Legislature(2005 - 2006)BUTROVICH 205

01/24/2006 08:30 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Moved CSSB 218(JUD) Out of Committee
Scheduled But Not Heard
           SB 218-CRIMINAL SENTENCING AND POLYGRAPHS                                                                        
8:40:16 AM                                                                                                                    
CHAIR RALPH SEEKINS announced SB 218 to be up for consideration.                                                                
The committee was hearing version I.                                                                                            
SENATOR  CON BUNDE,  bill  sponsor,  informed the  committee  that                                                              
Alaska  has the  highest per  capita  rate of  sexual assault  and                                                              
sexual  abuse of  minors. Rehabilitation  has  proven unlikely  so                                                              
longer sentences  seem necessary in order to  protect society. The                                                              
polygraph requirement  has worked well in other  states in getting                                                              
offenders  to abide  by their parole  agreements.  This is  not an                                                              
inexpensive  answer but  the current  cost to  society merits  the                                                              
8:42:38 AM                                                                                                                    
SENATOR GRETCHEN GUESS moved Amendment 1.                                                                                       
                      A M E N D M E N T 1                                                                                   
OFFERED IN THE SENATE                          BY SENATOR GUESS                                                                 
     TO:  CSSB 218(   ), Draft Version "I"                                                                                      
Page 7, line 18:                                                                                                                
     Delete "Act"                                                                                                               
     Insert "section"                                                                                                           
Page 7, line 19:                                                                                                                
     Delete the second occurrence of "Act"                                                                                      
     Insert "section"                                                                                                           
Page 7, line 20:                                                                                                                
     Delete all material and insert:                                                                                            
   "* Sec.  9. Sections 2  and 7 of  this Act take  effect July 1,                                                          
   * Sec. 10. Except as provided in sec. 9 of this Act, this Act                                                              
takes effect immediately under AS 01.10.070(c)."                                                                                
SENATOR  GUESS  explained at  the  request  of the  Department  of                                                              
Corrections  (DOC) the polygraph  portion of  the bill  would take                                                              
effect  in 2007.  Everything  else  would take  immediate  effect.                                                              
Hearing no objections, Amendment 1 was adopted.                                                                                 
8:44:19 AM                                                                                                                    
SENATOR GUESS moved Amendment 2.                                                                                                
                      A M E N D M E N T 2                                                                                   
OFFERED IN THE SENATE                          BY SENATOR GUESS                                                                 
     TO:  CSSB 218(   ), Draft Version "I"                                                                                      
Page 1, line 3:                                                                                                                 
     Delete the first occurrence of "and"                                                                                     
    Insert "; relating to sexual abuse of a minor; relating"                                                                  
Page 1, following line 5:                                                                                                       
     Insert a new bill section to read:                                                                                         
   "* Section 1. AS 11.41.436(a) is amended to read:                                                                        
          (a)  An offender commits the crime of sexual abuse of                                                                 
     a minor in the second degree if,                                                                                       
               (1)  being 16 years of age or older, the offender                                                                
     engages in  sexual penetration with  a person who is  13, 14,                                                              
     or 15  years of  age and  at least  three years younger  than                                                              
     the  offender,  or aids,  induces,  causes, or  encourages  a                                                          
     person who is  13, 14, or 15 years of age  and at least three                                                              
     years  younger   than  the  offender  to  engage   in  sexual                                                              
     penetration with another person;                                                                                           
               (2)  being 16 years of age or older, the offender                                                                
     engages  in sexual  contact  with a  person who  is under  13                                                              
     years  of  age or  aids,  induces,  causes, or  encourages  a                                                              
     person  under 13  years of  age to engage  in sexual  contact                                                              
     with another person;                                                                                                       
               (3)  being 18 years of age or older, the offender                                                                
     engages  in sexual  contact  with a  person who  is under  18                                                              
     years  of  age, and  the  offender  is the  victim's  natural                                                              
     parent, stepparent, adopted parent, or legal guardian;                                                                     
               (4)  being 16 years of age or older, the offender                                                                
     aids, induces,  causes, or encourages  a person who  is under                                                              
