Legislature(2005 - 2006)BELTZ 211

03/15/2005 03:30 PM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Bills Previously Heard/Scheduled
= SB 54 PROTECTIVE ORDERS FOR SEXUAL ASSAULT
Moved CSSB 54(STA) Out of Committee
= SB 88 POLICY ON GENERAL FUND REVENUE SHORTFALL
Moved SB 88 Out of Committee
= SB 20 OFFENSES AGAINST UNBORN CHILDREN
Moved CSSB 20(STA) Out of Committee
            SB  20-OFFENSES AGAINST UNBORN CHILDREN                                                                         
                                                                                                                                
4:08:03 PM                                                                                                                    
                                                                                                                                
CHAIR GENE THERRIAULT announced SB  20 to be up for consideration                                                               
and noted  a proposed Senate  State Affairs  committee substitute                                                               
(CS).                                                                                                                           
                                                                                                                                
SENATOR FRED DYSON  explained that the CS simplifies  the bill in                                                               
that it includes  just two classifications of  assault against an                                                               
unborn child  rather than  four, which  makes it  consistent with                                                               
other   assault  statutes   and   doesn't   create  new   assault                                                               
categories.                                                                                                                     
                                                                                                                                
It makes it clear that  criminal intent to assault is transferred                                                               
to a second  victim even if you are unaware  that a second victim                                                               
is  present.  In  addition  it  addresses  the  inconsistency  of                                                               
exempting a mother who harms her unborn child.                                                                                  
                                                                                                                                
4:12:20 PM                                                                                                                    
                                                                                                                                
WES KELLER,  staff to  Senator Dyson, said  he was  available for                                                               
questions.                                                                                                                      
                                                                                                                                
Chair THERRIAULT asked for a motion to adopt the proposed CS.                                                                   
                                                                                                                                
SENATOR THOMAS WAGONER motioned to adopt  \X version CS for SB 20                                                               
as  the working  document. There  being no  objection, it  was so                                                               
ordered.                                                                                                                        
                                                                                                                                
CHAIR  THERRIAULT  said  although  he  understands  removing  the                                                               
sections  related to  a  woman's  self-inflicted destruction,  it                                                               
seems to  be an entirely  different policy debate.  He questioned                                                               
whether that would include drinking and taking drugs.                                                                           
                                                                                                                                
MR. KELLER said they removed  the language because it potentially                                                               
exempted the woman from criminal  activity that harmed the unborn                                                               
child. However, if  there is a way to specifically  spell out the                                                               
concerns  regarding fetal  alcohol  syndrome  (FAS) and/or  fetal                                                               
alcohol effect (FAE)  he was sure that the  sponsor would welcome                                                               
any suggestions.                                                                                                                
                                                                                                                                
CHAIR THERRIAULT  said he understands  that excluding  the mother                                                               
might  be illogical,  but of  greater  concern is  that the  bill                                                               
lacks clarity for how to respond to those issues.                                                                               
                                                                                                                                
SENATOR DYSON  replied he intends  to work  on that issue  in the                                                               
Judiciary  Committee   in  particular.  He  suggested   that  Ms.                                                               
Carpeneti might help the committee  determine what level of self-                                                               
inflicted action might  trigger a charge of assault  on an unborn                                                               
child.                                                                                                                          
                                                                                                                                
CHAIR  THERRIAULT restated  the  question for  Ms. Carpeneti  and                                                               
informed members  that the section  under discussion was  on page                                                               
3.                                                                                                                              
                                                                                                                                
4:16:55 PM                                                                                                                    
                                                                                                                                
ANNIE  CARPENETI, Criminal  Division,  Department  of Law  (DOL),                                                               
said she  wasn't sure you  could prove beyond a  reasonable doubt                                                               
that drinking  too much during  pregnancy would be a  crime under                                                               
assault  in  the  second  degree.  You'd  have  to  look  at  the                                                               
definition of serious physical injury.                                                                                          
                                                                                                                                
CHAIR THERRIAULT read from AS 11.81.900:                                                                                        
                                                                                                                                
