Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/07/2011 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 62 CIVIL LEGAL SERVICES FUND TELECONFERENCED
Heard & Held
*+ SB 72 CRIMES INVOLVING MINORS/STALKING/INFO TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
          SB  72-CRIMES INVOLVING MINORS/STALKING/INFO                                                                      
                                                                                                                                
1:36:47 PM                                                                                                                    
CHAIR HOLLIS FRENCH announced the consideration of SB 72.                                                                       
                                                                                                                                
1:37:02 PM                                                                                                                    
JOHN  BURNS, Attorney  General, Department  of Law  (DOL), stated                                                               
that SB 72  is aimed at the stalking and  exploitation of minors.                                                               
Through the  efforts of  both the  Governor and  the Legislature,                                                               
Alaska  is  firmly  focused  on ending  the  epidemic  of  sexual                                                               
assault and  domestic violence that  has plagued  communities for                                                               
far too long.  The statistics bear repeating.  Children in Alaska                                                               
are sexually  abused at a  rate that is  6 times higher  than the                                                               
national average;  and women in Alaska  are raped at a  rate that                                                               
is 2.5  times the national  average. SB 72 builds  on legislation                                                               
passed last year  and proposes changes that  will further protect                                                               
victims from exploitation and assault.                                                                                          
                                                                                                                                
In addition  to clarifying  aspects of  existing statutes,  SB 72                                                               
expands  the crime  of  stalking by  amending  the definition  of                                                               
nonconsensual  contact to  include the  use of  global positional                                                               
devices  and  the  installation  and  attempted  installation  of                                                               
devices to  observe, record,  or photograph  events in  the home,                                                               
workplace,  or vehicle  of a  victim  or on  a victim's  personal                                                               
telephone or computer. The amended  definition reflects a reality                                                               
of technology  and the uses for  which it is applied.  SB 72 also                                                               
makes it a crime to publish  or distribute an explicit image of a                                                               
minor  and makes  it  a crime  to  knowingly obtain  confidential                                                               
information  about  another  person without  legal  authority  or                                                               
consent.                                                                                                                        
                                                                                                                                
As  proposed  by  the  Governor,   the  objective  of  SB  72  is                                                               
consistent with efforts to eradicate  sexual assault and domestic                                                               
violence.                                                                                                                       
                                                                                                                                
1:39:21 PM                                                                                                                    
SENATOR MCGUIRE joined the hearing.                                                                                             
                                                                                                                                
RICK  SVOBODNY,  Deputy   Attorney  General,  Criminal  Division,                                                               
Department  of Law  (DOL)  stated that,  in  general, Alaska  has                                                               
state-of-the-art  statutes  related  to protecting  children  and                                                               
adults from domestic violence and  sexual assault. The Governor's                                                               
initiative appropriately  deals with  things like  prevention and                                                               
keeping kids in school so  they aren't victimized, but every year                                                               
the conduct of society changes  such that the current legislation                                                               
needs to be tweaked. SB 72 serves this purpose.                                                                                 
                                                                                                                                
MR. SVOBODNY provided the following sectional analysis of SB 72:                                                                
                                                                                                                                
Sections  1  and  2  change  the  stalking  statutes.  Right  now                                                               
stalking occurs when a person  A engages in nonconsensual contact                                                               
with person  B and that conduct  places person B or  their family                                                               
members in fear of death or physical injury.                                                                                    
                                                                                                                                
Reflecting  changes in  technology, SB  72 adds  two ways  that a                                                               
defendant may make  contact that is beyond  the victim's consent.                                                               
The first is  by installing or trying to install  a GPS device or                                                               
similar technology on a victim's  vehicle in order to track their                                                               
whereabouts. [The  second way  includes installing  or attempting                                                               
to install  a device for  observing, recording,  or photographing                                                               
events  in  a person's  home,  workplace,  or  vehicle, or  on  a                                                               
person's personal telephone or computer.]                                                                                       
                                                                                                                                
1:44:01 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if it  would be considered stalking if                                                               
a person used  Google Earth to look at another  person's house on                                                               
a regular basis.                                                                                                                
                                                                                                                                
MR. SVOBODNY answered no; it's  the installation of a device that                                                               
would track somebody.                                                                                                           
                                                                                                                                
