01/25/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB298 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 298 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 25, 2010
1:02 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative Carl Gatto
Representative Bob Herron
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 298
"An Act relating to the crimes of harassment, possession of
child pornography, and distribution of indecent material to a
minor; relating to suspending imposition of sentence and
conditions of probation or parole for certain sex offenses;
relating to aggravating factors in sentencing; relating to
registration as a sex offender or child kidnapper; amending Rule
16, Alaska Rules of Criminal Procedure; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 298
SHORT TITLE: SEX OFFENSES; OFFENDER REGIS.; SENTENCING
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/19/10 (H) READ THE FIRST TIME - REFERRALS
01/19/10 (H) JUD, FIN
01/25/10 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DANIEL S. SULLIVAN, Acting Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Along with others, presented HB 298 on
behalf of the administration.
JOSEPH A. MASTERS, Commissioner
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Along with others, presented HB 298 on
behalf of the administration.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Along with others, presented HB 298 on
behalf of the administration.
MICHAEL J. STARK, Member
State Board of Parole
Department of Corrections (DOC)
Anchorage, Alaska
POSITION STATEMENT: Along with others, presented HB 298 on
behalf of the administration.
DEREK DeGRAAF, Sergeant, Supervisor
Technical Crimes Unit (TCU)
Alaska Bureau of Investigation (ABI)
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Along with others, presented HB 298 on
behalf of the administration.
DWAYNE PEEPLES, Deputy Commissioner
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Along with others, presented HB 298 on
behalf of the administration.
ACTION NARRATIVE
1:02:21 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:02 p.m. Representatives Ramras,
Dahlstrom, Herron, Gatto, and Lynn were present at the call to
order. Representatives Gruenberg and Holmes arrived as the
meeting was in progress.
HB 298 - SEX OFFENSES; OFFENDER REGIS.; SENTENCING
1:02:50 PM
CHAIR RAMRAS announced that the only order of business would be
HOUSE BILL NO. 298, "An Act relating to the crimes of
harassment, possession of child pornography, and distribution of
indecent material to a minor; relating to suspending imposition
of sentence and conditions of probation or parole for certain
sex offenses; relating to aggravating factors in sentencing;
relating to registration as a sex offender or child kidnapper;
amending Rule 16, Alaska Rules of Criminal Procedure; and
providing for an effective date."
1:05:09 PM
DANIEL S. SULLIVAN, Acting Attorney General, Department of Law
(DOL), said that HB 298 is just one of the steps the
administration is taking to address the problem of sexual
assault and domestic violence (DV) in Alaska. Among other
things, HB 298 would prohibit suspended imposition of sentence
(SIS) for those convicted of the crimes of human trafficking in
the first and second degree, distribution of child pornography,
possession of child pornography, and distribution of indecent
materials to minors; would make it a crime to access child
pornography on a computer with the intention of viewing it -
this is in response to an Alaska Court of Appeals ruling in
Worden V. State, 213 p.3d 144 (Alaska APP. 2009), which held
that current law does not prohibit viewing child pornography on
a computer; would provide the courts with the authority to
prohibit sex offenders, in cases involving children, from using
a computer or communicating with children under the age of 16;
would provide for enhanced sentencing, via an aggravating
factor, for crimes that involve victims incapacitated due to
alcohol or drugs; and would require those who must register in
other states as a sex offender or child kidnapper to also
register in Alaska regardless of whether the law under which
they were convicted is similar to Alaska law.
ACTING ATTORNEY GENERAL SULLIVAN emphasized that most if not all
of the provisions in HB 298 were developed by those on the front
line at the DOL, and address weaknesses in current law. In
conclusion, he again said that HB 298 is [part of] a strong,
comprehensive foundation, but is not the last word, and
expressed a willingness to work with the committee to improve
the bill and the administration's other efforts towards stopping
sexual assault and DV in Alaska, protecting citizens, and
bringing perpetrators to justice.
