Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/16/2011 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 58 INCREASING NUMBER OF SUPERIOR CT JUDGES TELECONFERENCED
Moved SB 58 Out of Committee
+= SB 72 CRIMES INVOLVING MINORS/STALKING/INFO TELECONFERENCED
Heard & Held
*+ SB 11 HATE CRIMES TELECONFERENCED
Heard & Held
+ SB 39 U.S. PRESIDENTIAL ELECTION COMPACT TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
          SB  72-CRIMES INVOLVING MINORS/STALKING/INFO                                                                      
                                                                                                                                
1:34:01 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of SB 72.  He asked Ms.                                                               
Carpeneti  to  continue  the sectional  analysis,  starting  with                                                               
Section 8.                                                                                                                      
                                                                                                                                
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department  of  Law  (DOL),  said   Section  8  is  a  conforming                                                               
amendment to  clarify that  the sexting  provisions in  Section 7                                                               
aren't included in the crime of harassment in the second degree.                                                                
                                                                                                                                
1:35:15 PM                                                                                                                    
Section 9  makes two amendments  to the crime of  distribution of                                                               
indecent  material to  minors. First,  it clarifies  the culpable                                                               
mental state  that the  state must  prove in  order to  convict a                                                               
person  of the  offense. It  provides that  the person  must know                                                               
that the  material he or  she distributed depicts  the prohibited                                                               
conduct.  Second, it  clarifies that  if  the minor  to whom  the                                                               
material  is sent  is  under  age 16,  the  person  who sent  the                                                               
material was reckless as to that circumstance.                                                                                  
                                                                                                                                
SENATOR  PASKVAN noted  that the  term "lewd"  is included  as an                                                               
adjective  in this  section to  specifically describe  "touching"                                                               
and "exhibition." He asked what the mental status is for "lewd."                                                                
                                                                                                                                
MS.   CARPENETI  replied   it  would   be  the   circumstance  of                                                               
"reckless."  The person  would  have to  know  that the  material                                                               
included the  "lewd" touching  of a  person's genitals,  anus, or                                                               
female breast.                                                                                                                  
                                                                                                                                
SENATOR PASKVAN  said he didn't  understand what the  term "lewd"                                                               
means in that context.                                                                                                          
                                                                                                                                
1:37:55 PM                                                                                                                    
MS.  CARPENETI replied  that's a  question for  a jury;  it's not                                                               
defined in the statutes.                                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  the  bill  applies  to  cartoon                                                               
characters.                                                                                                                     
                                                                                                                                
MS. CARPENETI answered no.                                                                                                      
                                                                                                                                
1:38:19 PM                                                                                                                    
CHAIR FRENCH noted  a letter dated today from  the American Civil                                                               
Liberties Union (ACLU)  pointing out that there  is a preliminary                                                               
injunction,  on First  Amendment grounds,  against this  section.                                                               
Mr.  Mittman says  that Section  9 of  the bill  would narrow  AS                                                               
11.61.128(a) "to  only criminalize  the distribution  of material                                                               
'harmful to  minors' by  an adult  if the  recipient is  under 16                                                               
years old  and the  adult is  reckless regarding  the recipient's                                                               
ageā€¦  ."  Mr.  Mittman  goes  on  to say  that  the  bill  is  an                                                               
improvement on the statute that  was enjoined, but it would still                                                               
violate both the  First Amendment and the Commerce  Clause of the                                                               
U.S. Constitution. Senator  French asked Ms. Carpeneti  if DOL is                                                               
in communication with Mr. Mittman on this topic.                                                                                
                                                                                                                                
MS.  CARPENETI  replied  they have  been  in  communication  with                                                               
Michael Bamberger, an attorney who  is working with the litigants                                                               
in this  case. She added that  she had not been  in communication                                                               
with Mr. Mittman, but she had spoken to him.                                                                                    
                                                                                                                                