CHAIR FRENCH called  a point of order to clarify  that on page 2,                                                               
subparagraph (H) is  about following or monitoring  a person with                                                               
a GPS and  subparagraph (I) is about installing a  device that is                                                               
like a webcam.                                                                                                                  
                                                                                                                                
MR. SVOBODNY agreed; he was  discussing subparagraph (H) when the                                                               
question was posed.                                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI noted  that  subparagraph  (I) talks  about                                                               
using a device  for observing a person's residence  and said he'd                                                               
like to  know how Google  Earth doesn't  apply. He then  asked if                                                               
subparagraph (H) would bar an  employer from putting a GPS device                                                               
on an employee's vehicle.                                                                                                       
                                                                                                                                
MR. SVOBODNY replied that conduct  alone wouldn't be criminalized                                                               
by  this  section.  This  stalking  section  deals  with  causing                                                               
somebody to  be placed  in fear  of death  or physical  injury by                                                               
repeated instances of nonconsensual contact.                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI indicated he would check the statute.                                                                      
                                                                                                                                
CHAIR FRENCH  agreed with  Mr. Svobodny; one  of the  elements of                                                               
stalking  is that  there's a  pattern  of nonconsensual  contact.                                                               
Acknowledging  that the  members  probably aren't  totally up  to                                                               
speed on  all advances in technology,  he said he isn't  sure how                                                               
easy it would be to track  someone by looking at which cell phone                                                               
tower routed  their calls. The  police use this  information from                                                               
time to time and  it wouldn't be good if a  stalker could too. He                                                               
asked Mr. Svobodny to comment.                                                                                                  
                                                                                                                                
1:47:51 PM                                                                                                                    
MR. SVOBODNY deferred the question to Sergeant DeGraaf.                                                                         
                                                                                                                                
He continued  to explain  that the  idea in  the first  clause in                                                               
subparagraph (I) is  the situation of installing a  device like a                                                               
webcam  in  someone's  house  or   vehicle  for  the  purpose  of                                                               
observing, recording, or tracking  that person. The second clause                                                               
deals  with  computers  or  telephonic devices  in  the  home  or                                                               
workplace. He cited examples.                                                                                                   
                                                                                                                                
CHAIR  FRENCH  said  the elements  listed  in  subparagraphs  (A)                                                               
through (I) on  pages 1 and 2 require that  the victim know about                                                               
them.                                                                                                                           
                                                                                                                                
MR. SVOBODNY  replied not  necessarily, but as  a result  of this                                                               
conduct the person is put in  fear of death or physical injury. A                                                               
rather  common example  is somebody  leaving Hallmark  cards with                                                               
phrases on a  person's windshield; it takes awhile  to figure out                                                               
what's  going  on, but  that  conduct  can eventually  place  the                                                               
person in fear.                                                                                                                 
                                                                                                                                
1:52:31 PM                                                                                                                    
CHAIR FRENCH  clarified that  there has to  be some  awareness on                                                               
the victim's part that this  is happening. If someone is watching                                                               
your house  and you don't  know about it,  you don't like  it and                                                               
it's creepy but it's not part of the stalking proof.                                                                            
                                                                                                                                
MR. SVOBODNY agreed;  the victim has to know about  it and be put                                                               
in fear.                                                                                                                        
                                                                                                                                
1:52:53 PM                                                                                                                    
SENATOR  WIELECHOWSKI  read  the   definition  of  the  crime  of                                                               
stalking in  the second  degree and asked  if it  hasn't occurred                                                               
until  a  person knows  about  it  and is  in  fear  of death  or                                                               
physical injury.                                                                                                                
                                                                                                                                
MR. SVOBODNY replied  it wouldn't be the crime  of stalking until                                                               
the person  was aware, but  the elements might fit  another crime                                                               
such as eavesdropping or indecent viewing.                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI questioned  what is  being criminalized  in                                                               
subparagraphs (H) and (I).                                                                                                      
                                                                                                                                
MR.  SVOBODNY  explained that  this  adds  to the  definition  of                                                               
nonconsensual contact; if a GPS  device was installed or a device                                                               
was  installed on  a person's  cell  phone or  computer and  they                                                               
became sufficiently cognizant to be  put in fear, then that would                                                               
be the crime of stalking in the second degree.                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI asked,  if installs one of  these devices on                                                               
my cell phone  and I don't know about it,  this bill doesn't make                                                               
that a crime.                                                                                                                   
                                                                                                                                
