Legislature(2001 - 2002)
01/23/2002 01:07 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 23, 2002
1:07 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 243
"An Act relating to sexual assault or abuse of a minor."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
PREVIOUS ACTION
BILL: HB 243
SHORT TITLE:VERIFY AGE REQD FOR DEFENSE IN SEX CRIMES
SPONSOR(S): REPRESENTATIVE(S)DYSON
Jrn-Date Jrn-Page Action
04/10/01 0930 (H) READ THE FIRST TIME -
REFERRALS
04/10/01 0930 (H) JUD
04/10/01 0930 (H) REFERRED TO JUDICIARY
04/25/01 (H) JUD AT 1:00 PM CAPITOL 120
04/25/01 (H) Heard & Held
04/25/01 (H) MINUTE(JUD)
01/23/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 243.
JULIA P. GRIMES, Lieutenant
Division of Alaska State Troopers
Department of Public Safety (DPS)
5700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: During discussion of HB 243 simply stated
that she was available to answer questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Presented the department's position on HB
243 and responded to questions.
ACTION NARRATIVE
TAPE 02-3, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:07 p.m. Representatives
Rokeberg, Ogan, Coghill, Meyer, Berkowitz, and Kookesh were
present at the call to order. Representative James arrived as
the meeting was in progress. [For minutes on the Department of
Law update regarding State v. Auliye (minor in possession), see
the 2:23 p.m. minutes for this date.]
HB 243 - VERIFY AGE REQD FOR DEFENSE IN SEX CRIMES
Number 0052
CHAIR ROKEBERG announced that the first item would be HOUSE BILL
NO. 243, "An Act relating to sexual assault or abuse of a
minor."
Number 0065
REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor,
mentioned that Alaska leads the nation in [reported cases] of
child sexual abuse. He added that although it might just be
"symptomatic of our culture," people having sex with children
has become a very significant problem, both for the victims and
for society. He went on to explain that some of the
perpetrators of child sexual abuse have used the defense that
the victim said that he/she was 16 years old; therefore, the
goal of HB 243 is to "tighten that up a bit and make it harder
to use that defense, and to state that the perpetrator must have
done something more than just take the victim's word ... that
[he/she was] above 18 and therefore ... not ... a child under
state definition." He pointed out that HB 243 would amend AS
11.41.445(b) to say that the adult having sex with child must do
something - or take some reasonable measures - to verify that in
fact the victim is not a child.
REPRESENTATIVE DYSON noted that in Steve v. State, the Alaska
Court of Appeals has said:
We do not believe that society's basic notions of
justice and fairness are violated when the law imposes
criminal liability on a defendant (1) who has sex with
an under-age child, (2) who claims that he or she made
a mistake concerning the victim's age, but (3) who can
not show that the mistake was a reasonable one. The
Alaska legislature has declared that people must not
have sexual relations with children younger than 16.
Human beings generally exhibit visible signs of their
age. While it may not be possible to determine a
person's exact age from looking at them and talking to
them, in most instances it is possible, using these
indicators, to identify 13-, 14-, and 15-year-olds as
still being in their teens. Accordingly, it is fair
to expect people to exercise caution when choosing a
youthful sexual partner. And, if the defendant claims
that a mistake was made, it is fair to expect the
defendant to prove the reasonableness of that mistake
- to prove that the mistake was not the result of
intoxication, lack of concern, or other unreasonable
behavior.
Number 0336
REPRESENTATIVE DYSON also noted that members have in their
packets a letter of support from the Alaska Association of
Chiefs of Police, and that the Department of Law "supported us
eloquently on this last year." He urged members to report HB
243 out of committee in order to send a message that having sex
with children is not acceptable in Alaska and that if a person
chooses a youthful sex partner, he/she needs to take reasonable
measures to ensure that neither the law nor, more important, a
child is being violated.
