Law has worked hard with Representative Dyson to make the bill much narrower than it originally was. CHAIRMAN TAYLOR indicated he is concerned about multiple victims and victimizing a victim through this process, especially in domestic violence situations. A husband may be victimizing the wife and children. In such a case the wife could be guilty of hindering a prosecution for failing to report. REPRESENTATIVE DYSON emphasized that a positive defense was included in the bill for that reason. In addition, the language was clarified to ensure that a victim is not prosecuted for not reporting. REPRESENTATIVE DYSON apologized that HB 34 does not really get at what he wants - and that is for people to intervene in a crime in process. Once he started down that road, the bill needed to allow for those who feel incapable of intervening, in which case the reporting requirements came in. CHAIRMAN TAYLOR noted there are two ways to get people to act: punishment and reward. He said he has had interesting conversations with the people who run the crime stoppers program, and learned that in certain instances, one person will turn in another to get a reward even though that person played an active part in the crime. He said that program runs into all of the nuances of human behavior. He asked Ms. Carpeneti how the legislation should be limited so that the Department of Law would be more comfortable with it. MS. CARPENETI suggested eliminating the material on page 1, line 12, to page 2, line 6, or, if the committee wanted to include the crime of rape, eliminate the material from page 2, line 1, to page 2, line 6. The bill would then apply to the crimes of murder, sexual assault in the first degree under a rape situation, and kidnaping. TAPE 99-33, SIDE B CHAIRMAN TAYLOR asked if rape would include incest. MS. CARPENETI said it would not but it could cross reference the statute. CHAIRMAN TAYLOR said although he understands Ms. Carpeneti's suggestion, all of the inherent problems about witnesses would remain. MS. CARPENETI said that is correct and that if any legislation is adopted similar to HB 34, the same problems will occur and they far overpower the social value of making the statement that we are morally obliged to protect those who are least able to protect themselves. CHAIRMAN TAYLOR indicated if anyone is ever prosecuted under HB 34, the case would be appealed to get some resolution to the constitutional issues discussed today. REPRESENTATIVE DYSON repeated that between six and 11 other states have gone down this road. Cases in those states may be appealed before any in Alaska, which would be helpful. Also, federal legislation has been introduced that says that several types of federal funds that flow to states will be withheld if states do not have some kind of a duty to aid children law. Number 541 MR. LUCKHAUPT pointed out some of the cases referred to by Chairman Taylor, such as multiple victims, are already being prosecuted as reckless endangerment offenses. Last summer in cases in Anchorage, several spouses plead out to reckless endangerment for engaging in conduct that exposed another person to substantial risk of physical harm. He noted the same Fifth Amendment concerns apply to those cases. MR. LUCKHAUPT said although the reporting requirement already applies to educators and health practitioners, those people often agonize over their decision to report. Society has made it a crime to not report, however prosecutors have not been willing to charge those people with crimes if they do not. Massachusetts enacted a law requiring people to report sexual assaults and Rhode Island enacted a law requiring people to report sexual assaults, robberies, murders, and kidnaping. In his research, he was unable to find cases that established that those laws could not have been applied. His personal belief is that the law does not get applied often. The states of Vermont and Minnesota both require that people come to the aid of other people at any time; inaction can result in a misdemeanor. MS. CARPENETI commented that although it is interesting and useful to talk about the reporting statutes in Title 47, teachers and medical professionals are not witnesses to the crime, therefore the risk of losing a witness who might testify is not there nor is the problem of affecting witnesses who will not come forward at all because of the possibility of self incrimination. SENATOR DONLEY asked Ms. Carpeneti if she believes the penalty should be a class A or a class B misdemeanor. MS. CARPENETI said a class A misdemeanor is an appropriate penalty because it is one step below hindering prosecution, which is a class C felony. SENATOR DONLEY asked what privileges a person loses when convicted of a misdemeanor. MS. CARPENETI said no specific list exists but she could get Senator Donley the information. MR. LUCKHAUPT informed committee members a person with two misdemeanor convictions within six years cannot get a concealed weapons permit. CHAIRMAN TAYLOR noted