MR.  SVOBODNY confirmed  that  this change  would  not make  that                                                               
conduct a crime.                                                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI asked  if it would be the  crime of stalking                                                               
in the second  degree if he finds out about  the installation and                                                               
fears death or physical injury.                                                                                                 
                                                                                                                                
MR. SVOBODNY replied the conduct would also have to be repeated.                                                                
                                                                                                                                
1:55:39 PM                                                                                                                    
CHAIR FRENCH  said he understands  the concern; we're  relying on                                                               
some other  provision of criminal  law to  rise up and  touch the                                                               
conduct of somebody  putting a webcam in your  house without your                                                               
knowledge.                                                                                                                      
                                                                                                                                
MR. SVOBODNY  said that would  be the crime of  eavesdropping and                                                               
it's not prosecuted very often.                                                                                                 
                                                                                                                                
CHAIR FRENCH  suggested that  it might  be time  to look  at that                                                               
statute since there are so many new ways to share information.                                                                  
                                                                                                                                
MR. SVOBODNY related  that he's prosecuted cases  of an estranged                                                               
husband  putting  a  listening  device in  his  wife's  residence                                                               
without   her  knowledge   or  consent.   That's  the   crime  of                                                               
eavesdropping.                                                                                                                  
                                                                                                                                
1:57:12 PM                                                                                                                    
SENATOR WIELECHOWSKI said  he can see how [the elements  in (A) -                                                               
(G)]  could  cause fear  of  death  or  physical injury,  but  he                                                               
wonders  if the  proposed (H)  and  (I) shouldn't  be in  another                                                               
section. If someone installed one  of these devices you'd be more                                                               
likely to feel  that your privacy had been violated  than to fear                                                               
death, he said.                                                                                                                 
                                                                                                                                
CHAIR  FRENCH said  you have  to put  it into  context; it's  the                                                               
pattern of nonconsensual contact that makes a person afraid.                                                                    
                                                                                                                                
MR.  SVOBODNY  offered  to look  at  the  eavesdropping  statutes                                                               
because it was on his mind when the bill was drafted.                                                                           
                                                                                                                                
1:58:54 PM                                                                                                                    
CHAIR  FRENCH  stated that  this  is  an  area the  committee  is                                                               
concerned  about  and  it  will  be  discussed  again  in  future                                                               
hearings.                                                                                                                       
                                                                                                                                
SENATOR MCGUIRE said she likes  that the bill addresses stranger-                                                               
to-stranger  contact because  the  criminal  laws initially  were                                                               
structured  around domestic  relations.  "It's  exciting that  at                                                               
least our statutes are keeping up with the conduct," she said.                                                                  
                                                                                                                                
2:00:30 PM                                                                                                                    
SENATOR  PASKVAN  reviewed  AS 11.41.270(a)  and  questioned  why                                                               
there needs  to be  a "course  of conduct"  as opposed  to saying                                                               
that someone  "engages in conduct that  recklessly places another                                                               
person in fear."                                                                                                                
                                                                                                                                
MR.  SVOBODNY replied  stalking  was criminalized  after a  state                                                               
employee  became infatuated  with a  female coworker.  He started                                                               
saying odd  things in the elevator,  then she saw his  car on her                                                               
street,  and then  he started  following her  all the  time. This                                                               
course  of conduct  over  time was  very  frightening and  that's                                                               
typically  what   stalking  is;   it's  not  one   event.  Alaska                                                               
prohibited the pattern of conduct that scared people in 1993.                                                                   
                                                                                                                                
SENATOR PASKVAN  said he  wonders if there's  a public  policy in                                                               
saying that  a person should not  be allowed to put  a monitoring                                                               
device on another person's vehicle under any circumstance.                                                                      
                                                                                                                                
MR. SVOBODNY replied it's easy  to say that somebody shouldn't be                                                               
able to install a webcam in  another person's house, but we don't                                                               
even  realize how  often tracking  devices are  put in  vehicles.                                                               
It's common for  rental car agencies to track  the whereabouts of                                                               
their  rental fleet  and  trucking companies  use  them to  track                                                               
freight.                                                                                                                        
                                                                                                                                