REPRESENTATIVE OGAN said he is supportive of the concept of HB
243. He asked whether it is fair to say that what is sought via
HB 243 is "to add an aggravator to ... a pedophile that would
prey on young women under the age of 16." He noted his concern
that HB 243 might place an additional burden on someone [who is
having sex with someone] in his/her own peer group. As example,
he mentioned that because there are 15-year olds going to school
with 18-year olds, there might be instances when an older
student becomes sexually involved with a younger student.
REPRESENTATIVE DYSON clarified that HB 243 is not an aggravator;
instead, it is meant to limit a defense that is currently being
used. He went on to describe an incident of "a gang rape that
happened out the Diamond area":
The boys were - as I remember - varied [in] age [from]
15 to 22 or 23, and I think there [were] 30 of them
involved [in raping] two young girls. Many of them
said, "Well, [we] thought it was consensual," and that
"somebody said that the girls said that they were of
age." ... One of the girls was so [physically]
immature that she wasn't wearing a bra, still had
braces, and [yet the perpetrators still used] the
defense of "we thought she was of age." Plus, more to
[Representative Ogan's] point, they were of her [peer
group]; they were kids that shared a schoolroom with
her - many of them. Now some of the leaders may have
been older, but the gang that lined up and cheered was
not. And I want to burn 'em. I want those guys to do
hard time for what they did to that little girl, and I
want to send the message that just because somebody
said, or there's a lineup, or it appears to be
consensual, we do not allow having sex with children.
Number 0698
REPRESENTATIVE DYSON said that he appreciates what the state has
done to put in the three-year age differential: if the victim
is 12 and the perpetrator is 15, "our law says ... you're OK."
[For the benefit of the reader, AS 11.41.440 indicates that the
above example constitutes sexual abuse of a minor in the fourth
degree and would result in a class A misdemeanor.] He also said
that although he appreciates Representative Ogan's concern, he
is not convinced that there is any justification for expanding
that three-year age differential in statute.
REPRESENTATIVE OGAN, with regard to the gang-rape example, said
"I want that [kind of] person who did that kind of act to
absolutely pay dearly." He offered that he merely wants to
ensure that people in the same peer group that are having true
consensual sex do not suddenly wind up on the sex offender list
simply because the relationship ends badly, which, he pointed
out, could be an unintended consequence of HB 243. He then
asked why, on lines 12-13, HB 243 deletes from current statute
the phrase ", unless the victim was under 13 years of age at the
time of the alleged offense".
CHAIR ROKEBERG noted that the prior minutes on HB 243 indicate
that the deletion of the aforementioned language is intended to
conform statute to case law developed from the [State v.
Fremgen] Alaska Court of Appeals decision.
REPRESENTATIVE BERKOWITZ, on the topic of the gang-rape
incident, asked Representative Dyson whether that case was
prosecuted and what the outcome was.
Number 0921
REPRESENTATIVE DYSON said that that case was prosecuted; he
added that the prosecutors in that case told him that had the
law regarding misprision against a child [AS 11.56.765] been
enacted 11 days sooner, they would have been able to "hang all
the spectators who were cheering, by their thumbs, as well." He
noted that the perpetrators have been prosecuted but he is
unsure how successfully or how "far down the ranks of the
perpetrators they got." He also mentioned that the judge threw
out the perpetrators' attempts at a defense that "she said she
was 16."
CHAIR ROKEBERG pointed out that at the prior hearing on HB 243,
committee members, including himself, had made a number of
suggestions regarding certain aspects of the bill. After noting
that a committee substitute (CS) has not been offered, Chair
Rokeberg asked Representative Dyson whether he has considered
making any changes to HB 243.
REPRESENTATIVE DYSON indicated that he is satisfied with HB 243
as currently written but noted that he did make changes to his
sponsor statement based on Representative Kookesh's comments
from the prior hearing.
Number 1067
JULIA P. GRIMES, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety (DPS), testified via teleconference,
stating simply that she was available to answer questions.
Number 1077
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
noted that the DOL testified last year in support of HB 243.
