Legislature(2019 - 2020)BELTZ 105 (TSBldg)

02/13/2019 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 12 ASSAULT; SEX OFFENSES; SENTENCING CREDIT TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
*+ SB 35 CRIMES;SEX CRIMES;SENTENCING; PAROLE TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB 12-ASSAULT; SEX OFFENSES; SENTENCING CREDIT                                                                     
                                                                                                                                
1:32:16 PM                                                                                                                    
CHAIR HUGHES announced  that the first order of  business would be                                                              
SPONSOR SUBSTITUTE  FOR SENATE  BILL NO. 12,  "An Act  relating to                                                              
crime  and criminal  procedure;  relating  to assault  and  sexual                                                              
assault;  relating  to harassment;  relating  to  credit toward  a                                                              
sentence of  imprisonment for  time spent  in a treatment  program                                                              
or under  electronic monitoring;  and providing  for an  effective                                                              
date."                                                                                                                          
                                                                                                                                
CHAIR HUGHES  remarked that she  scheduled SB 12  and SB 35  to be                                                              
heard  together since  these  bills attempt  to  close a  loophole                                                              
that allowed  for the  Justin Schneider  case.  This bill,  SB 12,                                                              
has similar  provisions to SB 35,  a crime bill introduced  by the                                                              
Governor.  However, he  felt it  was  important to  have a  stand-                                                              
alone bill  since it improves the  chances that it could  make its                                                              
way through  the legislature this  year and highlights  the desire                                                              
to eliminate free passes for such crimes.                                                                                       
                                                                                                                                
1:33:10 PM                                                                                                                    
SENATOR MICCICHE,  as sponsor  of SB  12, characterized  this bill                                                              
as  the  "Justin   Schneider  Loophole  Elimination   Act."  After                                                              
further research, he introduced a sponsor substitute for SB 12.                                                                 
                                                                                                                                
1:34:05 PM                                                                                                                    
CHAIR HUGHES  clarified that  the committee  would be  considering                                                              
[work  order 31-LS0263\U,  referred to  as] Version  U, which  was                                                              
read across the floor.                                                                                                          
                                                                                                                                
1:34:20 PM                                                                                                                    
SENATOR MICCICHE  said that he has  a wife and four  daughters and                                                              
has been  working to  address the issue  of domestic  violence and                                                              
sexual assault in  Alaska for many years. He said  he was appalled                                                              
with the  results of the Justin  Schneider case just as  were many                                                              
Alaskans. He  paraphrased from his  sponsor statement,  which read                                                              
as follows:                                                                                                                     
                                                                                                                                
     Sponsor  Substitute   for  Senate  Bill  12   (SSSB  12)                                                                   
     eliminates   loopholes   in   Alaska   law   that   have                                                                   
     contributed  to the  inability to  hold perpetrators  of                                                                   
     sexual   assault   adequately  accountable   for   their                                                                   
     actions. The  bill will prove  to victims that  Alaskans                                                                   
     have had  enough and will  stand with them  to prosecute                                                                   
     and   incarcerate   sexual  predators   while   creating                                                                   
     adequate deterrence for future violent crimes.                                                                             
                                                                                                                                
1:34:56 PM                                                                                                                    
     SSB12  removes  the "Schneider  Loopholes"  in  Alaska's                                                                   
     criminal  code that  allowed a  violent sexual  predator                                                                   
     to  walk free  without  jail  time last  September.  The                                                                   
     result  of   Justin  Schneider  walking   free  garnered                                                                   
     national  attention as  Alaskans stood  by in  disbelief                                                                   
     that  such   a  free  pass  could  occur   after  Justin                                                                   
     Schneider  brutally strangled  a woman  to the point  of                                                                   
     unconsciousness  and then  ejaculated on  her. The  plea                                                                   
     deal  decision   also  resulted  in  the   unprecedented                                                                   
     removal  of a judge  (Corey) for  decisions made  in the                                                                   
     case.                                                                                                                      
                                                                                                                                
1:36:40 PM                                                                                                                    
     SSSB12 will  improve our sexual assault laws  in several                                                                   
     important  ways: 1)  it will  classify unwanted  contact                                                                   
     with semen as  a sexual crime, which  means perpetrators                                                                   
     can be  required to register  as sex offenders  for this                                                                   
     crime,  2) it  will require  that  strangulation to  the                                                                   
     point of  unconsciousness is  defined as assault  in the                                                                   
     first  degree,  which carries  a  sentence  of 5  to  20                                                                   
     years,  and 3)  it would  eliminate  credit toward  time                                                                   
     served for electronic monitoring.                                                                                          
                                                                                                                                
     In  recent years,  one  outrageous story  after  another                                                                   
     about  criminals  getting   a  slap  on  the  wrist  has                                                                   
     dominated our  headlines. The case of  Justin Schneider,                                                                   
     however,  forces  us  to confront  just  how  badly  our                                                                   
     criminal  justice system  has been  failing victims  and                                                                   
     survivors of  sexual assault. SSSB12 will define  how we                                                                   
     prosecute  specific  areas  with loopholes  in  domestic                                                                   
     violence and  sexual assault. I look forward  to working                                                                   
     with  my   colleagues  in   the  legislature  and   with                                                                   
     Governor   Dunleavy's  administration   to  ensure   the                                                                   
     safety of all Alaskans.                                                                                                    
                                                                                                                                