2:05:29 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if a  person has engaged in  a course                                                               
of conduct if they try to put a webcam in someone's house.                                                                      
                                                                                                                                
MR. SVOBODNY answered no; it would need to be repeated conduct.                                                                 
                                                                                                                                
CHAIR  FRENCH  noted that  a  memo  from Mr.  Svobodny  regarding                                                               
Cooper   v.   Cooper,  Alaska   2006   states   that  more   than                                                               
nonconsensual  contact is  needed for  the crime  of stalking  to                                                               
take place;  the contact must  also be repeated  so that it  is a                                                               
course of conduct and it must place the person in fear.                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI asked if it would  be a course of conduct if                                                               
someone puts  a webcam in your  house and they look  at you every                                                               
night.                                                                                                                          
                                                                                                                                
MR. SVOBODNY  replied, "That  certainly would  be my  argument to                                                               
the court."                                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked  if the courts would  agree, given the                                                               
way the law is written.                                                                                                         
                                                                                                                                
MR. SVOBODNY answered yes; there's  precedent in a case involving                                                               
the  crime of  terroristic threatening,  which required  repeated                                                               
conduct.  When  a   judge  received  a  letter   that  had  three                                                               
paragraphs, the court said constituted three incidents.                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI questioned how  it's possible to inflict the                                                               
fear of death or physical injury  by attempting to install one of                                                               
these devices.                                                                                                                  
                                                                                                                                
CHAIR FRENCH said  you might walk out of Fred  Meyers and see the                                                               
person who has been sending  creepy messages putting something in                                                               
your car  or you  might come  home and find  he's been  trying to                                                               
install a webcam.                                                                                                               
                                                                                                                                
MR.  SVOBODNY said  attempting  to  install a  GPS  is an  event,                                                               
following is  an event, and  contacting a person at  their office                                                               
is an event; together that is a repeated course of conduct.                                                                     
                                                                                                                                
2:08:19 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if it would  be a crime of stalking in                                                               
the second  degree to  install a  webcam outside  someone's house                                                               
and focused on their front door.                                                                                                
                                                                                                                                
MR. SVOBODNY  replied that would not  be counted as part  of this                                                               
course of  conduct. He said  his interpretation would be  that it                                                               
must be installed in the house.                                                                                                 
                                                                                                                                
CHAIR FRENCH opined that it's  an open question because you'd see                                                               
inside  the  residence if  a  device  was installed  outside  the                                                               
residence but focused on a window or the front door.                                                                            
                                                                                                                                
SENATOR PASKVAN asked about the  circumstance of hiring a private                                                               
investigator to track the activities of a person.                                                                               
                                                                                                                                
MR. SVOBODNY  replied a person  who solicits another or  aids and                                                               
abets another  in committing a crime  is as guilty as  the person                                                               
that is doing  the crime. If the investigator's  conduct fits the                                                               
elements and  recklessly places  the person in  fear of  death or                                                               
physical injury,  both the private investigator  and the employer                                                               
would be committing a crime.                                                                                                    
                                                                                                                                
2:10:49 PM                                                                                                                    
SENATOR  PASKVAN said  private  investigators are  hired all  the                                                               
time  to do  just that,  particularly  in the  civil arena.  This                                                               
makes it a bit unclear as to  what's a crime and what's legal. Is                                                               
it legal if someone's registered with  the state to be a stalker,                                                               
as opposed to the amateur?                                                                                                      
                                                                                                                                
MR.  SVOBODNY  agreed that  private  investigators  do all  those                                                               
things, but  they have to meet  the other elements of  the crime.                                                               
He added that it's a problem  when a criminal statute can be read                                                               
multiple   ways    because   the   defendant   wins    in   their                                                               
interpretation.                                                                                                                 
                                                                                                                                
2:13:01 PM                                                                                                                    
SENATOR WIELECHOWSKI said he has  great concern passing laws that                                                               
give  prosecutors great  discretion;  rather, the  law should  be                                                               
written  as  succinctly  and articulately  as  possible.  Senator                                                               
Paskvan  raises  an excellent  point,  and  the language  in  the                                                               
proposed provisions should be tightened, he said.                                                                               
                                                                                                                                