With regard to lines 12-13, in which HB 243 proposes to delete
from current statute the phrase ", unless the victim was under
13 years of age at the time of the alleged offense", she
confirmed that this change endeavors to conform statute to case
law engendered by the State v. Fremgen Alaska Court of Appeals
case. This 1998 decision held that the constitution requires a
defendant be allowed to present a defense of reasonable mistake
of age even though the victim is under 13; thus the language
being deleted is no longer apposite on constitutional grounds.
In response to a question, she surmised that HB 243 as currently
written is constitutional; "I don't think it's unreasonable at
all, under the constitution, to require that a person take
reasonable efforts to determine how old a young sexual partner
is, and these suggestions - these are really suggestions as to
what those measures include."
REPRESENTATIVE BERKOWITZ said he agreed. He went on to say,
however, that although the reasonable measures provision doesn't
trouble him, he is concerned about language on lines 10-12 that
says:
"reasonable measures" does not include mere statements
by the victim or the victim's friends that the victim
is that age or older
He elaborated, saying it seems to him that, first of all, if a
person is having any kind of sexual contact, he/she is going to
have more than a [mere] statement; therefore, he is not sure
what the significance of that language is. He asked whether the
DOL has examined the aforementioned language in the context of
"this crime."
MS. CARPENETI, after acknowledging that she had not done so
personally, surmised that the purpose of that language is to
make it clear to people that they need to be more cautious than
simply listening to a young, potential victim and his/her
friends' claims of appropriate age.
REPRESENTATIVE BERKOWITZ said that he did not think that the
aforementioned language really adds anything to current law, and
that he is concerned about cluttering the criminal code with
unnecessary language. To illustrate, he used the example of a
victim who says he/she is of age; according to HB 243, that
statement would not be [sufficient for a defense]. And yet, he
argued, [there will always] be more than just a statement
involved in the commission of this sort of crime; there's going
to be a contact. He surmised, therefore, that the defendant
will be able to say, "I had this physical contact, I looked at
her, I saw her, and I listened to her." Thus, he opined, trying
to say that "mere statements" doesn't constitute "reasonable
measures" doesn't seem to do anything.
Number 1291
MS. CARPENETI, after acknowledging that perhaps that particular
language may simply not express the purpose as well as it could,
offered her interpretation that the purpose is to state that
["mere statements"] are not enough to equal "reasonable
measures".
REPRESENTATIVE BERKOWITZ countered:
What I'm saying is, you're never going to have just
that; you don't have a commission of a sexual assault
just by mere statements. You have commission of the
sexual assault with a physical contact, and so you're
going to have the physical contact, and the
statements. ... So [with regard to] the defense, this
doesn't mean anything - which is why I think it
strengthens the bill to just leave "undertook
reasonable measures to verify that the victim was that
age or older".
MS. CARPENETI noted that the discussion is about sexual abuse
rather than sexual assault.
REPRESENTATIVE BERKOWITZ offered that his argument still
applies; "you're going to need to have contact."
MS. CARPENETI said that she would assume that "mere statements"
by the victim are something that the court could take into
account, but they're not, on their own, enough. She added that
she believes that there are often cases in which those
statements are the only ones that the defendant relies on to
conclude that the he/she may go ahead and have consensual sex
with the victim.
CHAIR ROKEBERG clarified that HB 243 applies to both the sexual
assault and the sexual abuse statutes.
REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti if she could
provide him with a hypothetical case in which a defendant would
rely solely on statements and not on the physical appearance of
the victim.
Number 1380
MS. CARPENETI said that she was sure that there would not be
such a case. She elaborated:
I'm sure that the defendant relies on appearance and
tone of voice and, one would hope, that the defendant
would rely on other things, too, but it's pretty easy
to say, "Oh gee, I talked to her and her friends and
they assured me that they were all 16 years old and,
shucks, I believed them, and that's what I wanted to
do anyway."
REPRESENTATIVE BERKOWITZ said he is unclear on why disqualifying
the statements of the victim or the victim's friends adds
anything to [paragraph (1)] of HB 243.
MS. CARPENETI acknowledged that perhaps it would be best to
maybe say: "alone, statements by the victim and the victim's
friends do not [constitute] 'reasonable measures'". She added
that she could understand Representative Berkowitz's point that
creating a definition and excluding some things might cause some
confusion.