          (56) "serious physical injury" means                                                                                  
         (A) physical injury caused by an act performed                                                                         
     under circumstances that create a substantial risk of                                                                      
     death; or                                                                                                                  
          (B) physical injury that causes serious and                                                                           
     protracted  disfigurement,   protracted  impairment  of                                                                    
     health, protracted  loss or impairment of  the function                                                                    
     of  a   body  member  or  organ,   or  that  unlawfully                                                                    
     terminates a pregnancy;                                                                                                    
                                                                                                                                
                                                                                                                                
He suggested that under (B) FAS/FAE might well qualify.                                                                         
                                                                                                                                
MS. CARPENETI replied  it's a possible application  if the person                                                               
knew the risks of drinking and consciously disregarded them.                                                                    
                                                                                                                                
CHAIR THERRIAULT said warnings not  to drink during pregnancy are                                                               
posted in  all drinking establishments  so notice has  been given                                                               
to the general  public, but whether the person  took notice could                                                               
be a question.                                                                                                                  
                                                                                                                                
SENATOR KIM  ELTON referenced the language  at the top of  page 4                                                               
that  gives  another meaning  to  "serious  physical injury"  and                                                               
"includes the birth of an  unborn child before 37 weeks gestation                                                               
if the child weighs 2,500 grams or less at the time of birth."                                                                  
                                                                                                                                
If that provision is added  to serious physical assault, you open                                                               
all  sorts  of  questions  about  whether  or  not  the  mother's                                                               
behavior  resulted in  serious physical  injury if  that includes                                                               
birth weight of less than 5.5 pounds.                                                                                           
                                                                                                                                
MS. CARPENETI  said that definition  is quite specific  and you'd                                                               
probably  want   to  get  supporting  medical   evidence  if  the                                                               
provision is included in the bill.                                                                                              
                                                                                                                                
CHAIR  THERRIAULT remarked  he views  the language  in the  CS as                                                               
additive rather than limiting.                                                                                                  
                                                                                                                                
SENATOR ELTON  said if  you have  2,500 grams  as an  early birth                                                               
standard,  and if  a pregnant  woman is  confined to  bed on  the                                                               
advice of  a medical doctor, and  if the child is  born early and                                                               
weighs  less than  2,500 grams,  somebody  would have  to make  a                                                               
legal determination on whether the  mother assaulted the child if                                                               
she violated the doctor's bed rest order.                                                                                       
                                                                                                                                
MS. CARPENETI said that could  be a possibility. You'd still have                                                               
to prove the  culpable mental state and that would  depend on the                                                               
facts regarding how badly she disregarded the doctor's orders.                                                                  
                                                                                                                                
CHAIR  THERRIAULT  said the  language  exempting  the mother  was                                                               
removed  because  of  a  question  Senator  Elton  posed  and  to                                                               
additionally remove  this language brings  on a number  of policy                                                               
calls that he wasn't sure the  sponsor was prepared to take on at                                                               
this time.                                                                                                                      
                                                                                                                                
SENATOR ELTON replied he simply  asked a series of questions that                                                               
showed   anomalies   in   the  bill   that   would   have   legal                                                               
ramifications. He  was bothered  by the notion  that an  action a                                                               
mother  might  take pre-birth  would  be  exempted from  criminal                                                               
statute yet the  mother wouldn't be exempted  post birth. Clearly                                                               
the suggested fix  brings up other legal issues  and raises other                                                               
questions.                                                                                                                      
                                                                                                                                
4:25:16 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked Ms. Carpeneti  if she had anything else to                                                               
add.                                                                                                                            
                                                                                                                                
MS. CARPENETI  said no,  but it does  require further  study. She                                                               
asked the sponsor  to think about the fact that  some defenses to                                                               
murder are included in the bill,  but she wasn't sure why several                                                               
others  weren't adopted  in the  bill. She  told the  sponsor the                                                               
department would  be happy to  work with him and  advised members                                                               
that the administration supports the idea of the bill.                                                                          
                                                                                                                                
4:26:59 PM                                                                                                                    
                                                                                                                                
MR. KELLER stated for the record that  if you were to look at the                                                               
definition in law of "knowing  or reckless" it would be difficult                                                               
to  get a  conviction for  second  degree assault  if a  pregnant                                                               
woman violated a medical order for bed rest.                                                                                    
                                                                                                                                
SENATOR ELTON referenced language on  page 3, line 21 and pointed                                                               
out that  the language  talks about  "recklessly" but  it doesn't                                                               
connect it to "knowingly".                                                                                                      
                                                                                                                                
