Legislature(1993 - 1994)
02/24/1993 09:02 AM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATOR LEMAN brought SSSB 11, SB 22 and SB 23, which all relate to anti-stalking law, as the next order of business. BILL KELDER, staff to Senator Jay Kerttula who is sponsor of SSSB 11, said Senator Kerttula introduced SB 11 primarily for two reasons: first, because he believes anti-stalking legislation is necessary to protect the safety and lives of Alaskans; and secondly, because a number of citizens and interest groups contacted him asking that such a bill be introduced. SSSB 11 amends the state's existing laws on terroristic threatening to make stalking a criminal act. The bill does this by dividing terroristic threatening into two levels: terroristic threatening in the first degree, which would be a class C felony under this bill; and terroristic threatening in the second degree, which would be a class A misdemeanor. Besides the criminal conduct contained in the existing law, terroristic threatening in the first degree under this bill includes conduct that constitutes terroristic threatening in the second degree when that conduct violates a court order, or when the person has been convicted of terroristic threatening in the second degree within seven years of committing a new crime. In other words, repeat second degree offenders become first degree offenders under SB 11. Second degree terroristic threatening covers situations wherein a person recklessly places another in fear of death or physical injury to themselves or a family member by knowingly and repeatedly following or lying in wait for the person or family member or by similar conduct against the person or family member. Mr. Kelder related that Senator Kerttula filed a sponsor substitute on the bill to include language relating to a person who is currently in a dating, courtship or engagement relationship with the person being stalked or threatened. The change was made in consultation with the Department of Law, legislative legal counsel, the Department of Public Safety, and various domestic violence support groups. Number 160 PAM DUNDY, staff to Senator Fred Zharoff who is prime sponsor of SB 23, said the legislation basically covers the same areas as SSSB 11 with one exception. The seven year period that the victim or members of the victim's family or household are protected begins following the completion of the sentence. This includes the probationary period and the actual jail time that the person would serve. In SSSB 11 and SB 23, the seven years starts running from the time of conviction of the crime. SB 23 gives the victims more time in which they are legally protected from this type of harassment. Number 177 Senator Leman, as prime sponsor of SB 22, passed the gavel to Senator Miller so that he could make an opening statement on SB 22. SENATOR LEMAN said his bill is similar to SSSB 11 and SB 23. He said he introduced it because he, too, saw a need for anti-stalking legislation. Number 190 JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services, Legislative Affairs Agency, said the real difference between SB 23 from SSSB 11 and SB 22 is the seven-year period and committing the new crime of terroristic threatening in the first degree. Mr. Luckhaupt directed attention to page 2, line 24 of SSSB 11, and the addition to the definition of "family member." It expands the definition to include "a person who is in a dating, courtship, or engagement relationship with the person." The definition in the other two bills limits it to spouses and blood relatives of the victim or a person who lives in the same household as the victim. Number 230 SENATOR LEMAN said one of his concerns is that none of these would in any way take away from constitutionally protected activity of expression, for example, if someone wants to picket or otherwise demonstrate. JERRY LUCKHAUPT said that has been considered in drafts of the bills. He said if a person is engaging in a constitutionally protected behavior, then they basically, by definition, cannot be convicted of this offense. SENATOR LEMAN, referring to Section 2, asked if it would be more appropriate to use the term "serious physical injury" instead of just "physical injury," which could mean any physical injury. JERRY LUCKHAUPT responded that "physical injury" and "serious physical injury" are defined in statute, and if the committee wants to go with "serious physical injury" then it will exclude some conduct. "Physical injury" means any physical injury, any pain, so that when a person is placed of fear of any physical pain, someone could be prosecuted under this bill if they meet the other elements of the offense. "Serious physical injury" ties it into a death or serious impairment of a limb. Number 300 SENATOR DUNCAN asked if it was just a judgment call on the part of the committee as to which bill it will adopt. JERRY LUCKHAUPT agreed that it was. He added that states are passing stalking laws every day. Some have used an aggravator like this to differentiate between the basic stalking and the first degree, which would be the felony offense. Some have placed a number of years as a condition to when an offender repeats the conduct, and others have placed no condition at all. Number 325 SENATOR LEMAN asked for a review of the penalties for a class C felony and a class A misdemeanor. JERRY LUCKHAUPT said a class A misdemeanor provides a term of imprisonment of up to one year. A class C felony currently carries a definite term of imprisonment of not more than five years, and there is no presumptive term for a first offense in these conditions. Presumptive term for a second offense would be two years. Number 345 SENATOR LEMAN stated the committee would take public testimony over the teleconference network. MIKE NIELSEN, Captain, Fairbanks Police Department, testifying from Fairbanks, stated their department is very supportive of this effort by the legislature, and that it is a very necessary tool for law enforcement. There are cases they have had in Fairbanks and throughout the state where it would have been an effective tool and may have prevented a homicide. Number 380 HOWARD BURGER, an Alaska State Trooper testifying from Anchorage, stated that he was present to respond to questions from the committee. He stated the Department of Public Safety supports the legislation and that they had suggested the dating/courtship language that has been included in SSSB 11, although the word "currently" was not included. Number 395 DOROTHY WEEKS, testifying from Kodiak and an employee at the Kodiak Women's Resource & Crisis Center, stated their support for the legislation. She questioned