CHAIR ROKEBERG said that he tended to agree with Representative
Berkowitz, and that he assumed that the first reasonable act a
person would take would be to ask the age of the person with
whom he/she intended to have sexual relations with. If the
defendant failed to do at least that much, he/she could not then
attempt to use even "statements" as part of a defense, he
opined.
MS. CARPENETI noted that under HB 243 a defendant might still
try to use a "statement" as evidence, but it would not be
enough, by itself, to serve as a defense. On a prior point, she
clarified HB 243 would apply mostly in sexual abuse cases
because in such cases, although the sex may be consensual in the
terms that most people are used to using, the law states that it
is not truly consensual because a child is not legally
recognized as being able consent under these circumstances.
REPRESENTATIVE BERKOWITZ asked whether there is a legal
distinction between "statements" and "mere statements".
MS. CARPENETI said not that she is aware of.
Number 1476
REPRESENTATIVE DYSON said:
We have a longstanding tradition ... in our country of
saying that at various ages, we classify people as
being able to make decisions on their own behalf, and
we have said that under 16, children are not able to
weigh all the things that need to be evaluated in
making the decision whether ... to have sex.
He acknowledged that the committee is free to change that age
limit to three years old if it so chooses. He pointed out,
however, that the current discussion is about placing the burden
of proof on the perpetrator to ensure that he/she is not taking
advantage of a child's immaturity, inexperience, or
vulnerability. Representative Dyson reminded members that the
goal of HB 243 is to cut out a defense that is being used more
frequently, and that his intention is to protect children and
ensure that older people do not take advantage of them. On a
slightly different topic, he mentioned that for kids on the
street - runaways - the currency used is sex, and whether it
pays for food, lodging, or drugs, these so-called consensual sex
acts are performed as a survival tactic by children in dire
straights, and are not truly consensual.
REPRESENTATIVE BERKOWITZ explained that his concerns center on
the ability of the criminal justice system to function in a
holistic fashion. He mentioned jury rights and the
prosecution's ability to have flexibility in presenting a case
to a jury as just two possible aspects that might be affected;
"when we put words into criminal statutes, we need to look very
closely at how those words translate into real action." He
referred to the language on lines 9-10: "checking government-
issued photo identification", and asked for an explanation of
what, exactly, that term means. He asked what happens if a
young person provides a fake identification (ID), what if the ID
is not an officially recognized government ID, and what if the
ID is from another country. He then posited that there is a
whole range of problems that could come into play. "When you
start itemizing things in a criminal code, you present
opportunities for a defense to say, 'This isn't on the itemized
list, and therefore it doesn't really apply,'" he said.
Representative Berkowitz added that his preference has always
been to give the jury and the prosecution the widest latitude
possible and let the system work the way it works best: put the
facts out there, make the charge, and argue it. This is why, he
opined, that "reasonable measures" sitting by itself offers the
best protection to defendants, to victims, and to the integrity
of the [criminal justice] system.
CHAIR ROKEBERG said he has some concerns along the same lines.
He asked Ms. Carpeneti what would happen if the victim had
provided what later turned out to be a fake ID.
MS. CARPENETI acknowledged that if the fake ID was a reasonable
copy, it could bolster the defense.
CHAIR ROKEBERG surmised then that having that requirement
specifically listed could strengthen a defense, and that that is
not what the sponsor intends. He suggested that the intent of
the sponsor is to take away a defendant's reliance on the
victim's statement regarding his/her age.
Number 1815
REPRESENTATIVE DYSON explained that he did not see the
verification-of-age requirement as being much different than
what is required for the purchase of alcohol or tobacco. He
said, "I would hope ... that if indeed the defense can show that
they were given a credible piece of ID - a driver's license, a
concealed weapon permit - with photo ID on it, ... and it looked
good, ... that that would be a good defense." He posited,
however, that even if that fact were presented as part of a
defense, a judge would still have the ability, as happened in
the gang-rape incident, to "look down over his nose, push his
glasses up, and say 'Phooey, this girl doesn't look like she's
16 to anyone'" and reject such a defense. He opined that HB 243
would not limit the court's flexibility, and noted that he has
not heard from anyone, either the "prosecution's side" or the
"defense community," that the current language could create
problems.