4:28:27 PM                                                                                                                    
                                                                                                                                
MR. KELLER read the following from AS 11.81.900 into the record:                                                                
                                                                                                                                
     (3)  a  person  acts  "recklessly" with  respect  to  a                                                                    
     result or  to a  circumstance described by  a provision                                                                    
     of law defining an offense  when the person is aware of                                                                    
     and   consciously   disregards    a   substantial   and                                                                    
     unjustifiable risk  that the result will  occur or that                                                                    
     the circumstance  exists; the  risk must  be of  such a                                                                    
     nature and  degree that disregard  of it  constitutes a                                                                    
     gross  deviation from  the standard  of conduct  that a                                                                    
     reasonable  person would  observe in  the situation;  a                                                                    
     person who  is unaware  of a risk  of which  the person                                                                    
     would  have  been  aware  had   that  person  not  been                                                                    
     intoxicated acts recklessly with respect to that risk;                                                                     
                                                                                                                                
SENATOR ELTON responded  if a person were to  follow the precepts                                                               
of  her  religion rather  than  the  legal responsibilities  that                                                               
would accrue under the provisions of  SB 20, it would be reckless                                                               
behavior.                                                                                                                       
                                                                                                                                
4:30:16 PM                                                                                                                    
                                                                                                                                
MR.  KELLER countered  it  would be  an issue  for  the court  to                                                               
determine.                                                                                                                      
                                                                                                                                
CHAIR THERRIAULT opened teleconference testimony.                                                                               
                                                                                                                                
4:31:26 PM                                                                                                                    
                                                                                                                                
REBECCA  WHITMAN  said she  works  for  the national  non-profit,                                                               
Family  Violence Prevention  Fund. She  stated concern  about the                                                               
impact of SB 20 on victims of domestic violence.                                                                                
                                                                                                                                
CHAIR  THERRIAULT  asked  how  much   of  her  concern  would  be                                                               
mitigated by  the fact that a  woman cannot be forced  to testify                                                               
against her husband.                                                                                                            
                                                                                                                                
MS. WHITMAN  replied a greater concern  is that a woman  might be                                                               
afraid  to  seek  medical  care  because  of  something  that  is                                                               
happening in the relationship.                                                                                                  
                                                                                                                                
4:34:07 PM                                                                                                                    
                                                                                                                                
MOLLY  MCCAMMON,  board  chair,  Planned  Parenthood  of  Alaska,                                                               
reported  that  Planned Parenthood  agrees  that  the loss  of  a                                                               
wanted pregnancy  as a result of  an act of violence  is a tragic                                                               
event and  that the  perpetrators of such  crimes need  to answer                                                               
for the woman's loss. That  being said, Planned Parenthood cannot                                                               
support  the  bill as  written.  Specifically,  the bill  doesn't                                                               
address  the  criminal penalties  for  violence  against women  -                                                               
whether  they are  pregnant  or  not -  yet  it  does threaten  a                                                               
woman's  reproductive choice.  She  suggested  a better  approach                                                               
would  be to  strengthen Alaska's  laws against  harming pregnant                                                               
women  rather  than laying  the  foundation  for giving  separate                                                               
legal rights to embryos and fetuses.                                                                                            
                                                                                                                                
4:37:29 PM                                                                                                                    
                                                                                                                                
CASSANDRA  JOHNSON testified  that between  1990-2002 she  worked                                                               
with victims  of gender violence  and that she could  not support                                                               
SB 20 or the changes made in the CS.                                                                                            
                                                                                                                                
She reported  that since the  late 1970s  Alaska has been  in the                                                               
top five states  for reported sexual assaults and  in 2002 Alaska                                                               
led the  nation in women  killed by a significant  other. Neither                                                               
is a  distinction that anyone  wants to continue.  She emphasized                                                               
that  injury to  a fetus  is first  and foremost  an injury  to a                                                               
pregnant woman and SB 20 doesn't deal with that issue.                                                                          
                                                                                                                                
Protecting  pregnant women  from  violence is  a serious  problem                                                               
that  deserves  to  be  elevated   above  political  agendas  and                                                               
partisan politics, she concluded.                                                                                               
                                                                                                                                