     It is time  to stand up and say enough  is enough; there                                                                   
     will  be  no   more  free  passes  for   violent  sexual                                                                   
     perpetrators  in   Alaska.  I  encourage   support  from                                                                   
     legislators  and the Alaska  public to expedite  passage                                                                   
     of  SSSB12,  eliminating the  "Schneider  Loopholes"  in                                                                   
     our state's  criminal code,  and I respectfully  request                                                                   
     support for this important legislation.                                                                                    
                                                                                                                                
1:38:16 PM                                                                                                                    
SENATOR MICCICHE  said that he  worked with the administration  on                                                              
the  crime bills.  He said  that  understanding the  logic of  the                                                              
changes  is  very  important  and  Mr.  Skidmore  can  assist  the                                                              
committee in that regard.                                                                                                       
                                                                                                                                
1:38:45 PM                                                                                                                    
EDRA   MORLEDGE,    Staff,   Senator   Micciche,    Alaska   State                                                              
Legislature, provided a sectional analysis of SSSB 12, which                                                                    
read as follows:                                                                                                                
                                                                                                                                
     SSSB 12 Sectional Summary v. U                                                                                             
                                                                                                                                
     An  Act  relating  to  assault   in  the  first  degree;                                                                   
     relating  to  sex  offenses;   and  relating  to  credit                                                                   
     toward a  sentence of imprisonment  for time spent  in a                                                                   
     treatment program or under electronic monitoring.                                                                          
                                                                                                                                
1:38:53 PM                                                                                                                    
     Title Change:                                                                                                              
     Section  1:  Amends  AS  11.41.200(a),  assault  in  the                                                                   
     first  degree, to  add new  subsection 5,  which adds  a                                                                   
     person "knowingly  causes another to become  unconscious                                                                   
     by  means   of  a  dangerous  instrument"   and  defines                                                                   
     "dangerous   instrument"    in   accordance   with   the                                                                   
     definition in AS 11.81.900:                                                                                                
                                                                                                                                
     Section  2: Amends  AS 11.41.425(a),  sexual assault  in                                                                   
     the  third degree, to  add subsection  (7), "engages  in                                                                   
     masturbation  and ejaculates  on  a person  without  the                                                                   
     consent of that person."                                                                                                   
                                                                                                                                
     Section 3:  Amends AS 11.61.118(a)  to clarify  that the                                                                   
     crime  of   harassment  in   the  first  degree,   which                                                                   
     includes  offensive  physical  "contact  with  human  or                                                                   
     animal blood,  mucus, saliva, semen, urine,  vomitus, or                                                                   
     feces," is  separate from the  sex offense contained  in                                                                   
     this bill.                                                                                                                 
                                                                                                                                
1:40:09 PM                                                                                                                    
     Section   4:   Amends   11.81.900(b)(60)    to   include                                                                   
     "knowingly  causing  the  victim to  come  into  contact                                                                   
     with ejaculate" to the definition of "sexual contact."                                                                     
                                                                                                                                
     Section 5: Amends  AS 12.10.010(b) to provide  for a 10-                                                                   
     year statute  of limitation for the new  crime described                                                                   
     in section 2 of this bill.                                                                                                 
                                                                                                                                
     Section  6:  Repeals  AS  12.55.027(d)  stating  that  a                                                                   
     court  "may  not  grant credit  against  a  sentence  of                                                                   
     imprisonment  for time spent  in a private residence  or                                                                   
     under electronic monitoring."                                                                                              
                                                                                                                                
     Section   7:   Amends   AS    12.55.027(e)   to   remove                                                                   
     "electronic  monitoring"  as   an  option  for  claiming                                                                   
     credit towards a sentence of imprisonment.                                                                                 
                                                                                                                                
     Section 8:  Repeals AS  55.027(g)(3), which allowed  for                                                                   
     sentencing credit for sex crimes.                                                                                          
                                                                                                                                
     Section  9: Applicability.  Section  10: Effective  date                                                                   
     clause.                                                                                                                    
                                                                                                                                
1:42:32 PM                                                                                                                    
MS.  MORLEDGE explained  that the  Department of  Law raised  some                                                              
issues  during discussions  on the  bill.  She reviewed  suggested                                                              
language  changes the committee  might consider.  The language  in                                                              
Section 2  is duplicative.  The language in  Section 3  relates to                                                              
harassment in the  first degree. The sponsor would  like to remove                                                              
the term  "semen" from  that section and  replace it  with "coming                                                              
into  contact  with  semen"  as  a  separate  sexual  offense.  In                                                              
Section 4, the  sponsor would like to change  the term "ejaculate"                                                              
back to  "semen." She  deferred  to Mr. Skidmore  to provide  more                                                              
details.                                                                                                                        
                                                                                                                                
1:43:20 PM                                                                                                                    
JOHN  SKIDMORE,   Deputy  Attorney  General;   Director,  Criminal                                                              
Division,  Department of  Law, reviewed  proposed  changes to  the                                                              
sponsor substitute  for SB 12 He  agreed that paragraph  (7) of SB                                                              
12  is duplicative  after  the definition  for  sexual contact  in                                                              
Section 4 [AS 11.81.900(b)(60)]  of the bill is changed,  so it is                                                              
not  necessary  to  have  a second  [paragraph],  that  it  was  a                                                              
different concept  that had  been considered.  He said that  it is                                                              
cleaner to remove the language.                                                                                                 
                                                                                                                                