     16  years   of  age  to   engage  in  conduct   described  in                                                              
     AS 11.41.455(a)(2) - (6); [OR]                                                                                             
               (5)  being 18 years of age or older, the offender                                                                
     engages  in sexual  contact  with a  person who  is under  16                                                              
     years of age, and                                                                                                          
                    (A)  the victim at the time of the offense                                                                  
          is residing in the same household as the offender and                                                                 
         the offender has authority over the victim; or                                                                         
                    (B)  the offender occupies a position of                                                                    
          authority in relation to the victim;                                                                              
               (6)  being 18 years of age or older, the offender                                                            
     engages in sexual  penetration with a person who  is 16 or 17                                                          
     years  of age  and  at least  three  years  younger than  the                                                          
     offender, and  the offender occupies a position  of authority                                                          
     in relation to the victim; or                                                                                          
               (7)  being under 16 years of age, the offender                                                               
     engages in sexual  penetration with a person who  is under 13                                                          
     years  of age  and  at least  three  years  younger than  the                                                          
Page 1, line 6:                                                                                                                 
     Delete "Section 1"                                                                                                       
     Insert "Sec. 2"                                                                                                          
Renumber the following bill sections accordingly.                                                                               
Page 7, following line 14:                                                                                                      
     Insert a new bill section to read:                                                                                         
   "* Sec. 9. AS 11.41.438(a)(2) and 11.41.438(a)(3) are                                                                      
Renumber the following bill sections accordingly.                                                                               
Page 7, line 17:                                                                                                                
     Delete "Sections 3 - 6"                                                                                                    
     Insert "Sections 1, 2, 4 - 7, and 9"                                                                                       
Page 7, line 18:                                                                                                                
     Delete "secs. 3 and 5"                                                                                                     
     Insert "secs. 4 and 6"                                                                                                     
SENATOR GUESS explained  the amendment would take  sexual abuse of                                                              
a minor in the  third degree and move it up to  the second degree.                                                              
The  purpose is  to put  any crime  that is  either actual  sexual                                                              
penetration or attempt  at sexual penetration of a  minor into the                                                              
felony category.                                                                                                                
SENATOR BUNDE  added there  is a  distinction between  controlling                                                              
an  impulse  and  the more  egregious  act  where  penetration  is                                                              
8:46:09 AM                                                                                                                    
SENATOR HOLLIS FRENCH  clarified the committee was  moving what is                                                              
currently a C felony to a B felony level of conduct.                                                                            
SENATOR GUESS said yes.                                                                                                         
SENATOR  FRENCH cited  a  case wherein  an  Anchorage teacher  was                                                              
found guilty of  having sex with his students  and law enforcement                                                              
discovered at  the time there was  no crime against  it. Lawmakers                                                              
quickly  passed a  bill to  make it against  the  law. The age  of                                                              
consent in  the State of  Alaska is 16 years  of age but  a person                                                              
in a position  of authority should  not abuse that  authority over                                                              
a 16-year-old  girl.  He urged the  committee  to be mindful  that                                                              
conduct  such  as   that  would  now  become  a   class  B  felony                                                              
punishable by 10 to 15 years in prison.                                                                                         
8:48:41 AM                                                                                                                    
SENATOR  GUESS responded  she  does not  care.  She said  it is  a                                                              
policy  call for  the  Senate  Judiciary Standing  Committee.  The                                                              
issue is  what Alaskans value  in their  society. A person  with a                                                              
position  of authority causing  direct influence  over a  16-year-                                                              
old child  is a crime  because they would  be using  that position                                                              
to  get in  bed  with a  young  girl. She  maintained  that it  is                                                              
different  when  there  is  a  position   of  authority  involved,                                                              
causing it to be a very serious crime.                                                                                          
8:50:23 AM                                                                                                                    
SENATOR  BUNDE commented  the mental  duress that  a person  could                                                              
impose on a child  is stronger than physical force.  A person in a                                                              