4:40:12 PM                                                                                                                    
                                                                                                                                
MICHAEL MACLEOD-BALL, executive  director, Alaska Civil Liberties                                                               
Union (AkCLU),  testified in opposition  to SB 20. He  noted that                                                               
he just received a copy of the  CS and wanted the committee to be                                                               
aware that  his comments are  directed at the original  draft. He                                                               
looked  forward   to  further   discussion  after  he'd   had  an                                                               
opportunity to review the proposed changes.                                                                                     
                                                                                                                                
He reported  that the  AkCLU supports  efforts to  punish violent                                                               
acts toward woman that may  harm or terminate a wanted pregnancy.                                                               
However,  SB 20  would diminish  the woman  who is  typically the                                                               
intended victim  of the violent  act in question.  Instead, AkCLU                                                               
supports  alternative  approaches  for  cases in  which  a  woman                                                               
suffers harm to herself and to her pregnancy.                                                                                   
                                                                                                                                
It's clear that  domestic violence is a large  problem that isn't                                                               
going away and  implicit in all the  domestic violence statistics                                                               
is the  fact that the batterers  intent is to harm  the woman and                                                               
not  the  zygote, embryo,  or  fetus.  There  is no  evidence  to                                                               
suggest  that  the  perpetrator typically  intends  to  harm  the                                                               
embryo.                                                                                                                         
                                                                                                                                
The solution to  this national tragedy is to  focus on prevention                                                               
because punishment  does nothing to solve  the problem. Punishing                                                               
the termination  of the pregnancy is  an empty gesture and  SB 20                                                               
does  nothing to  help  the  woman who  is  the intended  victim.                                                               
Rather,  the bill  focuses on  the embryo  that is  typically the                                                               
unintended consequence of a violent act against a woman.                                                                        
                                                                                                                                
The  AkCLU  also  opposes  SB  20  because  it  would  permit  an                                                               
individual to be convicted even if  he or she had no knowledge of                                                               
the  pregnancy. Furthermore  he  took issue  with the  definition                                                               
offered for "unborn  child" and warned that a  number of problems                                                               
were associated with the interpretation.                                                                                        
                                                                                                                                
Enacting  the  bill  would  have  unforeseen  fiscal  impacts  on                                                               
enforcement agencies because it creates  a new class of crime and                                                               
investigation of such crimes  would require sophisticated testing                                                               
procedures not currently used for similar crimes.                                                                               
                                                                                                                                
In conclusion  he asked the  committee to consider the  impact of                                                               
diverting  resources  from  investigations  of  violence  against                                                               
women  and   offered  his  help  in   drafting  legislation  that                                                               
contemplates enhanced  punishment for  crimes against  women that                                                               
also harms  a pregnancy. Keep  the focus  on the woman,  the real                                                               
victim, he urged.                                                                                                               
                                                                                                                                
CHAIR THERRIAULT  commented that  the ongoing  theme has  been to                                                               
focus  on  assaults against  women  and  that  type of  crime  is                                                               
already addressed  in current statutes whether  they are pregnant                                                               
or not. What  the sponsor is suggesting is additive  so he didn't                                                               
understand the  conclusion that the other  crimes are diminished.                                                               
The  perpetrator would  still be  guilty  of the  assault on  the                                                               
woman whether she was pregnant or not.                                                                                          
                                                                                                                                
Furthermore   he   suggested   the   testimony   jumped   between                                                               
strengthening  the   laws  on  assault  against   women  and  the                                                               
suggestion to focus on prevention.                                                                                              
                                                                                                                                
MR.  MACLEOD-BALL replied  it  might have  seemed  as though  his                                                               
testimony jumped around because  he was attempting to accommodate                                                               
his testimony to the earlier discussion.  The point is that SB 20                                                               
would  divert  attention from  the  primary  problem of  domestic                                                               
violence against women. Allocating  resources to a separate event                                                               
would take  resources away from  the primary event, which  is the                                                               
attack against  the woman. There  is nothing to suggest  that the                                                               
attack is against  the embryo because it's an  attack against the                                                               
woman.                                                                                                                          
                                                                                                                                
4:47:30 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT  further challenged  the premise that  the fetus                                                               
is a woman's property right.                                                                                                    
                                                                                                                                