why Public Safety would want the word "currently" included, because in stalking cases, a lot of times it is not current - it can be two or three years and a person is still following and threatening an individual. HOWARD BURGER responded that the reason they added the word "currently" is because they took it from the current domestic violence statutes. He said they inserted the word "currently" because the relationship as an ongoing thing would be strongest from a current dating, engagement or courtship. Number 420 GREG WILLIAMS, a reporter with KCHU in Valdez, asked how the three bills will actually differ from current terroristic threatening law. MARGO KNUTH, Criminal Division, Department of Law, responded that the purpose of the stalking law and of changing the terroristic threatening statute is to reach conduct that is not reached by existing law, namely, it is those who recklessly place another in fear of death of physical injury by lying in wait or engaging in similar conduct. Number 465 LESLIE BOGDA, Director of Valley Women's Resource Center in Palmer, said she was very anxious to see the stalking legislation pass. In the past they have had many victims come into their shelter and tell them about stalking that has occurred in their lives. She said anything that will help these women that are being stalked will be very positive. Number 487 MARGO KNUTH noted that all three of the proposed bills authorize warrantless arrest, which she thinks is entirely appropriate for stalking, but they do it in a way that she thinks can be improved upon. She referred to Section 3 in the bills where stalking is included in the second provision, and she suggested it be deleted from there and instead added to Section 1 because they would like to make a warrantless arrest of a stalker regardless of the relationship between the stalker and the victim. She said it would be more effective to amend AS 12.25.030(b)(1) to simply say "AS 11.56.740 or 11.56.812; or." SENATOR LEMAN requested that Ms. Knuth work with staff on her suggested change, and then it will be brought back before the committee. SENATOR TAYLOR asked if Ms. Knuth could also provide for additional standards so as it avoid misuse or abuse of this law. Number 573 SENATOR MILLER feared that this law could be used in what he feels is a constitutionally protected right such as picketing. MARGO KNUTH responded that no criminal law could affect constitutional behavior. To the extent that it is protected behavior, it's not covered by this statute, she said. TAPE 93-13, SIDE B Number 039 SENATOR ELLIS, speaking to demonstrations and picketing, said people do wait for women to show up to have abortions at clinics and they make what he would call terroristic threats on their lives. He said the words in the stalking bill lead him to believe that that kind of behavior that happens every day in this country would be criminalized if this were to become law. MARGO KNUTH responded that if a threat is made in a way that causes fear of physical injury or death, she is not aware that any constitution protects that behavior. Number 090 MARSHA MCKENZIE, Council on Domestic Violence & Sexual Assault, stated the Council's support for anti-stalking legislation. She noted that each year an estimated six million women are beaten by the men they live with; a third of the women who are murdered each year are killed by husbands or boyfriends; and national statistics show that about 30 percent of all female homicide victims were stalked prior to their murders. She said the legislation will cover the gaps that restraining orders cannot handle, and it will give more leverage against people who ignore restraining orders. Ms. McKenzie related that Council on Domestic Violence would like to suggest that there be included an additional aggravating factor which would make the crime a felony if the offender stalks the victim and is in possession of a deadly weapon. A similar change was added to restraining order provisions because of the combination where there is a restraining order and there is a weapon. Also, the Council would like to see the provision section broadened to include convictions of any violent crime against a person because an offender may have repeated convictions for assault or sexual. Finally, the Council's preference would be to see a separate crime of stalking rather than terroristic threatening, because one of the problems they see with including it under existing statute is that from a computerized criminal history, it is difficult to tell what the nature of the previous behavior would be. Number 150 CINDY SMITH, Director, Alaska Network on Domestic Violence and Sexual Assault, said the Network sees this kind of legislation as a way of being able to actually reduce incidents of violence and lethality of violence. Ms. Smith said the Network agrees with the suggested changes made by the Council on Domestic Violence. Ms. Smith advised the committee that the Network would be strongly concerned about changing the "physical injury" standard to "serious physical injury." She said the standard is really very high for "serious physical injury" and she would like to hear more from the Department of Law on this. Number 187 SENATOR LEMAN requested that suggested changes be put in writing and submitted to the committee for possible inclusion in a committee substitute. Number 190 SENATOR LEMAN asked Mr. Luckhaupt if he had any comments on having a stalking category versus terroristic threatening. JERRY LUCKHAUPT answered that he had not drafted the legislation and the drafting attorney made the decision to place it in terroristic threatening. However, he said he does not believe the crime should be placed in terroristic threatening, and that it should be placed in AS 11.41. He suggested amending the terroristic threatening statute by taking out the intent to place a person in fear of death language and placing it with the assault offenses. Number 290 SENATOR TAYLOR said he has had a significant amount of experience involving domestic violence orders and he has seen a lot of abuses with it. He said he supports this concept, but he wants to make certain that this is not opening the door for significant abuses. Number 312 HOWARD BURGER asked that the committee consider expanding the definition of "family member" to include language which includes the in-law relationship. SENATOR LEMAN responded that the committee would take his suggestion under consideration. Number 341 SENATOR LEMAN stated SSSB 11, SB 22 and SB 23 would be held in committee, and he requested that any suggested changes be given to staff.
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