1:39:42 PM                                                                                                                    
CHAIR FRENCH  said he wasn't  inclined to  ask the ACLU  to write                                                               
the statute,  but they did win  an injunction so there  has to be                                                               
some accommodation.                                                                                                             
                                                                                                                                
MS. CARPENETI  said both sides  have filed motions for  a summary                                                               
judgment, but the court hasn't issued an opinion.                                                                               
                                                                                                                                
CHAIR FRENCH asked how long the motions have been pending.                                                                      
                                                                                                                                
MS.  CARPENETI said  she'd  find out,  but  she believes  they're                                                               
fairly recent.                                                                                                                  
                                                                                                                                
SENATOR  COGHILL   asked  if   the  amended   language  regarding                                                               
"reckless disregard for  the age of the child" would  be a second                                                               
line of proof.                                                                                                                  
                                                                                                                                
MS. CARPENETI answered  it would require the state  to prove that                                                               
the  child was  under  age  16 and  the  person distributing  the                                                               
material was reckless  as to that fact. "Reckless"  is defined in                                                               
the  statutes as  knowing there  is a  high probability  that the                                                               
person  would be  under age  16 and  knowingly disregarding  that                                                               
fact.                                                                                                                           
                                                                                                                                
SENATOR COGHILL  said he was  trying to figure out  why "reckless                                                               
regard" was used instead of "ignoring" or "disregard."                                                                          
                                                                                                                                
1:41:39 PM                                                                                                                    
CHAIR   FRENCH  explained   that  it's   easier  to   prove  than                                                               
"intentional."                                                                                                                  
                                                                                                                                
MS. CARPENETI said this is the  crux of the lawsuit. The argument                                                               
is that  the state  would have  to prove that  the person  who is                                                               
distributing the material knows that  the person is under age 16.                                                               
DOL  uses  the  culpable  mental state  of  "reckless  disregard"                                                               
because it's  a lower  standard. However,  it still  requires the                                                               
state to prove that the person  knew that there was a substantial                                                               
risk that the  person was under age 16  and knowingly disregarded                                                               
that risk.                                                                                                                      
                                                                                                                                
SENATOR COGHILL  surmised that this  is because it's so  easy for                                                               
people to get false IDs.                                                                                                        
                                                                                                                                
CHAIR FRENCH  said he  believes it's less  than that;  you seldom                                                               
ask for identification from anyone  you communicate with, but you                                                               
have a general idea of their age.                                                                                               
                                                                                                                                
SENATOR WIELECHOWSKI asked  why the court said  this violated the                                                               
First Amendment.                                                                                                                
                                                                                                                                
MS.  CARPENETI  said  she  would   follow  up  and  provide  that                                                               
information.                                                                                                                    
                                                                                                                                
1:43:48 PM                                                                                                                    
MSL CARPENETI  continued with the  analysis. Section 10  adds two                                                               
new  crimes   to  the  criminal  code   dealing  with  misconduct                                                               
involving  confidential  information  in  the  first  and  second                                                               
degrees. This  is not specific to  children but it fits  with the                                                               
theme of using new technology  to victimize people. She mentioned                                                               
merchants  that ask  for  a  driver's license  and  then use  the                                                               
information,  sometimes to  commit  a crime;  and new  technology                                                               
that   collects   personal   identification   and   credit   card                                                               
information from  a person's satchel, backpack,  or purse without                                                               
opening it.                                                                                                                     
                                                                                                                                
MS. CARPENETI said that "confidential  information" is defined as                                                               
"information that is defined as  confidential by law." Responding                                                               
to questions,  she agreed to  provide a  list of the  things that                                                               
would  be considered  confidential, and  suggested the  committee                                                               
decide   how   broadly   it  wanted   to   define   "confidential                                                               
information."                                                                                                                   
                                                                                                                                
1:45:49 PM                                                                                                                    
SENATOR PASKVAN  asked if  there's a product  on the  market that                                                               
would shield any  personal information that's inside  a wallet or                                                               
purse.                                                                                                                          
                                                                                                                                