MR. MACLEOD-BALL clarified that he  did not use the word property                                                               
and  he certainly  wouldn't characterize  an embryo  as property.                                                               
Rather, an embryo  is a part of a woman's  body. He thought there                                                               
were statutes in  Alaska or elsewhere where the  severity of harm                                                               
to  the individual  could  be treated  as  an enhancement,  which                                                               
would result in stiffer penalties  to the perpetrator. Certainly,                                                               
the  AkCLU  would favor  legislation  to  enhance punishment  for                                                               
violent acts against  women that also happen to  harm the woman's                                                               
pregnancy.                                                                                                                      
                                                                                                                                
4:49:35 PM                                                                                                                    
                                                                                                                                
CARRIE ROBINSON,  attorney, Alaska  Network on  Domestic Violence                                                               
and  Sexual Assault  (ANDVSA), reported  that  the network  fully                                                               
supports efforts to prevent violent  acts toward women. It agrees                                                               
with  the  sponsor  statement  that  the  law  needs  to  protect                                                               
victims. Certainly  acts of violence  against pregnant  women are                                                               
appalling  and  response  to  such  acts  should  be  strong  and                                                               
decisive. That  being said, SB  20 isn't the proper  response and                                                               
won't protect victims of domestic violence.                                                                                     
                                                                                                                                
The Alaska  Pregnancy Risk Assessment  Study shows that  about 13                                                               
percent  of Alaska  women are  physically abused  at the  time of                                                               
pregnancy and  the incidence of  violence against teens  that are                                                               
either  pregnant or  new  mothers  climbs to  25  percent. SB  20                                                               
ignores  the impact  of  violent crimes  against  women and  puts                                                               
victims of domestic violence at further risk.                                                                                   
                                                                                                                                
She  said  the  network  is   concerned  that  victims  would  be                                                               
reluctant to  seek medical care or  to report abuse if  they know                                                               
that a  partner could  be charged with  homicide under  the bill.                                                               
Even  more alarming  is  that  with the  recent  change, a  woman                                                               
herself  could  be charged  with  a  crime, which  increases  the                                                               
likelihood  that a  woman  wouldn't seek  medical  care when  she                                                               
needs it most.                                                                                                                  
                                                                                                                                
The American  College of Obstetricians and  Gynecologists opposed                                                               
similar legislation  at the federal  level and  domestic violence                                                               
organizations at  the national  level have  opposed this  type of                                                               
legislation.  The network  suggests  that Alaska  could lead  the                                                               
nation in  making it clear  that a  batterer cannot hurt  a fetus                                                               
without hurting a woman. Keep the  focus on women and make crimes                                                               
of violence against women during pregnancy an aggravator.                                                                       
                                                                                                                                
4:54:54 PM                                                                                                                    
                                                                                                                                
CAREN ROBINSON,  Alaska Women's Lobby (AWL),  stated appreciation                                                               
for  the public  policy discussions  that SB  20 brings  forward.                                                               
That  being said,  AWL could  not support  the bill  as currently                                                               
written;  shifting the  focus  from  the woman  to  the fetus  is                                                               
wrong, she emphasized.                                                                                                          
                                                                                                                                
If SB 20  moves forward, focus on the danger  to a pregnant woman                                                               
because keeping her safe will  keep the fetus safe. She suggested                                                               
that the North  Carolina law would be a good  pattern for Alaska.                                                               
That law states  that a person that knowingly causes  injury to a                                                               
pregnant woman during  the commission of a felony  will be guilty                                                               
of one  class higher than the  felony committed if the  injury to                                                               
the  woman  results  in  the   miscarriage  of  the  fetus  or  a                                                               
stillborn.                                                                                                                      
                                                                                                                                
There was no further public testimony.                                                                                          
                                                                                                                                
CHAIR  THERRIAULT noted  that the  \X version  CS was  before the                                                               
committee and that Senator Elton  had an amendment for members to                                                               
consider.                                                                                                                       
                                                                                                                                
SENATOR ELTON motioned to adopt amendment 1.                                                                                    
                                                                                                                                
CHAIR  THERRIAULT  labeled  the  Crawford  3/15/05  amendment  as                                                               
Amendment 1 and objected for discussion purposes.                                                                               
                                                                                                                                