CHAIR FRENCH  pointed out  that the  foundational element  is the                                                               
course of conduct  that recklessly places another  person in fear                                                               
of death or physical injury.  It's not the specific incident that                                                               
a prosecutor will rely on to form the basis of his/her case.                                                                    
                                                                                                                                
He asked Mr. Svobodny to move to Section 2.                                                                                     
                                                                                                                                
2:15:12 PM                                                                                                                    
MR.  SVOBODNY   said  Section  2   includes  "software"   in  the                                                               
definition of "device."                                                                                                         
                                                                                                                                
Section 3  increases the  classification of  the crime  of online                                                               
enticement  of a  minor  for  a person  who  is  not required  to                                                               
register as  a sex  offender or  child kidnapper  from a  class C                                                               
felony  to a  class B  felony. For  a person  who is  required to                                                               
register  as a  sex offender,  the classification  would increase                                                               
from a  B felony offense to  an A felony offense.  It also refers                                                               
to  Section 12  and places  the offense  of online  enticement in                                                               
with  the other  sexual assaults,  attempted sexual  assaults, or                                                               
conspiracy   to  commit   sexual  assaults.   This  changes   the                                                               
presumptive ranges for these offenses.                                                                                          
                                                                                                                                
2:17:59 PM                                                                                                                    
SENATOR  PASKVAN  asked  if  this is  really  a  problem  because                                                               
increasing  the penalties  would give  defendants more  reason to                                                               
mount a vigorous defense and the  cases would be more complex for                                                               
prosecutors.                                                                                                                    
                                                                                                                                
MR. SVOBODNY  said he  agrees that it's  likely that  these cases                                                               
would  be litigated  strongly  and the  work  would increase  for                                                               
prosecutors, but the  complexity of the cases would  be the same.                                                               
He offered  to follow  up and provide  the information  about how                                                               
many of these cases go to trial.                                                                                                
                                                                                                                                
CHAIR  FRENCH  said  he'd  like  to  know  how  many  people  are                                                               
prosecuted under this  statute given the scope of  the problem in                                                               
Alaska with sex assault and sex abuse of a minor.                                                                               
                                                                                                                                
MR. SVOBODNY  agreed to provide  the information and  warned that                                                               
the numbers of  cases that are prosecuted  are substantially less                                                               
than the numbers of times that  people in Alaska have gone online                                                               
and  exchanged child  pornography. He  reminded the  committee of                                                               
the demonstration  last year that  showed these  online exchanges                                                               
and   emphasized  that   these  cases   are  time   consuming  to                                                               
investigate because  it's necessary  to not  only track  down the                                                               
computer  that was  used  but  also to  prove  that a  particular                                                               
individual was sitting behind that computer.                                                                                    
                                                                                                                                
2:21:41 PM                                                                                                                    
MR.  SVOBODNY summarized  that Sections  3  and 4  deal with  the                                                               
online  enticement   and  Section  5  deals   with  the  unlawful                                                               
exploitation of  a minor. The  penalties are increased  for these                                                               
crimes.                                                                                                                         
                                                                                                                                
Section 6 amends the crime of  endangering the welfare of a minor                                                               
in  the first  degree.  The  current law  prohibits  a parent  or                                                               
guardian from leaving  a child under age 16 with  a person who is                                                               
required to  register as a sex  offender. This adds a  person who                                                               
is required to register as a child kidnapper to that group.                                                                     
                                                                                                                                
SENATOR COGHILL asked if his  understanding is correct that a lot                                                               
of the people that are required  to register as a child kidnapper                                                               
end up in  this category because of disputes over  the custody of                                                               
their children.                                                                                                                 
                                                                                                                                
MR.  SVOBODNY  replied  he  would  follow  up  and  look  at  the                                                               
kidnapping statute,  but he believes these  cases would generally                                                               
be charged as custodial interference.                                                                                           
                                                                                                                                
SENATOR COGHILL said  he needs to understand  this better because                                                               
some custody disputes are legitimate.                                                                                           
                                                                                                                                