1:17:53 PM
JOSEPH A. MASTERS, Commissioner, Department of Public Safety
(DPS), added that the DPS has worked closely with the Council on
Domestic Violence and Sexual Assault (CDVSA) and the Alaska
Network on Domestic Violence & Sexual Assault (ANDVSA) on
preparing [legislation] to address the problem of sexual assault
and DV in Alaska, which currently has the highest rate of sexual
assault and DV in the nation; women in Alaska are two and a half
times more likely to be raped, with certain communities having
an even far higher rate, and children in Alaska are six times
more likely to be sexually exploited. Specifically, HB 298
focuses on offender accountability, and would give the DPS some
extra tools with which to deal with offenders and would-be
offenders, thereby making Alaskans safer.
CHAIR RAMRAS asked that statistics be provided comparing Alaska
with other states with similar populations, as well as a further
breakdown of the potential costs and potential results of the
proposed legislation, so as to be better able to quantify the
problem.
COMMISSIONER MASTERS agreed to do so, adding that in Alaska,
every year, the Division of Alaska State Troopers alone
investigates between 800-1,000 cases wherein women and children
have been sexually assaulted.
REPRESENTATIVE GRUENBERG - referring to Section 15, specifically
the language of proposed AS 12.63.100(6)(D) - questioned whether
the term, "jurisdiction" as used therein means both U.S.
jurisdictions and foreign jurisdictions.
1:29:47 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), offered her
understanding that it means just U.S. jurisdictions, but agreed
to research the issue further.
REPRESENTATIVE GRUENBERG questioned whether the bill also ought
to amend existing AS 12.63.030(a) such that when the department
notifies the Federal Bureau of Investigation (FBI) and the state
a [registered] sex offender or child kidnapper is moving to,
that the department also notify the "local political
subdivision."
ACTING ATTORNEY GENERAL SULLIVAN agreed to research that issue
further, but surmised that in notifying a state, one is also
notifying its political subdivisions as well.
REPRESENTATIVE GRUENBERG pointed out that sometimes there can be
a gap in communications between a state and its local
subdivisions.
REPRESENTATIVE GATTO questioned whether "bookmarking" an
Internet web site that contains child pornography is the same as
"downloading" it, since the person would then have direct access
to it.
MS. CARPENETI surmised that the representative from the Division
of Alaska State Troopers could better address that question.
1:35:30 PM
MICHAEL J. STARK, Member, State Board of Parole, Department of
Corrections (DOC), explained that Sections 1 and 2 of HB 298
were developed at the request of the State Board of Parole, and
are meant to correct an error made when AS 11.56.759 was adopted
in 2007, making it crime for parolees or probationers who'd been
convicted of sex offenses to violate their parole or probation.
That provision was meant to focus on probationers, rather than
on parolees, since probationers face long periods of probation
supervision. He surmised that parolees were included in that
2007 legislation simply because probationers and parolees are
often treated the same. However, probationers have part of
their sentence suspended and, then, once they've served their
period of incarceration, are supervised for a period of time as
set by the courts - which can be for as long as 25 years for sex
offenders - whereas parolees, both mandatory and discretionary,
are supervised for shorter periods of time and are fewer in
number.
MR. STARK explained that originally, parolees were not intended
to fall under AS 11.56.759, but because they were included, an
unintended consequence is that attorneys are now advising sex
offender parolees not to admit parole violations or suspect
behavior to their parole officers, thus increasing the risk to
the public that the sex offenders will reoffend. It is
therefore important that the references to parolees be taken out
of AS 11.56.759, just as Sections 1 and 2 of HB 298 propose. In
response to a question, he acknowledged that in some instances,
an offender can be both a probationer and a parolee and be
serving two different periods of time concurrently. In response
to another question, he said AS 11.56.759 must apply to
probationers because without it, if they violate the conditions
of their probation, they can't be prosecuted for that violation;
AS 11.56.759 provides probationers with an incentive to comply
with the conditions of their probation, but, again, this doesn't
really apply to parolees.
MR. STARK, in response to a further question, pointed out that
the Alaska State Constitution requires that the State maintain a
parole system, and so combining Alaska's probation system and
parole system would not be feasible.