REPRESENTATIVE OGAN mentioned that according to his experience,
the promises made by various people in the administration that
latitude would not be abused have not been kept.
REPRESENTATIVE DYSON asked Ms. Carpeneti whether the language
"'reasonable measures' includes" is exclusive, or if it could
also include any other measures.
MS. CARPENETI replied that the aforementioned language is not
exclusive, and noted that there is a definition in [AS
11.81.900(b)(30)] that says: "'includes' means 'includes but is
not limited to'".
Number 1935
REPRESENTATIVE BERKOWITZ, returning the hypothetical example of
a victim using a false ID, asked if that would allow the
presentation of the defense even if there were no other
evidence.
MS. CARPENETI said she believes so.
REPRESENTATIVE BERKOWITZ: "So even if you had a false ID, she
looked like she was five [years old], but she gave me a
legitimate ID, that's ok?"
MS. CARPENETI replied that that does not mean that the defense
would be accepted; it means that the defendant could present the
affirmative defense.
REPRESENTATIVE BERKOWITZ argued: "Except for [the fact that]
they 'reasonably believed' and they 'undertook reasonable
measures' - '"reasonable measures" includes checking government'
ID. The government ID was checked, [the] government ID said she
was of age, therefore, the defense is permissible."
MS. CARPENETI countered: "Well, you still have to prove that
the person reasonably believed the victim." She noted that the
"reasonably believed" provision is part of the existing statute
and would not be changed by HB 243. The following language
regarding "undertook reasonable measures..." would be an
additional requirement and create "double prongs," she
explained.
REPRESENTATIVE BERKOWITZ, after noting that a "reasonable
belief" is necessary for the presentation of a defense, went on
to say that according to his recollection, before an affirmative
defense can be made, it has to be presented to the court - to
the judge - who then gives permission to "run" the defense. He
asked for confirmation of this point.
MS. CARPENETI said there generally has to be some evidence. She
posited, however, that since the courts have determined that
allowing a person to make this defense is constitutionally
required, there would not have to be much evidence to present
such a defense. In response to a question, she confirmed that
generally, a defendant could not, just on his/her own, present a
defense without having the courts permission.
REPRESENTATIVE BERKOWITZ, after noting that the term "reasonable
belief" found in paragraph (1) is part of the existing statute,
asked what paragraph (2) adds from a legal perspective, rather
than from a "sending a message" perspective. "If we want to
send messages, we can take out letters and do all that," he
added.
Number 2035
MS. CARPENETI offered that paragraph (2) adds a requirement that
the defendant undertake some action to justify his/her belief,
action that the jury would conclude was a reasonable measure.
REPRESENTATIVE BERKOWITZ asked: "What is necessary to form a
reasonable belief? Don't you have to take an act in order to
gain the information to form a reasonable belief?"
MS. CARPENETI suggested that a person could take in information
in a variety of ways: "maybe ask a question, maybe use your
eyes and your other senses to evaluate a person."
REPRESENTATIVE BERKOWITZ asked whether taking that information
in would constitute taking measures.
MS. CARPENETI said it would depend on what the jury thinks is
reasonable under the circumstances.
REPRESENTATIVE BERKOWITZ surmised then that "it's a jury call."
He added that he is very leery about invading the province of
the jury.