2:24:56 PM                                                                                                                    
Section  7 adopts  a new  crime  for "sexting."  It proscribes  a                                                               
person sending an explicit image  of a minor's genitals, anus, or                                                               
female breast  without consent of  the parent or guardian  if the                                                               
minor  is under  age  16. The  prohibited conduct  would  be a  B                                                               
misdemeanor offense if  the image is published  or distributed to                                                               
one  or two  people; an  A misdemeanor  offense if  the image  is                                                               
published to more than two people;  and a C felony offense if the                                                               
publication or distribution is over  the Internet. This would not                                                               
apply to  a minor under age  16 who publishes or  distributes his                                                               
or her own image.                                                                                                               
                                                                                                                                
MR. SVOBODNY noted that this  issue is somewhat controversial and                                                               
a  way to  resolve it  may be  to include  the "Romeo  and Juliet                                                               
exception," which is that a  required element would be that there                                                               
has to be four years  difference between the person whose picture                                                               
is sent and the person who posts the image.                                                                                     
                                                                                                                                
CHAIR FRENCH stated concern about the section.                                                                                  
                                                                                                                                
2:27:38 PM                                                                                                                    
SENATOR  WIELECHOWSKI   posed  a  hypothetical  situation   of  a                                                               
grandmother using her  iphone to take a picture of  a baby she is                                                               
watching to send it to her  bridge club friends. He asked if this                                                               
violates the statute because the baby is only wearing diapers.                                                                  
                                                                                                                                
MR. SVOBODNY  replied that  would be a  problem under  the strict                                                               
reading  of  the  bill  because the  grandmother  isn't  a  legal                                                               
guardian. If the  prosecutors used no common sense it  would be a                                                               
misdemeanor offense.                                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI asked if it would  be a violation of the law                                                               
if a  15 year old girl  took pictures of herself  and distributed                                                               
them a week later after she turned 16.                                                                                          
                                                                                                                                
MR.  SVOBODNY replied  she  could be  prosecuted  under the  bill                                                               
because the crime occurs when the distribution occurs.                                                                          
                                                                                                                                
2:29:58 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Department of  Law                                                               
(DOL),  clarified that  the bill  specifically provides  that the                                                               
statute doesn't apply to a person sending their own picture.                                                                    
                                                                                                                                
CHAIR FRENCH reviewed the language on  page 3, line 28, that says                                                               
it  doesn't apply  to  a  minor under  16  and  pointed out  that                                                               
Senator  Wielechowski's hypothetical  posits distribution  at age                                                               
17.                                                                                                                             
                                                                                                                                
MS. CARPENETI agreed that should be clarified.                                                                                  
                                                                                                                                
SENATOR PASKVAN posed  a hypothetical situation of a  15 year old                                                               
girl sexting  to a  16 year  old boyfriend who  shares it  with a                                                               
buddy. He asked if the  boyfriend committed a class B misdemeanor                                                               
offense.                                                                                                                        
                                                                                                                                
MS.  CARPENETI reminded  the committee  that  juveniles would  be                                                               
dealt with  in juvenile  court, but  if the  boyfriend was  18 or                                                               
older he would have committed a class B misdemeanor.                                                                            
                                                                                                                                
2:32:20 PM                                                                                                                    
SENATOR  PASKVAN  urged  caution  because even  if  they  were  a                                                               
juvenile this could follow them throughout their life.                                                                          
                                                                                                                                
CHAIR FRENCH asked if this is a registerable offense.                                                                           
                                                                                                                                
MS. CARPENETI answered no.                                                                                                      
                                                                                                                                
CHAIR FRENCH clarified  that a person who  commits these offenses                                                               
would not have to register as a sex offender.                                                                                   
                                                                                                                                
SENATOR  COGHILL  asked  if  there's   a  law  that  models  some                                                               
responsibility for a minor who takes  a picture of him or herself                                                               
and sends it on.                                                                                                                
                                                                                                                                
MS. CARPENETI replied  she hasn't seen one. She  added that these                                                               
are  difficult   choices  and  that's  reflected   in  the  tough                                                               
questions that are being asked.                                                                                                 
                                                                                                                                
CHAIR  FRENCH questioned  the  wisdom  of criminalizing  behavior                                                               
that is without  question stupid. He observed that a  15 year old                                                               
girl could  put a picture of  herself on Facebook and  she hasn't                                                               
committed a crime, but her boyfriend has if he points it out.                                                                   
                                                                                                                                
MS.  CARPENETI   clarified  that  the  boyfriend   wouldn't  have                                                               
committed a  crime unless he forwards  the image his 15  year old                                                               
girlfriend posted.                                                                                                              
                                                                                                                                