He  referred to  Section 3,  on  page 3  of SSSB  12, to  proposed                                                              
language   in  AS   11.61.118(a)(1),   which   read,  "(1)   under                                                          
circumstances  not  proscribed in  AS  11.41.425(a)(7),"  however,                                                          
that was  language that  was proposed  to be added,  but if  it is                                                              
removed  the remaining  language  does not  make  sense. The  word                                                              
"semen"  can be  removed because  it  will be  covered by  "sexual                                                              
contact" in  Section 4. The Department  of Law always  advises the                                                              
legislature  to use terms  currently found  in statute.  These are                                                              
terms  either  defined  by  case  law or  that  are  used  because                                                              
practitioners  typically use  them.  Whenever a  new or  different                                                              
term is used,  it begs the question  of why that term  changed, he                                                              
said. He recommended  that "semen" be used instead  of "ejaculate"                                                              
for the purpose of consistency.                                                                                                 
                                                                                                                                
1:45:09 PM                                                                                                                    
SENATOR  MICCICHE remarked  that  it is  uncomfortable to  discuss                                                              
these terms, which  emphasizes the importance of the  bill. He has                                                              
held  discussions  with  the  legislative  attorneys,  Legislative                                                              
Legal   Services,  Legislative   Affairs  Agency   and  with   Mr.                                                              
Skidmore, Deputy  Attorney General;  Director, Criminal  Division,                                                              
Department of  Law, as  to whether the  term "semen"  requires the                                                              
presence of sperm, and whether the term "ejaculate" does not.                                                                   
                                                                                                                                
MR. SKIDMORE  said that  he subsequently  spoke to the  Department                                                              
of Public  Safety's  [Scientific Crime  Detection Laboratory]  and                                                              
based on  his conversation with the  lab, the term "semen"  is the                                                              
better  term to  use since  it does  not require  the presence  of                                                              
spermatozoa and the  lab can test for the substance.  This term is                                                              
already used  in statute  and introducing  a different  term could                                                              
raise questions about the precise term.                                                                                         
                                                                                                                                
1:46:30 PM                                                                                                                    
SENATOR  KIEHL   related  his  understanding  that   Mr.  Skidmore                                                              
indicated  that changing  the definition  of  "sexual contact"  to                                                              
include "semen" meant  it was not necessary to add  the penalty of                                                              
sexual  assault in  the third degree.  He asked  for the  specific                                                              
reference.                                                                                                                      
                                                                                                                                
MR.  SKIDMORE referred  to page  2,  Section 2  of SSSB  12 to  AS                                                              
11.41.425(a), which read as follows:                                                                                            
                                                                                                                                
     (a) An offender commits the crime of sexual assault in                                                                     
     the third degree if the offender                                                                                           
      (1) engages in sexual contact with a person who the                                                                       
     offender knows is ?                                                                                                        
                                                                                                                                
He said  that the existing statutes  and the framework  for sexual                                                              
assault  and  sexual  abuse  of   a  minor  have  three  different                                                              
categories  of  elements  to  create   a  cascading  framework  of                                                              
conduct  that  is  criminalized.   The  three  areas  include  the                                                              
conduct itself,  the mental state  of the victim, and  whether the                                                              
person has another relationship with the child.                                                                                 
                                                                                                                                
MR.  SKIDMORE elaborated  on  the three  elements,  such that  the                                                              
conduct  first  considers  whether  it is  sexual  penetration  or                                                              
sexual  contact. Second,  it  considers the  mental  state of  the                                                              
victim, and  whether it  is without  consent or  if the  victim is                                                              
mentally   incapable,  incapacitated,   or   unaware.  The   third                                                              
category  considers   whether  the  person  who   engages  in  the                                                              
criminal  conduct has another  relationship,  for example,  if the                                                              
offender is a parent, coach, or teacher of the victim.                                                                          
                                                                                                                                
He  said that  these elements  create a  rather complex  cascading                                                              
framework.  However, only  adding  the language  in paragraph  (7)                                                              
would  ignore the  rest of  the existing  framework. Altering  the                                                              
definition  of   sexual  contact   will  take  advantage   of  the                                                              
framework  developed over  time by  case law  for consistency,  he                                                              
said.                                                                                                                           
                                                                                                                                
1:49:21 PM                                                                                                                    
SENATOR  KIEHL asked  whether within  that  framework, this  would                                                              
vary the  kind of contact  being defined  from the most  egregious                                                              
example to the least horrible one.                                                                                              
                                                                                                                                
MR.  SKIDMORE  answered  that  sexual  contact  is  found  in  two                                                              
different types  of crimes: sexual  assault and sexual abuse  of a                                                              
minor.  He reviewed  the  penalties for  sexual  assault with  the                                                              
most serious  offense that  encompasses contact,  which is  sexual                                                              
assault in  the second degree and  is a class B felony.  It ranges                                                              
to  sexual assault  in  the  fourth degree,  which  is  a class  A                                                              
misdemeanor.  Sexual  abuse  of   a  minor  that  includes  sexual                                                              
contact is  classified as sexual  abuse of  a minor in  the second                                                              
degree  and  is a  class  B felony.  He  would  need to  refer  to                                                              
statutes to  confirm whether the  penalties range to  sexual abuse                                                              
of a minor in the fourth degree.                                                                                                
                                                                                                                                
1:50:28 PM                                                                                                                    
SENATOR KIEHL  asked whether  these cascading  levels of  offenses                                                              
fit with the sponsor's intent.                                                                                                  
                                                                                                                                
1:51:08 PM                                                                                                                    
MS. MORLEDGE  asked for further  clarification if his  question is                                                              
whether  adding  the definition  would  accomplish  the  sponsor's                                                              
goal.                                                                                                                           
                                                                                                                                