SENATOR  ELTON introduced  his comments  by stating  that he  too                                                               
applauds the  sponsor for his  history of  championing vulnerable                                                               
people  and  that  he  shares that  objective.  However,  he  was                                                               
struggling  with some  of the  legal issues  associated with  the                                                               
approach the  sponsor has taken.  For instance,  it's troublesome                                                               
that a  driver in  a carpool  could be  charged with  an enhanced                                                               
crime if an accident occurred and  a pregnant woman and her fetus                                                               
were harmed. Furthermore, he questioned  what might happen in the                                                               
event of repetitive assaults or if  a child were born with FAS or                                                               
FAE.                                                                                                                            
                                                                                                                                
Pointing  out that  experts  in  the field  tend  to support  the                                                               
notion that an  aggravator approach rather than  the one proposed                                                               
in  SB   20,  he  explained   that  Amendment  \F.1   includes  a                                                               
comprehensive list  of the aggravators  the courts  may consider.                                                               
Aggravators   include:   cruelty;    multiple   party   offenses;                                                               
vulnerable victims;  prior felonies; paid for  offenses; offenses                                                               
against  law  enforcement  officers; court  employees;  emergency                                                               
responders; crimes  in which the perpetrator  obtains substantial                                                               
benefit;  domestic violence;  extensive criminal  history; crimes                                                               
committed because  of sex, color,  creed, ethnicity;  crimes that                                                               
involve distribution  of drugs; and crimes  against witnesses. He                                                               
said that comprehensive  list leads to the meat  of the amendment                                                               
found on page 4.                                                                                                                
                                                                                                                                
He told  members that after  struggling with the issues,  he came                                                               
to  the conclusion  that  the only  way  to avoid  a  lot of  the                                                               
anomalies  that are  raised  in SB  20 is  to  go the  aggravator                                                               
route.                                                                                                                          
                                                                                                                                
Ms. Robinson suggested that North  Carolina has the best approach                                                               
and using that standard, the  proposed amendment falls short even                                                               
though  it does  provide that  the aggravator  is applied  if the                                                               
offense was  a felony and  if the  defendant knew or  should have                                                               
known  that the  victim  was pregnant.  Nonetheless, because  the                                                               
proposed amendment might  not be the best  approach, he requested                                                               
that the  committee wait and  review the North  Carolina language                                                               
before taking any action.                                                                                                       
                                                                                                                                
CHAIR THERRIAULT  said he  would maintain  his objection  in part                                                               
because he  hopes the  governor will  sign a  bill into  law that                                                               
deals  with  the  Blakely  decision.   Because  of  court  action                                                               
aggravators have become  harder and more expensive  to apply both                                                               
in Alaska and across the nation  so he wasn't sure that using the                                                               
aggravator  approach was  the one  that he  or the  sponsor would                                                               
prefer.                                                                                                                         
                                                                                                                                
5:05:38 PM                                                                                                                    
                                                                                                                                
SENATOR  DYSON   stated  that  he   was  disappointed   with  the                                                               
repetitive  testimony  and  he   could't  understand  why  giving                                                               
additional protection  to a wanted  unborn child has any  sort of                                                               
negative affect  on mitigating domestic violence.  He argued that                                                               
just  because you  can't see  what  would be  a protected  entity                                                               
doesn't change how you would proceed under law.                                                                                 
                                                                                                                                
Pointing out that he has taken  care not to call the unborn child                                                               
a person, he argued that under  law the Legislature has the right                                                               
to  extend  a  protective  category  to any  entity  in  need  of                                                               
protection. In fact,  it's done to endangered  species and bodies                                                               
of water  all the  time, so protecting  unborn children  that are                                                               
wanted doesn't denigrate any other group of protected entities.                                                                 
                                                                                                                                
5:10:37 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked if there was further debate.                                                                             
                                                                                                                                
5:10:48 PM                                                                                                                    
                                                                                                                                
SENATOR  ELTON   said  the  question  regarding   aggravators  is                                                               
interesting and he would like to  hear from the Department of Law                                                               
about whether Blakely  and the proposed solution gets  in the way                                                               
of aggravators. He  used the example of an aggravator  in law for                                                               
killing a law enforcement officer.                                                                                              
                                                                                                                                
5:11:38 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI said no, after  Blakely is enacted there will still                                                               
be aggravators.  It's just that  the procedure to prove  them has                                                               
changed  somewhat and  they won't  be as  easy to  use as  in the                                                               
past. They will  have to be charged in the  charging document and                                                               
the jury  must decide  whether prosecutors  proved them  beyond a                                                               
reasonable  doubt. The  standard  of proof  was  just lower,  but                                                               
they'll still be used when appropriate.                                                                                         
                                                                                                                                