REPRESENTATIVE DYSON posited that paragraph (2) adds an
objective [standard] as opposed to just the "wishful thinking"
that a perpetrator might use to justify his/her actions. He
added that the burden is on the perpetrator to prove that he/she
was not taking advantage of a child. "That's the message, and
that's what I want these guys to go to jail for," he stated. He
went on to say that he'd had the opportunity to speak with
approximately 50 public health nurses when they gathered in
Anchorage two weeks ago and they relayed to him that most of the
young girls who come in for services have sexual partners who
are five to seven - sometimes more - years older. He added that
at least three-fourths of the nurses have "blown the whistle" on
these [men] for taking advantage of children. He surmised that
the problem of sexual predation of children is a significant
one. And while he acknowledged that there could still be the
problem of people pretending to be a parent, and parents
prostituting their children, and minors creating false IDs
(which they do to buy alcohol and tobacco), he posited that HB
243 would add "objective things that folks can do," to ensure
that they are not sexually abusing a child. With regard to the
term "government-issued photo identification", he noted that he
has not seen anyone objecting to that standard being used for
the purchase of alcohol and tobacco.
Number 2184
REPRESENTATIVE OGAN, on the issue of parents falsely confirming
that a child is old enough to have sex - for example, when
parents prostitute their own children or when they give
permission to adult friends to sexually abuse their children -
asked whether this circumstance could be used as an affirmative
defense.
MS. CARPENETI said she believed that that circumstance would be
something that the jury would have to evaluate but could be
raised as an affirmative defense.
REPRESENTATIVE DYSON noted that such a defense, coincidentally,
would be "dropping the parent's fannies in the soup." He
recounted that one of his foster daughter's father was "trading
her to the landlord for the rent," that this man is still in
jail, and that he - Representative Dyson - hoped he stayed
there. He pointed out that "Anything you bring up that they can
do as a positive measure to verify could be counterfeited or
faked, but in doing so, you drop another criminal action on it."
He noted that there are laws against supplying false IDs and
laws against prostituting children.
REPRESENTATIVE MEYER recounted that while he served on the
Anchorage Assembly, the issue of teenage nightclubs arose, and
he recalled that one particular operator off of Tudor road did
not care how old his patrons were, which meant someone there
could be eight or nine years old or thirty years old. He
surmised that if someone in dark, smoky surroundings was shown
what later turned out to be a false ID, that could still be
considered an endeavor to verify someone else's age, even though
the circumstances weren't conducive to an accurate viewing of
the ID. He mentioned that he thinks what Representative Dyson
is doing via HB 243 is good because it would make it just a
little bit harder for older people to prey on children.
Number 2373
REPRESENTATIVE DYSON noted that he anticipates giving more
attention to the specifics of HB 243, and he assured the
committee that if a better solution comes up, he will make the
appropriate changes. On a slightly different topic, he
mentioned that the moose hunting regulations are not sympathetic
if a hunter has made a mistake with regard to how wide the rack
is or whether there is a spike or a fork. He said that most
hunters whom he knows are very careful in choosing a target and
are inclined to pass up the shot rather than get caught up in
prosecution. He also noted that the same is true of the
commercial fishing industry; the burden is on the mariner to
take all prudent measures to ensure that the law is not being
violated. He asked of the committee: "Do you really care more
about the moose and the ... salmon than our girls and ... boys
that are being exploited?" The burden is on the perpetrator to
take all reasonable measures to not break the law or hurt a
child, he stated.
REPRESENTATIVE KOOKESH, in response, noted that:
At the same time we're also chartered with the
responsibility of making sure that anything we pass
out of here is constitutional, so those limits and
those questions that we ask are based on that. So
while I appreciate your emotion, you also have to
remember we have a responsibility here. The
responsibility goes to asking those questions. So I
think it is really unfair for anyone to characterize
us as not caring.
REPRESENTATIVE DYSON said he misspoke and he apologized for
that. He said he was really just asking that "we come anywhere
close to the same standard" of protection for children as for
moose and salmon.
TAPE 02-3, SIDE B
Number 2480
REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti whether there is
another use of the term "measures" in statute.
MS. CARPENETI said she would have to look that up; she was not
familiar with the term "measures" in this context.
REPRESENTATIVE BERKOWITZ noted that one of the dangers of
incorporating new terms in the criminal code is that they're not
subject to interpretation; they haven't had the whole history of
case law behind them. He said that in his experience, it is
generally preferable to find terms that have a use and have a
meaning that express the concept. He added that he is searching
for the appropriate wording, and posited that perhaps it is
"efforts" as opposed to "measures" but he is not sure that that
is the right term.