SENATOR  KIEHL related  his  understanding  that  the penalty  was                                                              
originally  a class  C felony, but  under the  bill the  penalties                                                              
fall on a spectrum.                                                                                                             
                                                                                                                                
SENATOR  MICCICHE answered  that  he was  unsure  of his  specific                                                              
question.                                                                                                                       
                                                                                                                                
1:52:04 PM                                                                                                                    
CHAIR  HUGHES remarked  it would  be helpful  if Mr. Skidmore  has                                                              
knowledge of how other crime bills might impact this one.                                                                       
                                                                                                                                
1:52:24 PM                                                                                                                    
MR. SKIDMORE answered  that nothing in SB 35 or  other crime bills                                                              
will impact  the sentencing  being discussed  in SB 12.  He stated                                                              
that the other  crime bills affect non-sex crimes.  In response to                                                              
Senator Kiehl,  he directed attention  to the language on  page 3,                                                              
of   SSSB  12,   to  paragraph   (7),  which   read  "engages   in                                                              
masturbation and  ejaculates on  a person without  consent," which                                                              
would   ignore   the   circumstances   in  which   a   person   is                                                              
incapacitated   or   mentally  incapable.   He   related   several                                                              
scenarios  to illustrate  that incapacitated  people would  not be                                                              
covered  by  this  subsection.   However,  by  adding  it  to  the                                                              
definition  of  "sexual  contact,"  all  of  the  other  scenarios                                                              
discussed would be  covered. Omitting it would  risk missing large                                                              
portions of  conduct that the  legislature already  has determined                                                              
should  be  criminalized.  He acknowledged  that  the  bill  would                                                              
increase  some penalties  from  a class  C  to a  class B  felony.                                                              
However,  the legislature  has already decided  to define  "sexual                                                              
contact" as including  "genitals, anus, or female  breasts," which                                                              
is classified as  a class B felony under the law.  He said that to                                                              
make every  penalty  a class C  felony would  ignore the  existing                                                              
framework and  could result in  unintended consequences  or create                                                              
gaps in  the law.  He related  his understanding  is that  SSSB 12                                                              
intends  to  address  a gap  with  unjust  contact  that  occurred                                                              
without a true penalty for the offender.                                                                                        
                                                                                                                                
1:55:32 PM                                                                                                                    
SENATOR MICCICHE  expressed  concern over  the removal of  "semen"                                                              
from AS 11.61.118(a)  since it was originally intended  to protect                                                              
correctional   and   law  enforcement   officers   from   unwanted                                                              
offensive  contact   with  human  fluid.  He  asked   for  further                                                              
clarification whether  it would be considered a  sexual assault if                                                              
someone flung semen at another person.                                                                                          
                                                                                                                                
MR. SKIDMORE answered  yes. He said he grappled with  that but was                                                              
not able  to differentiate  in legal terms  the conduct  of coming                                                              
into  contact with  semen inside  a  correctional facility  versus                                                              
the same  conduct outside the facility  that could be proved  in a                                                              
court of  law. He considered other  types of substances  or bodily                                                              
fluids, including  human  or animal blood,  mucus, saliva,  urine,                                                              
vomitus,  and feces,  but none  of these  substances are  produced                                                              
through sexual  activity. However,  semen cannot be  found without                                                              
some type  of sexual activity,  he said.  He pointed out  that the                                                              
provision of harassment  was enacted some time ago  in response to                                                              
conduct  within  the  state  correctional   facilities,  in  which                                                              
inmates  were engaging  in this  behavior  to harass  correctional                                                              
officers  in  facilities.  However,   it  was  never  designed  to                                                              
address sexual conduct, he said.                                                                                                
                                                                                                                                
MR.  SKIDMORE concluded  that  the  criminal justice  system  must                                                              
rely on the  discretion of those  within the system. It  is nearly                                                              
impossible  to  try  to  legislate   every  possible  hypothetical                                                              
situation.  Instead, the  state  relies on  discretion, such  that                                                              
prosecutors  would review  the facts  of  each case.  He found  it                                                              
highly unlikely that  going forward cases would be  handled in the                                                              
same way as the Justin Schneider case was handled.                                                                              
                                                                                                                                
1:59:26 PM                                                                                                                    
SENATOR MICCICHE asked  if a urine sample sent to  a lab contained                                                              
trace amounts of  semen, whether the person would  be charged with                                                              
offensive physical contact rather than sexual assault.                                                                          
                                                                                                                                
MR. SKIDMORE  said he was  not an expert  in that analysis,  so in                                                              
those instances he  would consult with the lab.  He indicated that                                                              
prosecutors  would seek to  determine the  core conduct  and would                                                              
not  likely prosecute  it at  a  higher level.  He explained  that                                                              
every  crime must  have two  elements, a  mens rea  or the  mental                                                              
element, and the  actus rea, which is actual act.  In the scenario                                                              
in which an inmate  would urinate and fling it  on another person,                                                              
the inmate would  need to know the urine contained  semen in order                                                              
to be charged  at a higher  level of crime. The  prosecution would                                                              
need  to  prove  the  knowingly  intent,  which  would  be  highly                                                              
unlikely to prove, he said.                                                                                                     
                                                                                                                                