1:47:59 PM
MS. CARPENETI explained that Section 3 of HB 298 rewrites the
crime of failure to register as a sex offender or child
kidnapper in the second degree, and is intended to clarify the
elements required, and address a May 2009 Alaska Court of
Appeals case, Moffitt v. State, wherein the court ruled that the
State must prove that the defendant made a conscious, deliberate
decision not to comply with the law; for purposes of the crime
of failure to register as a sex offender or child kidnapper in
the second degree, under Section 3, if the state proves that the
defendant had an obligation to register, knew of that
obligation, but didn't register, the State would have proved the
commission of that offense beyond a reasonable doubt. However,
Section 3 also provides for an affirmative defense that
unforeseen circumstances outside the control of the person -
such as being involved in an automobile accident, for example -
prevented him/her from registering, and that the person
immediately notified the DPS upon being able to do so.
MS. CARPENETI, in response to a question, said that a person who
is required to register must notify the DPS of any changes in
residence by the next business day, though some leeway could be
given on a case-by-case basis. Any delay longer than a few days
should be taken very seriously by the prosecutor, since the
whole point of sex offender registration is to keep tabs on
where these offenders are so that folks who live near the
offenders know it.
1:50:59 PM
MS. CARPENETI explained that Section 4 amends the crime of
harassment in the first degree, and addresses situations in
which a perpetrator gropes a person without giving him/her time
to voice a lack of consent. There have been a couple of recent
cases involving the crime of sexual assault in the second degree
- which involves sexual contact, i.e., touching - that have been
reduced to the crime of harassment in the second degree - a
class B misdemeanor - because the conduct happened so fast that
the court concluded that the victim didn't have adequate time to
indicate a lack of consent. Section 4, therefore, raises that
offense - touching sexual areas of the body - to a class A
misdemeanor, harassment in the first degree. She relayed that
the DOL would also be providing a similar amendment for sexual
abuse of a minor crimes, which don't have an element of consent,
so that the aforementioned type of behavior can still be
addressed without providing a lesser-included offense.
MS. CARPENETI explained that Section 5 amends the crime of
possession of child pornography - a class C felony. Again, this
is in response to Worden, wherein the Alaska Court of Appeals
held that current law does not prohibit viewing child
pornography on a computer if the perpetrator doesn't also
download it or save it somewhere on the computer. She noted
that a similar problem with federal law was addressed with a
similar amendment. A child is still victimized regardless of
whether the viewing of the child pornography occurs via a
computer or via printed matter, and so Section 5 would make it a
crime to access child pornography with the intent to view it.
Section 6 amends the penalty provision associated with that
crime. Section 7 provides an affirmative offense for possession
of child pornography; this is meant to address concerns that
sometimes computer viruses can make such material appear without
the person having taken any steps to access it himself/herself.
In order for a person to use the proposed affirmative defense,
he/she is required to have contacted law enforcement immediately
and to not have shown the material to another person.
MS. CARPENETI explained that Sections 8, 9, and 10 expand the
crime of electronic distribution of indecent materials to minors
such that the distribution of indecent materials to minors by
any means would also be prohibited; such distribution, whether
via computer or via other means, is classic "grooming" behavior.
Section 11, again, provides that those convicted of the crimes
of human trafficking in the first and second degree,
distribution of child pornography, possession of child
pornography, and distribution of indecent materials to minors
would be precluded from receiving SIS.
CHAIR RAMRAS, referring to Section 11, noted that an SIS might
be appropriate in cases where the perpetrator is a minor.
1:56:13 PM
MS. CARPENETI pointed out, however, that the offenses Section 11
would apply to are class B and C felonies, which cannot
automatically be waived to adult court, and so the perpetrators
of those crimes who are minors would still be treated as
juveniles, and the prosecution of juveniles is extremely
different from the prosecution of adults, allowing for the
adjustment of cases. She then explained that Section 12 - which
repeals and reenacts AS 12.55.100(e) - adds discretionary
conditions of probation for those convicted of a sex offense in
that when setting the conditions of probation, the court could
require such defendants to provide their probation officer with
"each electronic mail address, instant messaging address, and
other Internet communication identifier" that the defendants
use; current law already mandates that submitting to regular
periodic polygraph examinations shall be a condition of
probation for those who've been convicted of a sex offense.
