03/12/1993 09:05 AM Senate STA

  CHAIRMAN  LEMAN called  the  Senate State  Affairs Committee                 
  meeting   to  order  at  9:05   a.m.  and  announced  SB  11                 
  ANTI-STALKING LAW to be up for consideration.                                
                                                                               
  SENATOR MILLER moved to adopt the CS to SSSB 11.  There were                 
  no objections and it was so ordered.                                         
                                                                               
  MARGO KNUTH, Department of Law, said the CS targets the same                 
  conduct as SSSB 11 targeted.  It does it in the framework of                 
  the  elements  in existing  assault  statutes. It  creates a                 
  misdemeanor offense of  stalking in the second  degree which                 
  is  knowingly  engaging in  a  course of  conduct recklessly                 
  placing another in fear of death  or physical injury.  There                 
  are several ways  stalking can be  aggravated into a  felony                 
  offense. The  most significant is acts that are in violation                 
  of probation, release, or a temporary restraining order.                     
                                                                               
  The terms are defined specifically in this bill with Alaskan                 
  statutes in mind.                                                            
                                                                               
  The only way the  CS for SSSB 11 differs  significantly from                 
  HB 64,  MS.  KNUTH explained,  is it  explicitly creates  an                 
  affirmative defense for constitutionally  protected conduct.                 
  The purpose of the affirmative defense is to assure this law                 
  is  not  used to  try  to  chill peoples  exercise  of their                 
  constitutional rights,  like a public demonstration in front                 
  of an abortion clinic, for instance.                                         
                                                                               
  Number 100                                                                   
                                                                               
  An  issue raised by  the affirmative  defense is  who should                 
  decide  whether  the person's  conduct  was constitutionally                 
  protected or not  and juries  are not trained  to make  that                 
  determination, MS. KNUTH said.   She would prefer to  see it                 
  as a question of  law for the court to decide  since that is                 
  their area of expertise.  She suggested adding the language,                 
  "Whether  an  act  of the  defendant  is  a constitutionally                 
                                                                               
                                                                               
  protected activity is a question of  law to be determined by                 
  the court before trial."                                                     
                                                                               
  Number 148                                                                   
                                                                               
  JERRY  LUCKHAUPT,  who drafted  the  bill, explained  that a                 
  provision excluding constitutionally protected  conduct does                 
  arise in most  stalking laws.   The terroristic  threatening                 
  law,  because  that was  a  basic  form of  assault  type of                 
  offense, was moved  into assault.   The CS  also removed  an                 
  existing  relationship requirement  between  the victim  and                 
  defendant  for  arrest  without  a  warrant  for  the  basic                 
  stalking offense, MR. LUCKHAUPT said.  It also specified  in                 
  Section 6 that the  court may put restrictions on  a release                 
  of the defendant.                                                            
                                                                               
  Number 218                                                                   
                                                                               
  In  Section 7  the court  cannot suspend  the  imposition of                 
  sentence of a person convicted of assault.                                   
                                                                               
  Number 251                                                                   
                                                                               
  SENATOR ELLIS asked  for a rationale  for the use of  arrest                 
  without  a  warrant  in  other  instances.    MR.  LUCKHAUPT                 
  explained that you can always arrest without a warrant for a                 
  felony offense  regardless of  whether is  was committed  in                 
  front of a  police officer or  not.  Traditionally, a  peace                 
  officer cannot arrest  without a  warrant for a  misdemeanor                 
  offense that was not  committed in his presence.   There are                 
  exceptions to that which usually involve some sort of danger                 
  to the public, like  drunk driving.  Stalking is  similar to                 
  the fourth degree threatened assault type behavior.                          
                                                                               
  Number 308                                                                   
                                                                               
  BILL KELDER, Staff for Senator Kerttula, agreed with most of                 
  the changes  in the CS  because it made  a better bill.   He                 
  added that he was confused about  what they were going to do                 
  with Ms. Knuth's  suggested language, although he  did agree                 
  with it.                                                                     
                                                                               
  Number 324                                                                   
                                                                               
  SENATOR  MILLER asked what  happens if the  jury decides the                 
  activity is  constitutionally protected.   MS. KNUTH replied                 
  that the most significant feature of what they are proposing                 
  is that  the jury  is  not going  to  be instructed  on  the                 
  constitutional defense.   If they are not  instructed on it,                 
  nothing would prompt them to make that consideration.  Under                 
  this bill, the judge would make that decision.                               
                                                                               
  SENATOR MILLER said he had no problem with this if the judge                 
  were neutral, but  if he  weren't neutral on  the issue,  he                 
                                                                               
                                                                               
  would have trouble.   MS. KNUTH said the judge  would either                 
  make the statement  to the jury that  it is constitutionally                 
  protected or he is silent on it.  The jury would not be told                 
  there is a defense of constitutional activity.                               
                                                                               
  SENATOR  MILLER  commented that  it  probably wouldn't  be a                 
  problem in this state where we have appointed judges.                        
                                                                               
  Number 399                                                                   
                                                                               
  SENATOR LEMAN asked if the judge determined the activity was                 
  constitutionally protected would it go to trial or would the                 
  case be dismissed?  MS. KNUTH said that would  depend on the                 
  circumstances.                                                               
                                                                               
  Number 415                                                                   
                                                                               
  BRIAN DAVIDSON, Bethel,  supported the  CS to SSSB  11.   He                 
  said  he works  in a shelter  for women  who are  victims of                 
  domestic violence and assault.  There is a common perception                 
  among  these women that  the law  is sometimes  powerless to                 
  help  them.   This  legislation  would  go far  to  give law                 
  enforcement additional powers to protect  the members of the                 
  community.                                                                   
                                                                               
  He  wanted the  committee  to keep  "stalker" as  opposed to                 
  "terroristic  threatening."   He supported arrest  without a                 
  warrant by a law enforcement officer and the provisions that                 
  would aggravate stalking into a felony offense.                              
                                                                               
  Number 437                                                                   
                                                                               
  SENATOR MILLER moved to pass CS  SSSB 11 from committee.  He                 
  then withdrew his motion.                                                    
                                                                               
  SENATOR DUNCAN moved to adopt the amendment suggested by the                 
  Department of Law.   SENATOR MILLER  objected saying he  was                 
  still uncomfortable   with  it.   SENATOR LEMAN  objected as                 
  well.                                                                        
                                                                               
  SENATOR DUNCAN withdrew his motion.                                          
                                                                               
  Number 452                                                                   
                                                                               
  SENATOR  MILLER moved to discharge CS SSSB 11 from Committee                 
  with individual  recommendations.  There  were no objections                 
  and it was so ordered.                                                       
  SENATOR LEMAN  brought SB  11 back before  the Committee  to                 
                                                                               
                                                                               
  receive testimony from Sergeant  James McCann in  Fairbanks.                 
  However, he had left after the discharge vote and so SENATOR                 
  LEMAN brought SB 1 back before the Committee.