2:02:07 PM                                                                                                                    
CHAIR HUGHES  read the  definition of mucus,  which is  "a viscous                                                              
slimy  mixture of  mucins, water,  electrolytes, epithelial  cells                                                              
and  leukocyte  that  is  secreted by  glands  lining  the  nasal,                                                              
esophageal,  and the  nasal esophageal,  and  other body  cavities                                                              
and  serves primarily  to  protect  and lubricate  surfaces."  She                                                              
offered her belief that this scenario would be covered.                                                                         
                                                                                                                                
MR. SKIDMORE was  unsure how the lab would define  it, but the lab                                                              
can determine if a substance is semen or something else.                                                                        
                                                                                                                                
CHAIR HUGHES  clarified that if  something is thrown and  not used                                                              
for  a sexual  act, the  definition of  mucus is  broad enough  to                                                              
cover it.                                                                                                                       
                                                                                                                                
SENATOR  MICCICHE  offered his  belief  that an  equal  protection                                                              
issue  would  apply   since  a  person  could   also  be  sexually                                                              
assaulted  by a  female.  He said  that he  consulted  the lab  to                                                              
determine if it  could detect a substance [in  females] similar to                                                              
semen  but  was  advised  that   detectible  substances  are  only                                                              
produced by males.                                                                                                              
                                                                                                                                
2:04:28 PM                                                                                                                    
SENATOR  REINBOLD  expressed  concern  with how  the  current  and                                                              
prior  crime  bills  mesh.  For   example,  she  wondered  whether                                                              
granting  credit  against  sentences  for  imprisonment  for  time                                                              
spent  in a  private  residence or  electronic  monitoring was  in                                                              
Senate Bill 91.                                                                                                                 
                                                                                                                                
MR. SKIDMORE  responded that Senate  Bill 91 addressed  electronic                                                              
monitoring  and page 4,  Section 6  of SSSB 12  brings it  back to                                                              
pre-Senate Bill 91 law.                                                                                                         
                                                                                                                                
SENATOR REINBOLD  offered her belief that the  public wants Senate                                                              
Bill 91  repealed. She  hoped that  this process  can be  as clear                                                              
and clean as  possible. She expressed concern that  some penalties                                                              
would be reduced from felonies to misdemeanors in the bill.                                                                     
                                                                                                                                
MR. SKIDMORE  responded that  nothing else in  SSSB 12  relates to                                                              
Senate Bill 91.  He stated that SSSB 12 addresses  gaps in the law                                                              
discovered  in  the  Justin Schneider  case.  The  bill  addresses                                                              
strangulation  by  adding another  subsection  to  assault in  the                                                              
first degree, which  was not previously addressed  in law. Second,                                                              
it  would address  unwanted contact  with semen.  Third, it  would                                                              
address electronic  monitoring by reverting to pre-Senate  Bill 91                                                              
law.                                                                                                                            
                                                                                                                                
2:08:04 PM                                                                                                                    
SENATOR REINBOLD  said that  she preferred to  be briefed  so that                                                              
she fully understands the changes.                                                                                              
                                                                                                                                
SENATOR  MICCICHE  responded  that  SSSB  12  would  isolate  four                                                              
issues that led  to a violent sexual offender not  serving time or                                                              
being required  to be on  a sexual offender  list. First,  SSSB 12                                                              
would reclassify  unwanted contact with  semen as a  sexual crime.                                                              
Second,  it  would  classify masturbation  and  ejaculating  on  a                                                              
person  as sexual  assault  in the  third  degree,  which was  not                                                              
previously a crime.  Third, the bill would  classify strangulation                                                              
as  sexual  assault  in  the  first   degree.  Finally,  it  would                                                              
eliminate electronic  monitoring, which was being  counted as full                                                              
credit towards  incarceration. In  the Justin Schneider  case, the                                                              
offender  was  given full  credit  for  time spent  on  electronic                                                              
monitor and  was never imprisoned  for his heinous  crime. Nothing                                                              
in  SSSB 12  would reduce  the classification  of any  crime to  a                                                              
lower level.                                                                                                                    
                                                                                                                                
2:10:24 PM                                                                                                                    
CHAIR HUGHES  asked Mr.  Skidmore to confirm  that nothing  in the                                                              
bill reduces crime classifications.                                                                                             
                                                                                                                                
MR. SKIDMORE  agreed that  nothing in  the bill reduces  penalties                                                              
Instead, the bill  takes conduct that was criminalized  as a class                                                              
A misdemeanor  under harassment  in the first  degree and  adds it                                                              
to  the definition  of  sexual  contact.  He related  that  sexual                                                              
contact is  found in  several statutes,  including sexual  assault                                                              
and sexual abuse  of a minor. It would increase the  penalty for a                                                              
class A misdemeanor  to a class B  or class C sex felony.  In some                                                              
cases, it would  also retain the classification of  the crime as a                                                              
class A  misdemeanor, but further  classify it as a  sexual crime.                                                              
He was  unsure which  classification would  remain a  misdemeanor,                                                              
but the  crime would  be considered sexual  assault in  the fourth                                                              
degree.  However, the  primary  conduct  of a  case,  such as  the                                                              
Justin  Schneider case,  would  result in  sexual  assault in  the                                                              
third degree,  which is a  class C felony  that carries  a penalty                                                              
of  2-12 years  as opposed  to a  one-year  maximum penalty  under                                                              
harassment.                                                                                                                     
                                                                                                                                
CHAIR HUGHES  asked Mr.  Skidmore to  cite the specific  reference                                                              
for members.                                                                                                                    
                                                                                                                                
2:12:52 PM                                                                                                                    
At-ease.                                                                                                                        
                                                                                                                                
2:15:06 PM                                                                                                                    
CHAIR HUGHES reconvened the meeting.                                                                                            
                                                                                                                                