position of authority should be held to a higher standard.                                                                      
CHAIR  SEEKINS  asked   whether  SB  218  would   change  the  age                                                              
differential of current statute.                                                                                                
SENATOR BUNDE  said no.  The three-year  age differential  remains                                                              
due  to the  consensual  situation  and  then the  parent  becomes                                                              
SENATOR FRENCH said:                                                                                                            
     There have  been cases where  a terrible crime  has been                                                                   
     committed with  an abuse of  authority and the  offender                                                                   
     needs to  go to prison  for a long  time. That is  why a                                                                   
     wide range  of possible sentences  is in the hands  of a                                                                   
     judge  who can  represent  the  community and  impose  a                                                                   
     serious  sentence  but  there   are  always  those  gut-                                                                   
     wrenching cases  that are near the line with  a girl who                                                                   
     is  17  years and  11  months  old,  maybe out  of  high                                                                   
     school, who  has made  a bad decision  and a coach  or a                                                                   
     counselor  or a university  professor  has had sex  with                                                                   
     that person and  it is a bad thing and no  one should do                                                                   
     it  and that person  should  be a sexual  felon, is  and                                                                   
     would be a  sexual felon under current law.  But I think                                                                   
     there  will  be troubling  cases  where you  might  step                                                                   
     back  and say,  "Ten years  in prison  is a  frightfully                                                                   
     long  time." I'm  just pausing  a little  bit before  we                                                                   
     take this  serious step so  that we have an  opportunity                                                                   
     to think about  the tough cases that come  down near the                                                                   
SENATOR BUNDE  admitted that  was an excellent  point. He  said he                                                              
had an  anecdotal conversation with  someone who found  himself in                                                              
the  position  with  the  age  difference   clause  and  when  the                                                              
relationship  ended, the man  had to register  as a  sex offender,                                                              
when in  his mind,  he was participating  in a willing  situation.                                                              
He  said  there is  the  option  of  pleading  down for  a  lesser                                                              
8:55:10 AM                                                                                                                    
CHAIR SEEKINS  said on the other  hand, it might lead  a person of                                                              
authority  to use more  discretion.  He bet that  every person  in                                                              
authority in the school system would be adequately warned.                                                                      
8:55:41 AM                                                                                                                    
CHAIR  SEEKINS  announced  with  no  objection,  Amendment  2  was                                                              
8:56:42 AM                                                                                                                    
SENATOR FRENCH  said there  was one  aspect of  the bill  that was                                                              
not discussed  last time the bill  was heard and he wanted  to ask                                                              
the sponsor  about it. He  asked about  the new crime  of "failure                                                              
to report  a sex offender  or child kidnapper"  and wanted  to put                                                              
the intent on the record.                                                                                                       
8:57:28 AM                                                                                                                    
SENATOR BUNDE  responded too  many people have  an awareness  of a                                                              
situation of  abuse and either  turn a  blind eye or  willfully do                                                              
not report  it when, in  doing so could  have prevented  the abuse                                                              
from occurring.  He asked for someone  from the Department  of Law                                                              
to address the issue.                                                                                                           
SENATOR  GUESS  added  the  provision  came  out  of  the  Jessica                                                              
Lundford  case in  Florida.  The sister  to  the perpetrator  knew                                                              
that he  was a sex  offender, knew he  wasn't registered,  and did                                                              
nothing about  it, which wasn't a  crime at the time.  Florida has                                                              
model  legislation for  what they  did  to rectify  that. That  is                                                              
where the language comes from.                                                                                                  
SENATOR FRENCH asked whether Florida made it a felony offense.                                                                  
SENATOR GUESS said yes.                                                                                                         
SENATOR FRENCH  referred to  the polygraph section  of SB  218. He                                                              
said he  supports it but  is curious to  hear from  the Department                                                              
of  Corrections the  number of  parolees  they anticipate  putting                                                              
under the test.                                                                                                                 
CHAIR SEEKINS  asked for a  representative from the  Department of                                                              
Corrections to speak.                                                                                                           
MS.   PORTIA   PARKER,   Deputy    Commissioner,   Department   of                                                              