MS. CARPENETI  said we  have to assume  that the  prosecutors and                                                               
division  of juvenile  justice (DJJ)  personnel are  using common                                                               
sense.                                                                                                                          
                                                                                                                                
2:34:34 PM                                                                                                                    
CHAIR FRENCH asked what core conduct  this is aimed at that isn't                                                               
covered by  existing statutes that punish  child pornographers or                                                               
enticers of children.                                                                                                           
                                                                                                                                
MR.  SVOBODNY  clarified  that child  exploitation  is  a  felony                                                               
offense and  is substantially more  serious. This bill  is trying                                                               
to  address the  reality that  pictures  that are  posted on  the                                                               
Internet never die.  They follow a person for the  rest of his or                                                               
her life and  may influence a potential future  employer. This is                                                               
to reduce the impact of making a stupid decision.                                                                               
                                                                                                                                
2:38:02 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  if  there are  any  exceptions  for                                                               
things with literary or artistic  merit. For example, would it be                                                               
a  crime under  this  statute  to forward  a  picture  of a  17th                                                               
century painting of a young girl who isn't wearing a shirt?                                                                     
                                                                                                                                
MR. SVOBODNY said that when he  asked Ms. Carpeneti to draft this                                                               
bill, his  thought process  was that  things with  artistic value                                                               
would fall under the parental/guardian consent exception.                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI  asked if  he would  have committed  a crime                                                               
under  Sec.  11.61.116 if  he  were  to  forward a  17th  century                                                               
literary masterpiece of a young girl who isn't wearing a shirt.                                                                 
                                                                                                                                
MR. SVOBODNY answered no.                                                                                                       
                                                                                                                                
SENATOR  WIELECHOWSKI  questioned  how  that  wouldn't  meet  the                                                               
technical definition of this violation.                                                                                         
                                                                                                                                
MR.  SVOBODNY conceded  that the  language probably  needs to  be                                                               
tightened,  but  the idea  is  to  limit future  consequences  of                                                               
having made a stupid and indiscrete youthful decision.                                                                          
                                                                                                                                
2:41:49 PM                                                                                                                    
SENATOR  MCGUIRE  stated  that  she  believes  that  the  current                                                               
language  is vulnerable  to constitutional  challenges. She  then                                                               
raised  the issue  of someone  using another  person's phone  and                                                               
publishing  an   image  or  text  without   consent.  In  another                                                               
hypothetical situation teens pass a  phone around to show a photo                                                               
and someone pushes "send." In both  cases it would be a matter of                                                               
proof as to who published. These  examples show that in real life                                                               
the chain of custody isn't as  clear as we might describe it, she                                                               
said.                                                                                                                           
                                                                                                                                
MS. CARPENETI  clarified that  this only  applies to  images, not                                                               
text.                                                                                                                           
                                                                                                                                
SENATOR MCGUIRE responded  that it's a very  quick process that's                                                               
often  done without  consent. She  mentioned her  experience with                                                               
her young son.                                                                                                                  
                                                                                                                                
2:46:11 PM                                                                                                                    
MS. CARPENETI  pointed out that  this is a criminal  statute that                                                               
has culpable mental states. The  state would have to prove beyond                                                               
a reasonable doubt that a  person knowingly posted the image with                                                               
reckless disregard  to the age  of the  person in the  image. She                                                               
reiterated  that  this  is  difficult  and  she  appreciates  the                                                               
helpful comments.                                                                                                               
                                                                                                                                
SENATOR PASKVAN asked how many  people the state believes will be                                                               
put in  jail by  this statute  assuming there  is a  common sense                                                               
understanding of who would and would not be prosecuted.                                                                         
                                                                                                                                
MR.  SVOBODNY  replied hopefully  no  one  but it's  a  difficult                                                               
question because this  isn't a current crime so  there aren't any                                                               
statistics.  What we  don't want  is to  have a  24 year  old man                                                               
distributing pictures of a 15 year old girl.                                                                                    
                                                                                                                                
2:49:03 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 72 in committee.                                                                        
                                                                                                                                

Document Name Date/Time Subjects
SB62 Sponsor Statement.pdf SJUD 2/7/2011 1:30:00 PM
SB 62