MR.  SKIDMORE referred  to  AS 11.41.427,  sexual  assault in  the                                                              
fourth degree,  which is  a classified as  a class A  misdemeanor.                                                              
He explained  that this statute  has five subsections.  [Paragraph                                                              
(1) and  (2)] pertain to employees  at a correctional  facility or                                                              
another place  designated  by the commissioner  of the  Department                                                              
of Corrections (DOC)  when the offender engages  in sexual contact                                                              
with  a  person  that the  offender  knows  is  incarcerated.  For                                                              
example, this  would apply to  a correctional officer  who engages                                                              
in  sexual contact  with  someone incarcerated  by  the DOC.  This                                                              
crime  is currently  classified  as  class  A misdemeanor  and  is                                                              
unchanged by the bill.                                                                                                          
                                                                                                                                
He  explained  the  next  [paragraph,  (2)]  refers  to  the  same                                                              
conduct of  sexual contact  by an employee  who engages  in sexual                                                              
penetration with a  person who the offender knows  is committed to                                                              
the  custody  of the  Department  of  Health and  Social  Services                                                              
(DHSS) and the juvenile  victim is 18-19 years of  age. This crime                                                              
is classified  as sexual  assault in the  fourth degree  and would                                                              
also apply to someone who is the legal guardian of the victim.                                                                  
                                                                                                                                
MR.  SKIDMORE  said  that  the   third  instance  [paragraph  (4)]                                                              
relates to  a peace officer  having sexual contact,  with reckless                                                              
disregard, with  a person  in custody or  apparent custody  of the                                                              
law  enforcement  officer,  which  is  classified  as  a  class  A                                                              
misdemeanor.  The penalty  would  increase  if sexual  penetration                                                              
occurred to a class  C felony. The highest level  would pertain to                                                              
engaging in  the conduct  without the  person's consent,  which is                                                              
classified  as a class  B felony.  The penalty  is increased  to a                                                              
class  C  felony  if  the  activity  involved  a  person  who  was                                                              
mentally  incapable,   incapacitated,   or  unaware.   This  would                                                              
increase  the penalty  in the  case  of Justin  Schneider from  30                                                              
days to a range of a 2-12-year sentence.                                                                                        
                                                                                                                                
2:18:00 PM                                                                                                                    
SENATOR REINBOLD  related a scenario in her community  involving a                                                              
police officer  who engaged  in sexual activity  with a  victim in                                                              
custody. She  emphasized that  this is a  very important  issue in                                                              
her community.  She expressed concern  that the classification  is                                                              
a class A misdemeanor, which carries a pretty small penalty.                                                                    
                                                                                                                                
MR. SKIDMORE offered  to review the exemptions  under the statute,                                                              
but the main point  is that this bill will increase  sentences. He                                                              
said  he recognizes  that some  people  might not  agree with  the                                                              
current  statutes for  sexual assault  in the  fourth degree,  but                                                              
this statute has  not been changed by any criminal  justice reform                                                              
bill in the last several years.                                                                                                 
                                                                                                                                
CHAIR  HUGHES related  her understanding  that  the sexual  crimes                                                              
were  excluded from  some  of the  sentence  reductions in  Senate                                                              
Bill 91.                                                                                                                        
                                                                                                                                
MR. SKIDMORE answered that is correct.                                                                                          
                                                                                                                                
SENATOR REINBOLD said, "but not all of them."                                                                                   
                                                                                                                                
MR. SKIDMORE  responded that this  gets complicated because  a few                                                              
statutes  that  people think  of  as  sexual  in nature  were  not                                                              
classified  as  sex  crimes  under  the  sentencing  statutes.  He                                                              
explained  that  SB  35,  which  will  be  discussed  later  today                                                              
intends to address that issue.                                                                                                  
                                                                                                                                
2:20:52 PM                                                                                                                    
SENATOR MICCICHE  asked to address  the concern he has  heard that                                                              
SSSB  12  reduces  how  some crimes  are  handled.  He  asked  Mr.                                                              
Skidmore  to  explain  the  effect of  removing  "semen"  from  AS                                                              
11.61.118(a), which  is classified as harassment.  This bill would                                                              
increase  the seriousness  of the  crime by relocating  it  to the                                                              
sexual assault statutes, he said.                                                                                               
                                                                                                                                
MR. SKIDMORE answered that it would increase the penalties.                                                                     
                                                                                                                                
2:21:46 PM                                                                                                                    
CHAIR  HUGHES  referred  to page  2,  lines  4-6,  of SSSB  12  to                                                              
strangulation. She  asked how it  would be possible to  prove that                                                              
a  person becomes  unconscious.  She  suggested  that  the act  of                                                              
being  strangled  might  be  even  scarier  for  the  victim.  She                                                              
expressed concern  that if unconsciousness  cannot be  proven that                                                              
it might not be possible to prosecute the perpetrator.                                                                          
                                                                                                                                
MR. SKIDMORE emphasized  that assault in the second  degree, which                                                              
is  normally  how  strangulation   is  prosecuted,  has  not  been                                                              
altered  or  changed. He  explained  that  assault in  the  second                                                              
degree indicates  assault by hands  or other objects  that impedes                                                              
or  constricts breathing  or  circulation. He  said  that SSSB  12                                                              
would add  the concept  of causing  someone to become  unconscious                                                              
by  means  of  a  dangerous  instrument.  A  dangerous  instrument                                                              
includes  choking   or  strangulating   them  with   one's  hands.                                                              
Therefore, the lower level of conduct is already covered.                                                                       
                                                                                                                                