Corrections  (DOC),  informed  the  committee  the  department  is                                                              
currently  pulling  the  information   and  looking  at  a  5-year                                                              
window.  She   estimated  there   to  be  approximately   780  sex                                                              
offenders  currently under  supervision  on  parole or  probation.                                                              
Most of them  are receiving treatment  or on a wait list.  If they                                                              
live  in  a  community where  treatment  is  not  available,  that                                                              
requirement is often lifted.                                                                                                    
9:02:35 AM                                                                                                                    
MS  PARKER clarified  there  are between  700-780.  Each year  the                                                              
number will be between 120-180 new ones.                                                                                        
SENATOR FRENCH  understood that the DOC  would be able  to add the                                                              
polygraph as  a condition of parole  in the future but  would have                                                              
to  wait  for  a  new  conviction   to  make  it  a  condition  of                                                              
MS  PARKER  said yes.  After  July  1,  2007 every  convicted  sex                                                              
offender  that  has a  condition  of  probation assigned  will  be                                                              
required to submit  to periodic polygraph exams, as  well as those                                                              
on  parole. Parole  conditions happen  directly  prior to  release                                                              
and so  the polygraph  requirement can be  set immediately  so the                                                              
parole  condition will  happen  a lot  faster  than the  probation                                                              
SENATOR FRENCH  asked Ms.  Parker whether  she anticipated  adding                                                              
that as  a new  parole condition  on the  people who were  already                                                              
out and under supervision.                                                                                                      
MS  PARKER said  no. However,  if they  are brought  in under  the                                                              
condition  of having  their parole  revoked,  the department  will                                                              
work to add that condition.                                                                                                     
9:05:05 AM                                                                                                                    
CHAIR SEEKINS  closed public  testimony and  asked for  discussion                                                              
among committee members.                                                                                                        
SENATOR FRENCH  commented that although  he supports the  bill, he                                                              
has reservations about the some of the numbers.                                                                                 
     One specific  area is sex assault in the  second degree.                                                                   
     It is  generally classified  as a "touching"  crime, not                                                                   
     dealing  with  penetration.   The  bill  would  set  the                                                                   
     penalty  range  at 10  to 15  years.  The  bill takes  a                                                                   
     lesser  offense of sexual  assault in  the third  degree                                                                   
     and  sets the  range from three  to 10  years and  gives                                                                   
     the judge  a wide  range of  options given the  severity                                                                   
     of the  case whereas  in this  bill the most  mitigated,                                                                   
     the  least serious,  the least  offensive touching  case                                                                   
     will result  in a  sentence of 10  years. I'm not  going                                                                   
     to throw amendments  out today because I think  the bill                                                                   
     is leaving committee  and frankly I think  it would take                                                                   
     a  long time to  figure out  what the  right number  is,                                                                   
     but I  just want  to say that  I have some  reservations                                                                   
     about  that   severe  penalty  for  the   least  serious                                                                   
     touching case.  So I will be  thinking that as  the bill                                                                   
     moves  through the  process  and perhaps  there is  some                                                                   
     way to fix  that or I can find out that  it actually has                                                                   
     to be  there. I just  wanted to put  that on the  record                                                                   
     before the bill left committee.                                                                                            
SENATOR  BUNDE agreed  with Senator  French. As  they look  at the                                                              
numbers they  need to determine the  message they want  to send to                                                              
society. Alaska  has a terrible  record to  date and only  one out                                                              
of ten sexual  assault crimes are reported so  that generally when                                                              
someone is convicted  they have a huge background  of victims. The                                                              
vast  majority of  people  that  will be  convicted  under SB  148                                                              
probably deserve  the larger  sentences. However, he  acknowledged                                                              
it  might be  accidentally  mis-applied  at  some point  but  that                                                              
applies to all Alaska laws and sentencing.                                                                                      
9:09:03 AM                                                                                                                    
CHAIR  SEEKINS said  the intent  is to  make the  law tougher  for                                                              
people who  touch inappropriately  but sexual offense  charges can                                                              
easily  become a social  weapon.  He expressed  hope that  the DOL                                                              
