Legislature(1999 - 2000)

05/13/1999 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
            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.                                                                                                                            

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