This  bill  would create  a  second  tier  to  say if  someone  is                                                              
causing  strangulation  and  the  person  becomes  unconscious,  a                                                              
higher penalty  would apply. He agreed  that this may not  be easy                                                              
or  straightforward; however,  that  does not  mean  it cannot  be                                                              
done. In  fact, to cause unconsciousness  takes a small  amount of                                                              
pressure and  can happen in  less than a  minute. He said  that he                                                              
has been  a prosecutor for 20  years and during that  time victims                                                              
have  reported   that  they  lost  consciousness   and  they  have                                                              
described  how the  world began  to  close in  on them.  Sometimes                                                              
victims  describe being  attacked and  all of  a sudden  realizing                                                              
that they were in  a different room, but they had  no knowledge of                                                              
how that  occurred. Prosecutors would  need to assess the  type of                                                              
detail in a case  that would allow them to prove  to a jury beyond                                                              
a reasonable  doubt that the  person lost consciousness.  However,                                                              
the offender  could still  be convicted of  assault in  the second                                                              
degree, he said                                                                                                                 
                                                                                                                                
CHAIR  HUGHES related  her understanding  that this  crime is  not                                                              
limited  to  sexual  assault  but could  also  apply  to  violence                                                              
without sexual assault.                                                                                                         
                                                                                                                                
MR.  SKIDMORE acknowledged  that  Section 1  of SSSB  12 does  not                                                              
require  the crime  to be of  a sexual  nature and  is related  to                                                              
strangling another person to unconsciousness.                                                                                   
                                                                                                                                
2:26:38 PM                                                                                                                    
CHAIR  HUGHES asked  whether  Justin  Schneider was  charged  with                                                              
strangulation.                                                                                                                  
                                                                                                                                
MR. SKIDMORE  answered yes. He  said Justin Schneider  was charged                                                              
with assault in the second degree and plead to that crime.                                                                      
                                                                                                                                
2:26:57 PM                                                                                                                    
SENATOR REINBOLD expressed concern over potential loopholes.                                                                    
                                                                                                                                
MR. SKIDMORE turned  to the definition in  AS 11.81.900(b)(14)(B),                                                              
which read,  "hands or  other objects when  used to  impede normal                                                              
breathing  or circulation  of blood  by applying  pressure on  the                                                              
throat or  neck or obstructing the  nose or mouth;" and  said this                                                              
language  would  make  it  a  dangerous   instrument.  In  further                                                              
response to Senator  Reinbold, he said he has  not experienced any                                                              
problem with the definition.                                                                                                    
                                                                                                                                
2:29:00 PM                                                                                                                    
SENATOR MICCICHE  explained that people are concerned  that Justin                                                              
Schneider  was   not  charged  with   attempted  murder   for  the                                                              
strangulation   since  a   person  who   becomes  unconscious   is                                                              
literally seconds  away from  death. He  asked whether  intent had                                                              
been the issue.                                                                                                                 
                                                                                                                                
MR.  SKIDMORE  answered   that  the  crime  of   attempted  murder                                                              
specifically  requires  mens  rea [mental  state],  the  conscious                                                              
objective to  cause the  result of killing  someone. He  said that                                                              
the prosecution would  need to prove the conscious  objective, and                                                              
in the  Justin Schneider's case  the prosecutors did not  have any                                                              
evidence  that  he  was attempting  to  kill  her.  However,  many                                                              
instances in  which a perpetrator  strangles someone  could result                                                              
in a murder charge.                                                                                                             
                                                                                                                                
2:30:49 PM                                                                                                                    
SENATOR MICCICHE  asked for further  clarification on  intent when                                                              
someone  is  strangled to  the  point  of unconsciousness  and  is                                                              
sexually assaulted.                                                                                                             
                                                                                                                                
MR. SKIDMORE  answered that mens  rea would apply. He  referred to                                                              
page  3,   lines  4-6,  to  paragraph   (5)  of  SSSB   12,  which                                                              
specifically  uses "knowingly"  and not "intent,"  which  are very                                                              
different.  A person knows  whether the  conduct being  engaged in                                                              
could  cause  someone   to  become  unconscious,   which  is  very                                                              
different  than  to  say  the perpetrator  intended  to  kill  the                                                              
victim.                                                                                                                         
                                                                                                                                
2:32:00 PM                                                                                                                    
CHAIR   HUGHES   asked   for   further    clarification   on   the                                                              
classification of  the crime for a perpetrator  who causes someone                                                              
to become unconscious.                                                                                                          
                                                                                                                                
MR.  SKIDMORE answered  that  assault  in the  first  degree is  a                                                              
class A felony.                                                                                                                 
                                                                                                                                
2:32:22 PM                                                                                                                    
CHAIR HUGHES referred  to page [4], lines 9-12, to  the statute of                                                              
limitations.  She asked  him to  identify the  crimes that  have a                                                              
ten-year statute  of limitations. She noted that  all other crimes                                                              
have  a  five-year  statute  of  limitations.  She  further  asked                                                              
whether this is similar to other states' statutes of limitation.                                                                
                                                                                                                                
MR. SKIDMORE  said  he was unsure  of the  statute of  limitations                                                              
for  other  states. He  asked  for  further clarification  on  the                                                              
specific cite.                                                                                                                  
                                                                                                                                
CHAIR  HUGHES referred  to page  4, lines  9-12, to  Section 5  of                                                              
SSSB 12.                                                                                                                        
                                                                                                                                