would successfully sort out the guilty from the innocent.                                                                       
9:13:08 AM                                                                                                                    
SENATOR  BUNDE asserted  that  confidence and  faith  in the  jury                                                              
system must be upheld.                                                                                                          
9:14:45 AM                                                                                                                    
SENATOR  FRENCH said  he  had a  question  for  the DOL  regarding                                                              
sentencing  of both  murder  in the  second  degree and  attempted                                                              
     The current  penalty for murder in the second  degree is                                                                   
     10-99  years  and  the  current  penalty  for  attempted                                                                   
     murder  is 5-99 years.  I just  wanted to get  something                                                                   
     on the record  in the event of a future  legal challenge                                                                   
     regarding the  disparity of a "touching" case  that gets                                                                   
     you  10 years  and an  attempted murder  case that  only                                                                   
     gets  you  five.  I  just  wanted  to  have  some  legal                                                                   
     foundation, if you will, for that idea.                                                                                    
9:15:35 AM                                                                                                                    
MS.  SUSAN PARKES,  Deputy  Attorney General,  Criminal  Division,                                                              
Department of Law  (DOL), responded this subject  was discussed at                                                              
the  last hearing.  Senator  Guess indicated  she  was working  on                                                              
some findings  to be added  to the bill.  The DOL shares  concerns                                                              
regarding the  disparity. It is  important for the  Legislature to                                                              
explain  the reason  that a serious  "touching"  case would  be as                                                              
serious as attempted murder.                                                                                                    
SENATOR  FRENCH  responded that  the  challenge  would  be for  an                                                              
explanation  as to the  reason that  the least serious  "touching"                                                              
case twice  be viewed  as harmful as  the least serious  attempted                                                              
murder case  because there  is a  great disparity.  It is  a stark                                                              
MS. PARKES  said those kinds  of cases  will be where  someone has                                                              
died and  gets a lower  sentence than a  sex offense where  it has                                                              
been a "touching" or attempted penetration.                                                                                     
9:18:02 AM                                                                                                                    
SENATOR BUNDE added  someone who has had an attempt  on their life                                                              
lives  in  fear  and  someone who  has  suffered  a  sexual  abuse                                                              
attempt may also  live in fear and have a psychological  death. He                                                              
asserted  that people  who suffer  from  a sexual  assault can  be                                                              
inhibited and destroyed for the rest of their life.                                                                             
9:18:27 AM                                                                                                                    
Senator Gene Therriault joined the meeting.                                                                                     
SENATOR GUESS clarified  she would agree to disagree  with Senator                                                              
French  regarding severity.  She said  there are  cases of  sexual                                                              
assault  of  a  minor  in  the   second  degree  (SAM2)  that  are                                                              
penetration.  It  is not  just  contact.  With contact  there  are                                                              
situations where the  perpetrator is over 16 years  of age and the                                                              
victim  is under 13,  or it's  a position  of authority  situation                                                              
and   the   child   is  under   16.   She   disagreed   with   the                                                              
characterization of "it's the least."                                                                                           
For  the record,  "sexual  contact"  is  "knowingly."  There is  a                                                              
standard  and  it   does  exempt  acts  that  may   be  reasonably                                                              
construed to  be normal caretaking  and affection. It is  a policy                                                              
call  and a  value statement.  It  is not  just an  impact to  the                                                              
victim  but  also   an  impact  to  the  community.   There  is  a                                                              
reasonable  argument that the  Legislature can  make that  when it                                                              
comes  to  the  impact on  the  community,  and  generations,  and                                                              
public safety,  especially  with what is  known about  recidivism,                                                              
maybe the punishment is just.                                                                                                   
CHAIR SEEKINS  agreed with Senator  French that defense  attorneys                                                              
would  challenge  the  law  and  that the  courts  will  hear  the                                                              
9:22:19 AM                                                                                                                    
SENATOR FRENCH:                                                                                                                 
     Within any  statute, and  SAM is a  good example;  SAM 2                                                                   
     has  many different  prongs.  Within  any one  of  those                                                                   
     violations,  there  will be  a  range of  behavior  that                                                                   
     would  satisfy  the statute  under  which a  jury  could                                                                   