REPRESENTATIVE GRUENBERG, referring to the existing statutory
provision mandating that regular periodic polygraph examinations
be a condition of probation for someone convicted of a sex
offense, questioned whether discussing potential other crimes
during such an examination would violate his/her privilege
against self incrimination.
MS. CARPENETI, noting that the bill doesn't alter that
provision, relayed that she would discuss that issue further at
a later time. She then explained that Section 13 amends the
aggravating factor pertaining to a victim's particular
vulnerability or incapacity to resist, to include the
consumption of alcohol or drugs as a reason for the particular
vulnerability or incapacity; this aggravating factor could be
applied for any crime wherein the victim was particularly
vulnerable or incapacitated, and is not limited to sex offenses.
1:59:51 PM
MS. CARPENETI explained that Section 14 adopts two new
aggravating factors: one that could apply for crimes against a
person - AS 11.41 - when the perpetrator had a dating or sexual
relationship with the victim; and one that could apply for the
crime of sexual abuse of a minor in the second degree under AS
11.41.436(a)(2) - a person 16 years of age or older having
sexual contact with a child under 13 years old - if the
defendant is 18 years old or older. She indicated that the DOL
would like to have the latter proposed aggravating factor
expanded - via a proposed forthcoming amendment - such that it
could also apply if the perpetrator of that crime is 10 years or
more older than the victim. The rationale behind this is that
it is significantly more serious for a person of mature age to
participate in sexual abuse of a minor crimes, particularly when
there is a large difference in age between the perpetrator and
the victim.
MS. CARPENETI explained that Section 15 would require those who
must register in other jurisdictions as a sex offender or child
kidnapper to also register in Alaska [regardless of whether the
law under which they were convicted is similar to Alaska law].
The DPS's sex offender administration, she relayed, has been
getting phone calls, fairly regularly, from people in other
states who are questioning whether they would still have to
register if they move to Alaska. No one wants Alaska to become
a safe haven for sex offenders and child kidnappers from other
states just because Alaska doesn't have a statute that is
substantially similar to the laws under which those perpetrators
were convicted, and Section 15 would alleviate that concern.
MS. CARPENETI explained that Section 16 mirrors federal law in
that the copying of child pornography as a part of discovery in
a criminal prosecution would be prohibited. Currently in
Alaska, the defense attorney can get a copy of the evidence, and
in a case involving child pornography, this means that the child
pornography gets copied and given to the defense attorney,
without limitation, regardless that it is a crime to distribute
child pornography, and this is just one more victimization of
the victim. Under Section 16, the defense attorney, the
defendant, and any expert [the defense would use] who wishes to
view the child pornography must go to the police and view it
there so that it wouldn't again be being copied and distributed.
2:02:42 PM
DEREK DeGRAAF, Sergeant, Supervisor, Technical Crimes Unit
(TCU), Alaska Bureau of Investigation (ABI), Division of Alaska
State Troopers, Department of Public Safety (DPS), relayed that
the TCU's primary responsibility involves examining electronic
evidence submitted by Alaska's various law enforcement agencies,
and conducting proactive investigations of suspects in Alaska
who share/distribute child pornography - typically via the
Internet; that the TCU is co-located with the [federal]
Immigration and Customs Enforcement (ICE) office in Anchorage;
that the TCU is part of Alaska's regional Internet Crimes
Against Children (ICAC) Task Force; and that the TCU partners
with federal agencies and local law enforcement agencies to
combat child exploitation.
MR. DeGRAAF, with regard to the earlier question regarding
[Section 5 and] bookmarking child pornography, explained that a
bookmarked Internet site serves as a pointer and doesn't
actually place any material on the computer. However, with the
use of certain settings or without the use of certain software,
images from an Internet site are cached on the computer in a
temporary Internet file; in other words, those images are
"saved" to the computer - typically without the knowledge of the
computer user - and can then be recovered during the forensic
investigation of the computer. In response to a question, he
said that although there are various forms of software designed
to erase a computer user's tracks on the Internet, they don't
always work as advertized, and so the law enforcement is still
able to recover the data. Furthermore, such tools are not often
used [effectively] by those seeking child pornography.
REPRESENTATIVE GATTO - referring to the proposed aggravating
factor in Section 14 pertaining to dating and sexual
relationships, and noting that young people don't seem to be
using the term "date" anymore - questioned whether using that
terminology in the bill is sufficient.