5:12:23 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT called for a roll  call vote on Amendment 1. The                                                               
amendment failed 2 to 3 with  Senators Davis and Elton voting yea                                                               
and Senators Huggins, Wagoner and Chair Therriault voting nay.                                                                  
                                                                                                                                
5:13:09 PM                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT mentioned  that he  understood why  the sponsor                                                               
removed the  exemption for the  mother, but doing so  opens other                                                               
issues  that  are  difficult  to respond  to.  He  suggested  the                                                               
sponsor might want  to revisit the decision and  consider some of                                                               
the debate that occurred.                                                                                                       
                                                                                                                                
SENATOR DYSON said he was  impressed with the logic and arguments                                                               
Senator  Elton brought  up previously  and he  would work  on the                                                               
bill further.                                                                                                                   
                                                                                                                                
CHAIR  THERRIAULT  noted  the  bill  has  a  Judiciary  Committee                                                               
referral  and asked  if the  sponsor  would prefer  to present  a                                                               
committee substitute at that time.  He said he expects a spirited                                                               
debate from both Senator Guess and Senator French.                                                                              
                                                                                                                                
SENATOR  DYSON agreed  that might  be a  good venue  in which  to                                                               
present  the next  version and  he continues  to look  forward to                                                               
hearing from all sides.                                                                                                         
                                                                                                                                
5:15:16 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT  noted there were  two fiscal notes and  one was                                                               
indeterminate,  which would  likely trigger  a Finance  Committee                                                               
referral. He asked the will of the committee.                                                                                   
                                                                                                                                
5:15:50 PM                                                                                                                    
                                                                                                                                
SENATOR WAGONER said  he was willing to move the  bill as long as                                                               
it had a thorough vetting  in the Judiciary Committee. That being                                                               
said,  he motioned  to report  SB  20, \X  version, and  attached                                                               
fiscal notes from committee with individual recommendations.                                                                    
                                                                                                                                
5:16:22 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON  said he would  object to  speak to the  motion and                                                               
then he would remove the objection. He stated:                                                                                  
                                                                                                                                
     It seems  to me that  what we're  doing if we  move the                                                                    
     bill on - I am the  person that created an awful lot of                                                                    
     work  on behalf  of the  sponsor and  his staff  when I                                                                    
     asked about  the anomalies about  why one  person could                                                                    
     be charged  and not  another person  and like  you have                                                                    
     mentioned,   it's  a   Sophie's   choice.  You've   got                                                                    
     difficult  questions  to answer  if  it's  one way  and                                                                    
     difficult questions to answer  if it's another way. And                                                                    
     so  I will  remove my  objection to  the motion,  but I                                                                    
     want  to note  that,  in  fact, I  think  that it's  an                                                                    
     appropriate  decision for  this  committee  to make  on                                                                    
     what the best approach is and  I sense that the bill is                                                                    
     going to  move despite my  wish to have us  answer that                                                                    
     question  and apply  the best  of our  logic to  it and                                                                    
     pass  it  on  to  another committee.  With  that,  I'll                                                                    
     remove my objection, Mr. Chair.                                                                                            
                                                                                                                                
CHAIR THERRIAULT asked  the sponsor if he  anticipates asking the                                                               
drafter to reinsert the exemption language.                                                                                     
                                                                                                                                
SENATOR DYSON replied he intends  to spend considerable time with                                                               
the drafter, Ms. Carpeneti, and  several others. He said he would                                                               
also  review  similar  action  taken  by  the  37  other  states.                                                               
Specifically  he would  look at  how they  handled the  anomalies                                                               
Senator Elton brought up                                                                                                        
                                                                                                                                
CHAIR THERRIAULT  advised that the State  Affairs Committee could                                                               
add the language back in a conceptual amendment.                                                                                
                                                                                                                                
SENATOR DYSON restated his intention.                                                                                           
                                                                                                                                
CHAIR  THERRIAULT announced  that the  objection was  removed and                                                               
CSSB 20(STA) and attached fiscal  notes would move from committee                                                               
with individual recommendations.                                                                                                

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