MS. CARPENETI said  she's heard that some women put  a lead liner                                                               
in their purse, but she hasn't heard of anything else.                                                                          
                                                                                                                                
SENATOR  MCGUIRE noted  that she  worked  on legislation  several                                                               
years ago that would inform consumers  if RFID chips were used in                                                               
things like a Carrs card, but  the bill didn't advance because of                                                               
wide-spread opposition.  She asked if  DOL had thought  about the                                                               
scenarios in which that information  would be obtained and if the                                                               
courts would be filled with prosecutions for this new crime.                                                                    
                                                                                                                                
MS. CARPENETI  replied she'd certainly  look at the  minutes from                                                               
those hearings to make sure  they'd thought through the different                                                               
scenarios.                                                                                                                      
                                                                                                                                
1:49:23 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if  the bill  could also  classify as                                                               
confidential   things  involving   biometrics,  the   methods  of                                                               
identifying  a  person  based  on  things  like  fingerprints  or                                                               
retinal scans.                                                                                                                  
                                                                                                                                
MS.  CARPENETI said  she would  follow  up, but  the statutes  do                                                               
identify certain health records as confidential.                                                                                
                                                                                                                                
Continuing with Section 10, she  said the first degree provision,                                                               
which is a class A  misdemeanor, would be taking the confidential                                                               
information  and using  it  to  commit a  crime  or  to obtain  a                                                               
benefit.  She noted  that the  statutes  define "benefit"  rather                                                               
broadly.                                                                                                                        
                                                                                                                                
Section 11 clarifies  that a person may be  prosecuted for online                                                               
enticement of  a minor  and for  sending an  explicit image  of a                                                               
minor if  the minor was in  Alaska, even if the  defendant was in                                                               
another jurisdiction  at the  time that he  or she  committed the                                                               
prohibited conduct.                                                                                                             
                                                                                                                                
1:51:02 PM                                                                                                                    
Section 12  amends AS 12.55.125(i),  the sentencing  statutes for                                                               
sex crimes, by  conforming the terms of  imprisonment for persons                                                               
who commit unlawful exploitation of  a minor or online enticement                                                               
of a  minor to the  correct level in  accord with the  changes in                                                               
Sections 3-5 of the bill.                                                                                                       
                                                                                                                                
SENATOR PASKVAN suggested drafting the  law to make it illegal to                                                               
be in possession of technology that is used for wrongdoing.                                                                     
                                                                                                                                
CHAIR FRENCH said it's like possession of burglary tools.                                                                       
                                                                                                                                
MS. CARPENETI said she'd have to  think about it because it would                                                               
have to be a specific intent crime.                                                                                             
                                                                                                                                
SENATOR PASKVAN opined that society  should be most worried about                                                               
the people  who have  access to equipment  that can  get personal                                                               
information as  they walk  by you  on the  street. If  they don't                                                               
have  a  legitimate reason  for  possessing  this equipment,  the                                                               
presumption would be that they're using it to steal information.                                                                
                                                                                                                                
SENATOR  MCGUIRE suggested  using the  Oregon law  that prohibits                                                               
the possession  of a radar  detector as  a model and  including a                                                               
rebuttable  presumption for  proving  that  there's a  legitimate                                                               
reason for possessing the equipment.                                                                                            
                                                                                                                                
1:53:51 PM                                                                                                                    
SENATOR  WIELECHOWSKI   asked  how  "unlawful   exploitation"  is                                                               
defined on page 7, line 9.                                                                                                      
                                                                                                                                
MS.  CARPENETI replied  it's the  crime that's  in AS  ll.41.455,                                                               
unlawful exploitation  of a minor.  Basically, it's  the creation                                                               
of child pornography.                                                                                                           
                                                                                                                                
CHAIR  FRENCH asked  how often  DOL prosecutes  online enticement                                                               
and unlawful exploitation of a minor.                                                                                           
                                                                                                                                
MS. CARPENETI  replied there were  7 cases filed last  year under                                                               
the unlawful  exploitation of a  minor statute and 4  cases filed                                                               
under the online enticement of a minor statute.                                                                                 
                                                                                                                                