MR. DeGRAAF declined to speculate. In response to another
question [regarding Section 5], he explained that file sharing
software is now the number one way of sharing child pornography
throughout the world, and that this same technology is being
used to track suspects, because even when suspects attempt to
erase their tracks, other software on the computer can be used
to show that they were accessing child pornography. In response
to comments and a question, he said that law enforcement is
targeting cases wherein the victims are infants and prepubescent
children who are being sexually violated in movies, in pictures,
and in training materials designed to show other perpetrators
how to sexually abuse children without getting caught.
REPRESENTATIVE HOLMES asked how much child pornography is being
created in Alaska.
MR. DeGRAAF indicated that some is being created in Alaska, but
law enforcement doesn't have any statistics yet. He pointed out
that in child pornography cases, the much greater evil is the
sexual abuse of the child that's occurring while the pornography
is being made. He added, "All the images that we are able to
obtain through our examinations are sent to the National Center
for Missing & Exploited Children [NCMEC], and they can actually
tell us who a lot of these kids are, and most of them are not
from Alaska." In response to a question, he indicated that the
ICAC Task Force in Alaska is aware of and supportive of the
legislation.
2:15:32 PM
REPRESENTATIVE LYNN questioned how someone conducting legitimate
research on child pornography would be protected from
prosecution.
MR. DeGRAAF offered his understanding that there is some
protection for researchers, and that they would coordinate with
federal law enforcement agencies and couldn't engage in file
sharing. In response to another question, he said the bill
doesn't address this issue.
MS. CARPENETI, in response to a question regarding Section 12,
explained that the proposed new conditions of probation are
discretionary, not mandatory, and are just another tool the
courts can use to help combat recidivism. In general,
conditions of probation must be reasonable, related to the
crime, and make sense under the circumstances. In response to
questions regarding Section 14's proposed aggravating factor
pertaining to the crime of sexual abuse of a minor in the second
degree, she explained that most of the sexual abuse of a minor
crimes involve an age difference between the perpetrator and the
victim; that which of those crimes certain behavior would
constitute depends on many factors such as when the case was
referred to law enforcement, how old the perpetrator was, how
old the victim was, and the progression and length of the
victimization; that currently there is no statute of limitations
for sexual abuse of a minor crimes; that the age thresholds in
those crimes progress; that a subsequent change in the
perpetrator's age won't necessarily result in him/her being
charged differently; and that the statutes pertaining to sexual
abuse of a minor crimes are gender neutral.
MS. CARPENETI, in response to comments and questions, pointed
out that HB 298 focuses on sexual offenses - including those
pertaining to child pornography - and is just one of the steps
the administration is taking to address the problem of sexual
assault and domestic violence (DV) in Alaska.
2:30:58 PM
REPRESENTATIVE GRUENBERG referred to Section 3, and noted that
the language in proposed AS 11.56.840(b) specifies that no
culpable mental state is required for the crime of failure to
register as a sex offender or child kidnapper, and yet the
language in proposed AS 11.56.840(a)(2) appears to require a
mens rea of knowing. Should subsection (b) be amended to
clarify that no culpable mental state is required except as
provided in subsection (a)(2)?
MS. CARPENETI offered her understanding that the current
language is intended to mean that "that particular element of
the offense does not require a specific, separate, culpable
mental state." She observed that if the current language isn't
clear on that point, then further clarification would be in
order.
REPRESENTATIVE GRUENBERG agreed to work on that point. Noting
that a violation of proposed AS 11.56.840 would be a class A
misdemeanor, which has a maximum one-year jail sentence, he
asked whether a strict malum in se offense would be
constitutionally problematic if the perpetrator served that
entire year, since no mens rea would be required for such an
offense.
MS. CARPENETI explained that whenever a crime doesn't require a
culpable mental state, the legislature must clarify that that's
the intent, and this provision does that. Furthermore, the
crime of failure to register as a sex offender or child
kidnapper in the second degree is not a malum in se offense,
either under the bill or current law, because the State still
has to prove that the defendant knew he/she had to register.