MS. CARPENETI said that she would be willing to do some research
on that issue. She surmised, however, that the term "reasonable
measures" was used because it is also defined in paragraph (2).
CHAIR ROKEBERG asked Representative Dyson if it would be fair to
say that HB 243 is intended to allow for the defense of
reasonable belief but to disallow a mere statement of age as the
sole basis for that belief; "You wish to have other measures, or
other verifications made, beyond the mere statement of age."
REPRESENTATIVE DYSON confirmed that that is a fair assumption of
what he is trying to do.
Number 2388
CHAIR ROKEBERG closed the public testimony on HB 243. He then
mentioned that he wanted to [discuss] an amendment to line 9:
after "older;" delete "'reasonable measures' includes checking
government-issued photo identification or checking with the
victim's parents;". [This suggested amendment was discussed but
not offered.] He surmised that deleting this language would let
the jury and the court determine whether the "measures" taken by
the defendant are sufficient according to the circumstances of
the case. He added that such an amendment would still keep the
burden on the defendant to go beyond the reliance of a "mere
statement".
REPRESENTATIVE JAMES opined that such an amendment would not
"get us any further than we are today." She posited that a lot
of cases arise from an "on the spot judgment" that a young
person is legally old enough to have sex with, and that keeping
the description of what "reasonable measures" entails will help
avoid those types of situations.
REPRESENTATIVE OGAN said he finds it hard to believe that in a
spontaneous situation, a person is going to take the time to
check an ID or call up someone's parents to verify the age of
the person he/she is about to have sex with. He observed that
Representative Berkowitz has a point regarding the unintended
consequence of "loading up statute" with language that "smart
lawyers" are going to find a way around.
REPRESENTATIVE DYSON commented that he appreciates what [the
committee] is doing, and that he thinks Representative James'
observation contains a lot of wisdom: "we really want people to
be careful about these decisions." He also noted that
Representative Ogan raises the same point that Representative
Kookesh raised at the last hearing on HB 243: people aren't
going to take the extra steps entailed in paragraph (2). At
least until the first three or four people go to jail because
they did not take these extra steps, then people will start
being more careful, he posited. The law has a tremendous
ability to reinforce the positive and to penalize the negative,
he noted.
Number 2197
REPRESENTATIVE DYSON, on the issue of Chair Rokeberg's suggested
amendment, countered that if the committee is going to follow
that line of reasoning, perhaps they should also consider
amending language pertaining to the purchase of alcohol and
tobacco in the same fashion and, thus, enable store clerks to
base their decisions on whether to sell to someone solely on a
"reasonable belief" without the additional requirement of
checking someone's "government-issued photo identification". He
said he thinks that having sex, particularly with someone just
met, "is a bigger deal" than buying cigarettes.
CHAIR ROKEBERG noted that he had not yet offered the amendment
being discussed; he was just getting an idea of what the
committee wished to do. He surmised that the testimony
indicates that if a victim shows a false ID, then that could be
considered prima facie [evidence] that the defendant took
sufficient "reasonable measures".
REPRESENTATIVE DYSON countered that in situations in which the
victim looks younger than stated on the ID or claimed by
perpetrator, the judge isn't going to let that defense stand.
He expressed opposition to Chair Rokeberg's suggested amendment.
REPRESENTATIVE MEYER said he agreed with Representative Dyson
with regard to Chair Rokeberg's suggested amendment; HB 243
should have that "extra hurdle in there."
REPRESENTATIVE COGHILL said that the language to be deleted by
Chair Rokeberg's suggested amendment should remain in HB 243.
That language is not just a laundry list, he opined, but rather
is an indicator that the legislature wants a higher [standard].
He also noted, however, that having HB 243 state that
"'reasonable measures' does not include mere statements" could
be problematic, although it, too, is just an indicator.