CHAIR  FRENCH  said  he  has  some  concern  with  enhancing  the                                                               
penalties for crimes that are rarely prosecuted.                                                                                
                                                                                                                                
MS. CARPENETI  responded that  these cases  are very  serious and                                                               
shocking; Sergeant  DeGraaf was  prepared to  testify in  a House                                                               
committee about some of the cases that have been prosecuted.                                                                    
                                                                                                                                
1:56:27 PM                                                                                                                    
CHAIR FRENCH  said he could  not agree  more that these  are very                                                               
serious crimes.                                                                                                                 
                                                                                                                                
MS. CARPENETI  said it's DOL's  position that the  seriousness of                                                               
these crimes is ample justification of the penalties.                                                                           
                                                                                                                                
SENATOR  COGHILL asked  if these  cases  have other  co-occurring                                                               
charges, like kidnapping.                                                                                                       
                                                                                                                                
MS. CARPENETI  said most  of the cases  of child  kidnapping also                                                               
have sexual assaults  and she suspects that it would  be the same                                                               
with these. She offered to follow up.                                                                                           
                                                                                                                                
SENATOR  MCGUIRE  mentioned  the  three  strikes  law  and  asked                                                               
Senator  French to  clarify what  he meant  when he  talked about                                                               
increasing the penalties.                                                                                                       
                                                                                                                                
CHAIR FRENCH said  the section the committee  was just discussing                                                               
incorporates these crimes into the  three strikes scheme. He then                                                               
asked  Ms. Carpeneti  if under  this  bill a  second offense  for                                                               
unlawful  exploitation  of  a  minor  would  be  an  unclassified                                                               
felony, eligible for a 99 year sentence.                                                                                        
                                                                                                                                
1:59:36 PM                                                                                                                    
MS.  CARPENETI  replied that  would  need  to  be stated  in  the                                                               
statute.                                                                                                                        
                                                                                                                                
CHAIR  FRENCH summarized  that the  first offense  would be  an A                                                               
felony, the second  would be an A felony, and  the third would be                                                               
the third strike.                                                                                                               
                                                                                                                                
MS. CARPENETI  clarified that unlawful  exploitation of  a minor,                                                               
which is the creation of this  material, is already in the felony                                                               
sentencing  provisions,  but online  enticement  of  a minor  was                                                               
somehow left out of the  three strikes provision. Under this bill                                                               
it would be a class B felony for  a person who is not required to                                                               
register as a sex offender.                                                                                                     
                                                                                                                                
CHAIR  FRENCH  commented that  in  Alaska  transmission of  child                                                               
pornography  is   horrifically  and  shockingly   prevalent.  The                                                               
resources  that are  being poured  in and  the level  of activity                                                               
would suggest more than four prosecutions a year.                                                                               
                                                                                                                                
MS. CARPENETI said she hopes it will get better.                                                                                
                                                                                                                                
CHAIR  FRENCH  asked if  the  expanded  subpoena power  would  be                                                               
included in this bill in the form of a committee substitute.                                                                    
                                                                                                                                
MS.  CARPENETI answered  yes; she  knows the  committee would  be                                                               
interested in that.                                                                                                             
                                                                                                                                
MS. CARPENETI said  Section 13 deals with  probation officers. It                                                               
clarifies  that while  the commissioner  of corrections  provides                                                               
probation  officers   to  the  superior  court   for  the  active                                                               
supervision of  a person on  probation for felony  offenses, it's                                                               
not required.  The commissioner  may, at  his or  her discretion,                                                               
also  provide probation  officers for  the active  supervision of                                                               
persons released for misdemeanor offenses.                                                                                      
                                                                                                                                
Senator French opened public testimony.                                                                                         
                                                                                                                                