     find you  guilty. Just  as an  example, the presence  or                                                                   
     absence  of  clothing. You  can  have a  sexual  contact                                                                   
     with  or without  clothing.  And so  the sexual  contact                                                                   
     with  clothing  present  and  without  it  is  something                                                                   
     else;  both violate  the same  statute. But  there is  a                                                                   
     range  of behavior  that  will make  you  guilty of  the                                                                   
     crime.  I am  not  saying it's  not  serious. It's  very                                                                   
     serious.  What I'm  saying  is that  within  any one  of                                                                   
     those categories,  you'll have  behavior that is  either                                                                   
     more  serious  or  less  serious.  It  still  makes  you                                                                   
     guilty  of the  crime.  And so  I'm  concerned that  the                                                                   
     least  serious  conduct,  touching   over  clothing  for                                                                   
     example, will  get you a 10-year sentence  and that will                                                                   
     be  compared  to the  least  serious  attempted  murder,                                                                   
     whatever   least   serious  attempted   murder   conduct                                                                   
     satisfies  that statute.  Again  they  are both  heinous                                                                   
     crimes.  But  what  will happen  is  that  someone  will                                                                   
     compare that  - sexual contact  over clothing -  with an                                                                   
     attempted  murder case  that doesn't  look very  serious                                                                   
     and say, "Why  did that person get ten years  versus why                                                                   
     did that other person get five?"                                                                                           
He said his  last concern was  the findings would not  be reviewed                                                              
in the Senate Judiciary Standing Committee.                                                                                     
9:24:26 AM                                                                                                                    
CHAIR SEEKINS agreed Senator French had a legitimate concern.                                                                   
9:24:50 AM                                                                                                                    
SENATOR  THERRIAULT  asked  Ms.  Parkes whether  the  judge  could                                                              
impose the  polygraph on a sex  offender whose probation  has been                                                              
MS.  PARKES said  normally  when probation  has  been revoked  the                                                              
judge imposes  additional time. She  deferred the question  to Mr.                                                              
Dean Guaneli.                                                                                                                   
9:26:25 AM                                                                                                                    
MR.  DEAN  GUANELI, Chief  Assistant  Attorney  General,  Criminal                                                              
Division,  Department  of  Law  (DOL),  advised  in  the  case  of                                                              
probation  revocation the  court could  establish new  conditions,                                                              
which could  include polygraph testing.  It is an open  question -                                                              
whether short  of revocation - new  conditions could be  added. In                                                              
appropriate  cases the DOL  would have  the probation  officer ask                                                              
the  judge  to  impose  the new  condition.  The  only  thing  the                                                              
Legislature  can do  is  state the  provision  that the  polygraph                                                              
condition  could apply  to  offenses committed  before  SB 218  is                                                              
9:28:25 AM                                                                                                                    
CHAIR SEEKINS  affirmed the  intent of the  committee is  that the                                                              
courts  be able  to impose  the polygraph  requirement anytime  to                                                              
any case after the law becomes affective.                                                                                       
SENATOR  THERRIAULT  stated  that  was  the intent  of  the  bill.                                                              
However, he would  like to pursue the polygraph  testing for those                                                              
offenders who are currently out on probation.                                                                                   
MR. GUANELI advised  that once a sentence is  meaningfully imposed                                                              
on  a  person,  that  sentence  cannot  be  increased.  The  legal                                                              
question would be  whether imposing a polygraph  requirement would                                                              
be  in  effect,  an  increase  in  the  sentence.  There  is  that                                                              
constitutional  question but  if  the Legislature  makes it  clear                                                              
then the DOL could argue the question in the courts.                                                                            
SENATOR BUNDE  added the  polygraph would be  part of  a treatment                                                              
program aimed  at rehabilitation,  not added punishment.  In other                                                              
states,  the  compliance  rate   with  probation  limitations  was                                                              
nearly 70  percent compared to 20  percent in states that  have no                                                              
polygraph.   It   really  shouldn't   be   considered   additional                                                              
9:33:02 AM                                                                                                                    
SENATOR GUESS  moved to report  CSSB 218(JUD) from  committee with                                                              
individual  recommendations  and   attached  indeterminate  fiscal                                                              
notes. Hearing no objections, the motion carried.                                                                               

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