MR. SKIDMORE  explained that  under AS  12.10.110, certain  crimes                                                              
do  not have  any  statute of  limitations,  including murder  and                                                              
certain sexual  assaults. He  said that  this provision  would add                                                              
AS 11.41.425(a)(1)  or (5)-(7),  assault in  the third  degree. He                                                              
related  that a  five-year statute  of limitation  would apply  to                                                              
most offenses  and a  10-year statute  of limitations  would apply                                                              
to other offenses.  He said that another set of  offenses does not                                                              
have any statute of limitation.                                                                                                 
                                                                                                                                
2:34:45 PM                                                                                                                    
CHAIR  HUGHES related  her  understanding  that the  more  heinous                                                              
crimes  against   a  person   would  not   have  any   statute  of                                                              
limitation,  that  pretty  serious  crimes would  have  a  10-year                                                              
statute of  limitation and less  serious ones would have  a 5-year                                                              
statute of limitation.                                                                                                          
                                                                                                                                
2:35:30 PM                                                                                                                    
SENATOR KIEHL  offered his belief that  on the whole this  bill is                                                              
a good  and important  piece of  legislation.  He referred  to the                                                              
harassment approach  in terms of semen. He expressed  concern that                                                              
some criminal situations  occur, such as someone  who is assaulted                                                              
and  comes  into   contact  with  semen.  These   crimes  are  not                                                              
considered sexual  in nature but disgusting criminal  behavior. He                                                              
agreed  correctional officers  should be  protected from  criminal                                                              
behavior. He asked  whether it was possible to separate  out a sex                                                              
crime, in  which the  offender should  be on  a sex registry,  and                                                              
the  type of  assaults that  should result  in criminal  sanctions                                                              
but are not sexual predation and are assaults.                                                                                  
                                                                                                                                
MR.  SKIDMORE  answered  that  he   comes  back  to  the  specific                                                              
substance of  semen that can only  be created by a sexual  act. He                                                              
has  reviewed and  grappled with  statutory language  to create  a                                                              
distinction between  these types of  conduct; however, he  has not                                                              
been able to  appropriately separates the two crimes  and still be                                                              
able to prosecute them.                                                                                                         
                                                                                                                                
2:38:37 PM                                                                                                                    
SENATOR  KIEHL said  that he might  have drafting  ideas to  avoid                                                              
putting  perpetrators who  commit assault  that is  not sexual  in                                                              
nature on the sex registry and still not have loopholes.                                                                        
                                                                                                                                
2:39:04 PM                                                                                                                    
SENATOR  MICCICHE said  he  thinks the  discretion  of the  courts                                                              
would  separate  the  crimes.  He offered  his  belief  that  some                                                              
criminal  assaults  in prisons  that  involve contact  with  semen                                                              
would be  sexual assaults,  but other activity  might be  a lesser                                                              
crime.  He suggested  that this  would protect  the discretion  of                                                              
the court since  it would not require being charged  at the higher                                                              
level.                                                                                                                          
                                                                                                                                
2:40:08 PM                                                                                                                    
CHAIR  HUGHES offered  her  belief that  the  definition of  mucus                                                              
would fit.                                                                                                                      
                                                                                                                                
[SB 12 was held in committee.]                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects
SJUD Agenda 2.13.19.pdf SJUD 2/13/2019 1:30:00 PM
SB 12 - Version M.PDF SJUD 2/13/2019 1:30:00 PM
SB 12 Sponsor Statement.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 12
SB 12 Sectional Summary Version M.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB12 Supporting Documents DOL Press Release 09.21.2018.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB12 Supporting Documents KTUU Article.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 12
SB12 Supporting Documents KTVA Article.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 12
SB12 Supporting Documents Washington Post Article.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 12
SB12-Fiscal Note-DHSS-PS.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB12-Fiscal Note-DOA-OPA.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB12-Fiscal Note-JUD-ACS.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB12-Fiscal Note-DOA-PDA.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB12-Fiscal Note-LAW-CRIM.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB35 - Version A.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB 35 Transmittal Letter.pdf SFIN 5/4/2019 9:00:00 AM
SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB 35 Highlights.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB 35 - Sex Offenses Sectional.pdf SFIN 5/4/2019 9:00:00 AM
SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB35-DOC-PopMgmt-IDO-FN.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB35-DOC-PopMgmt-ParoleBd-FN.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB35-DPS-CJISP-FN.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB35-HSS-PS-FN.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB35-Law-CrimDiv-FN.pdf SJUD 2/13/2019 1:30:00 PM
SJUD 2/15/2019 1:30:00 PM
SB 35
SB35-DOC-PopMgmt-IDO-FN.pdf SJUD 2/13/2019 1:30:00 PM
SB 35
SB35-DOC-PopMgmt-ParoleBd-FN.pdf SJUD 2/13/2019 1:30:00 PM
SB 35
SB35-DPS-CJISP-FN.pdf SJUD 2/13/2019 1:30:00 PM
SB 35
SB35-HSS-PS-FN.pdf SJUD 2/13/2019 1:30:00 PM
SB 35
SB35-Law-CrimDiv-FN.pdf SJUD 2/13/2019 1:30:00 PM
SB 35
SB 12 Version U.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB 12 Sponsor Statement v. U.pdf SJUD 2/13/2019 1:30:00 PM
SB 12
SB 12 Sectional Summary Version U.pdf SJUD 2/13/2019 1:30:00 PM
SB 12