2:04:08 PM                                                                                                                    
TONY  NEWMAN,  Social  Services   Program  Officer,  Division  of                                                               
Juvenile  Justice,  Department  of  Health  and  Social  Services                                                               
(DHSS),  said  DJJ  is concerned  about  the  way  communications                                                               
technology  and  social  media   are  outpacing  the  ability  to                                                               
understand how they impact young  people. Several of the offenses                                                               
that are  the focus of SB  72 can be committed  by unthinking and                                                               
impulsive youths  who think  it's little more  than a  prank, but                                                               
the consequences can be very  long-term and damaging for victims.                                                               
DJJ appreciates that  the governor and the Department  of Law are                                                               
trying to  get ahead of  these issues  before too many  lives are                                                               
ruined.                                                                                                                         
                                                                                                                                
Alaska has a juvenile justice  system that recognizes that minors                                                               
should be managed differently than  adults. The DJJ mission is to                                                               
hold  youth accountable  when they  commit offenses,  but at  the                                                               
same time to  provide opportunities to keep  them from continuing                                                               
to make  mistakes. The bill strikes  a balance and allows  DJJ to                                                               
appropriately  respond  to the  juvenile  given  his/her risk  to                                                               
reoffend  and  his/her needs.  For  example,  the division  could                                                               
refer  a youth  to  a diversion  program such  as  a youth  court                                                               
without requiring them to go through formal court proceedings.                                                                  
                                                                                                                                
The  exception is  the increase  in  the charge  class level  for                                                               
unlawful  exploitation of  a minor.  Class A  felonies against  a                                                               
person are known in the  juvenile system as auto-waiver offenses;                                                               
youths  age 16  and age  17 are  referred directly  to the  adult                                                               
criminal justice  system. Unlawful exploitation  of a minor  is a                                                               
serious offense, but DJJ believes  that when a youth commits this                                                               
crime  it is  counterproductive to  automatically waive  him into                                                               
the  adult  system.  DOL  agrees  and  is  working  to  craft  an                                                               
amendment to address this issue.                                                                                                
                                                                                                                                
2:06:50 PM                                                                                                                    
QUINLAN STEINER, Public Defender for  the State of Alaska, Public                                                               
Defender Agency,  said his  comments would  center on  two topics                                                               
related to  the unintended  consequences in Section  7 of  SB 72.                                                               
The  first  is   the  breadth  and  nature  of   who  it  covers.                                                               
Potentially couples  who exchange photographs via  email would be                                                               
in  violation of  the  statute.  It would  also  cover a  broader                                                               
spectrum  like grandparents  who  electronically  send photos  of                                                               
grandchildren to  their friends  or post  them on  Facebook. That                                                               
would  be criminalized  by this  statute. He  suggested narrowing                                                               
the  language to  target  the intended  situation,  which is  the                                                               
distribution   where   the    broader   distribution   would   be                                                               
embarrassing.  He also  suggested the  bill provide  an exclusion                                                               
for people who are taking and involved in the pictures.                                                                         
                                                                                                                                
MR.  STEINER said  the  other  concern relates  to  the C  felony                                                               
penalty  for  publishing or  distributing  the  depiction on  the                                                               
Internet. The bill refers to  the broad definition of "Internet,"                                                               
which  refers  to   its  physical  nature  and   how  things  are                                                               
transferred. It  would in fact  become a  felony to take  a photo                                                               
and email  it to one person  unless a printed photo  was used for                                                               
the publishing  and distribution.  He said  he believes  what was                                                               
intended was  posting on the  Internet for public  viewing rather                                                               
than  simple  distribution.  He described  this  as  a  technical                                                               
problem.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  said the  committee is focused  on getting  at this                                                               
without including too much.                                                                                                     
                                                                                                                                
2:10:33 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 72 in committee.                                                                        
                                                                                                                                

Document Name Date/Time Subjects
SB 11 Sponsor Statement.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Support Material.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Sectional Summary 27-LS0087A.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Letters.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 39 Sponsor Statement.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Sectional.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 One Page Summary.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Editorials.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Alaska Poll Results.pdf SJUD 2/16/2011 1:30:00 PM
SB 39