domestic violence convictions limit a person's ability to get a firearm under federal law. MR. LUCKHAUPT stated the only offense that would aggravate the sentence for a second offense by statute is in regard to fourth degree assault. Number 457 SENATOR DONLEY moved CSHB 34(FIN) from committee with individual recommendations. There being no objection, the motion carried. The committee took a brief at-ease. CHAIRMAN TAYLOR announced HB 225 was referred to the Senate Judiciary Committee, and that it is his intent to meld SB 109 into it and use HB 225 as the working document of the committee. He noted both bills would be taken up tomorrow. SENATOR DONLEY asked Brooke Miles if she had seen the committee substitute for SB 109. Number 440 MS. MILES stated APOC commissioners have not had the opportunity to review the changes made to SB 109 but that APOC staff have several questions. Section 3 states that poll results are not contributions. She asked if the second sentence on page 2, line 9, concerning the results of the poll being limited to issues, is to be read in conjunction with the first sentence so that APOC will be responsible for determining whether the poll was designed primarily to benefit a candidate. SENATOR DONLEY asked Ms. Miles what her interpretation of that provision is. He noted it appears to be a sentence that stands alone. MS. MILES said she also sees it as a sentence that stands alone. She added the issue polls are completely different from the other polls in that they are not issued to benefit a candidate. SENATOR DONLEY remarked the sentence specifies the results of a poll limited to issues that does not mention any candidate. CHAIRMAN TAYLOR pointed out he understands the distinction between the issue poll which does not mention a candidate, however the previous sentence states that a poll that was provided to a candidate but was not designed or done primarily for the benefit of that candidate is not a contribution. He asked how push polls fit within this legislation. SENATOR DONLEY noted this particular provision is written to deal with communicating results of polls to candidates. CHAIRMAN TAYLOR questioned whether the results of a poll, which the popularity of the candidates, would be considered a contribution if given to one candidate. SENATOR DONLEY replied if the poll is about issues, its results are not a contribution because of free speech. If the poll was primarily designed to benefit a candidate, then its results would be considered a contribution. CHAIRMAN TAYLOR asked how a poll would be designed to benefit a candidate. SENATOR DONLEY answered a poll could contain questions asking the respondent if he/she would be likely to vote for a candidate if the candidate supported a specific issue. CHAIRMAN TAYLOR asked how a push poll would be interpreted. SENATOR DONLEY said it would be covered under existing law so if it was targeted against a specific candidate by another candidate it would be considered a contribution to the benefitting candidate. CHAIRMAN TAYLOR argued it would have to be shown to have been specifically designed to benefit a certain candidate. SENATOR DONLEY asserted that the provision only applies to the results of a poll being provided to a candidate, and one would not give the results of a push poll to the person he/she conducted the push poll against. MS. MILES indicated a regulation specifically says that polling information is a contribution consistent with other types of information or data provided to a candidate. SENATOR DONLEY said the provision in HB 225 clarifies that the issue type of information gathered from a poll should not be considered a contribution because that is a matter of free speech. He repeated if the issue poll is designed for the benefit of a candidate, then it should be considered a contribution. CHAIRMAN TAYLOR asked if a candidate would be in violation if ARCO, for example, did a poll to determine where the public stood on ten issues, and gave the results to certain candidates that it had already contributed the maximum donation to. SENATOR DONLEY said that is a powerful free speech question but that no court would view the transmission of public policy information as illegal. He added if the poll specified a candidate or was designed to benefit that candidate, then maybe the First Amendment protections would not apply. MS. MILES noted under current law ARCO is not supposed to be making contributions because it is a corporation. CHAIRMAN TAYLOR questioned whether ARCO could legally contribute the results of a poll to a candidate. SENATOR DONLEY said that also violates the First Amendment so the statute needs to be clarified to say that should not be the situation. CHAIRMAN TAYLOR stated it is not clear in the bill. SENATOR DONLEY commented the polling issue has always been a difficult problem. One cannot tell others they cannot communicate about issues otherwise free speech rights are violated. CHAIRMAN TAYLOR announced HB 225 would be taken up the following day.