Number 1909
REPRESENTATIVE BERKOWITZ said:
All the good intention that this bill undertakes are
going to be doomed if we don't cure the legal problems
that exist with it. ... Just looking at what the
intent is and then looking at just the language here -
this is confusing, this is ambiguous, and it doesn't
get where we need to go. We're using terms like
"measures", which ... Black's Law Dictionary ... uses
... as a term for surveying work. We're talking about
checking government ID. What does checking mean?
Does it mean waving it around? ... We're taking about
"mere statements"; we're taking about "victim's
friends". Are we going to be defining "friends" in
the criminal code now?
Let's think about what we're trying to do. Let's work
hard, get the right language to do it, and do it
right. It's going to take a little bit of effort.
The intent is good, the objective is good; let's get
there. Let's not just say "We've got to move this
thing through the process." This is a judiciary
committee; let's do our job. ... It's not that hard.
It's just a question of doing a little bit of work and
maybe taking a little bit of time.
REPRESENTATIVE JAMES said she agreed with the concept of taking
a few more days to come up with the correct language to
discourage people from preying on children, as long it is done
in a reasonable amount of time.
REPRESENTATIVE MEYER remarked that because Legislative Legal and
Research Services drafted HB 243, he trusts that the current
language is sufficient. He also noted that because the sponsor
is comfortable with HB 243 as written, it's good enough for him.
REPRESENTATIVE BERKOWITZ remarked that while Representative
Meyer and the sponsor may be satisfied with the current language
in HB 243, he prefers to exercise his own independent judgment
and do his own thinking on issues, and he is not comfortable
with the bill the way it is. He continued:
I don't think it accomplishes the goal - which I share
with Representative Dyson - and I don't want to kick a
half measure down the committee hall; I think we ought
to do what we think is right. And we can trust other
people, but what did Ronald Reagan say? "Trust but
verify." And that's our job here; let's verify that
this is doing the right thing. It's not going to hurt
to put this thing through the paces a little bit [to
get] a better product.
Number 1760
CHAIR ROKEBERG noted that Representative Ogan has brought forth
another suggested amendment for discussion, 22-LS0770\A.1,
Luckhaupt, 1/22/02, which reads as follows [handwritten changes
included]:
Page 1, lines 4 - 13:
Delete all material and insert:
"(b) In a prosecution under AS 11.41.410 -
11.41.440, whenever a provision of law defining an
offense depends upon a victim's being under a certain
age, it is an affirmative defense that, at the time of
the alleged offense,
(1) the defendant reasonably believed the
victim to be that age or older, unless the victim was
under 13 years of age at the time of the alleged
offense; and
(2) if the defendant was, at the time of
the alleged offense, 19 years of age or older, the
defendant undertook reasonable care to verify that the
victim was that age or older; "reasonable care"
including but not limited to checking government-
issued photo identification or checking with the
victim's parents; "reasonable care" does not include
statements by the victim or the victim's friends that
the victim is that age or older."
REPRESENTATIVE OGAN explained that his suggested amendment would
make paragraph (2) applicable only if the defendant was 19 or
older at the time of the alleged offense; would change
"reasonable measures" to "reasonable care", which is defined in
Black's Law Dictionary; would add the phrase "including but not
limited to" as it pertains to what "reasonable care" entails;
removes the term "mere" as it applies to "statements"; [and
reinserts language regarding victims under the age of 13, which
the Fremgen decision has ruled unconstitutional]. He posited
that his suggested amendment, which he is merely discussing and
not offering at this time, would lay to rest Representative
Berkowitz's concerns regarding giving the jury some latitude,
while providing some guidelines as to what "reasonable care"
means.
Number 1686
CHAIR ROKEBERG, after noting that he agrees with several of the
points that have been raised, assigned HB 243 to a subcommittee
for the purpose of working out a solution. He appointed
Representative Ogan as chair, and also appointed Representatives
Berkowitz and Meyer. He requested that the subcommittee bring
HB 243 back before the full committee by mid-February.
ADJOURNMENT
Number 1619
CHAIR ROKEBERG called an at-ease at 2:12 p.m. in order to
prepare for the Department of Law update. [For minutes on the
Department of Law update regarding State v. Auliye (minor in
possession), see the 2:23 p.m. minutes for this date.]
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