REPRESENTATIVE GRUENBERG posited that once that point is
clarified, no further legal discussion on the issue need take
place. He then referred to Section 15, and asked whether the
language in proposed AS 12.63.100(6)(D) should be altered such
that it also refers to foreign jurisdictions.
2:35:11 PM
MS. CARPENETI again indicated that she would research that issue
further.
REPRESENTATIVE GRUENBERG again asked whether the bill also ought
to amend existing AS 12.63.030(a) such that when the department
notifies the Federal Bureau of Investigation (FBI) and the state
a [registered] sex offender or child kidnapper is moving to,
that the department also notify the local political subdivision.
MS. CARPENETI offered her understanding that currently the
department notifies the State registry, which is then
responsible for notifying other entities.
CHAIR RAMRAS surmised that there could be difficulties with
requiring notification of local political subdivisions. For
example, if an offender were moving to the Fairbanks area, would
notice have to be given to the Fairbanks North Star Borough, the
City of Fairbanks, or the City of North Pole?
2:36:51 PM
REPRESENTATIVE HOLMES referred to Section 3, specifically to
proposed AS 11.56.840(c)(2), and noted that in order to use the
affirmative defense provided for in subsection (c), the
perpetrator is required to have contacted the DPS both orally
and in writing. She asked whether the term, "orally" is really
necessary.
MS. CARPENETI explained that this provision would apply to sex
offenders who have not met their obligations to register, and so
it is important for such people to let the department know right
away when they move, and a letter can sometimes take a long time
to get where it's sent, whereas a telephone call is pretty
immediate. She indicated that she would be amenable to
researching this issue further.
REPRESENTATIVE HOLMES referred to Section 7, and questioned
whether the affirmative defense therein could be used by someone
who intentionally downloads child pornography but doesn't
download more than three images.
MS. CARPENETI acknowledged that point, suggested possibly
deleting the word, "accessed", and agreed to work on the issue
further.
2:40:01 PM
REPRESENTATIVE HOLMES referred to Section 16, and asked how its
proposed court rule amendment would work, and how it would
affect defense counsel's ability to represent clients.
MS. CARPENETI noted that [the Public Defender Agency (PDA)] has
relayed that it would make things more difficult. However,
regardless that defense counsel would no longer be able to
simply mail child pornography to expert witnesses, it would
allow everyone to comply with federal law. Such material should
not be copied [and distributed], but it must be available for
inspection.
REPRESENTATIVE LYNN referred to Section 8, and asked why AS
11.61.128(a) uses the term, "female breast". Why not just use
the term, "breast"? Why specify the gender? Lewd touching is
lewd touching regardless of gender, he opined.
MS. CARPENETI acknowledged that point, but explained that
Alaska's statutes pertaining to sexual assault and sexual abuse
of a minor crimes have always made the distinction between a
female breast and a male breast, and so if the language were to
be changed in the bill, it would require significant conforming
changes throughout those statutes. In response to questions
regarding the potential effects of HB 298, she proffered that
[among other things], making the prosecution of sex-offender
registrants who don't live up to their obligations clearer will
help the department keep the registry current so that people
will know where sex offenders are living; that requiring
offenders from other jurisdictions to register in Alaska, if
they are required to register in another jurisdiction, will make
a huge difference in protecting people because offenders
shopping around for a "safe" state to move to would be
discouraged from moving to Alaska; and that it could result in
the prosecution of more cases involving offensive physical
contact when the state can't prove a lack of consent.
MS. CARPENETI, in response to further questions, said:
I think sexual assault and abuse in our state is
pervasive. It's a hugely complicated problem, and we
don't have a silver bullet to say that "this" is what
we need to fix the problem. We do what we can and we
do what creative people suggest to us, but nobody has
come to me and said, "Please write ... a statute that
will forbid sexual assault and abuse and ... protect
our children." We ... do what we can.
2:49:01 PM
REPRESENTATIVE GATTO referred to Section 4, and questioned
whether the term "buttocks" ought to be added to proposed AS
11.61.118(a)(2).
MS. CARPENETI offered her understanding that the behavior of
offensively touching another person's buttocks is already
addressed in [AS 11.61.120] - harassment in the second degree -
but acknowledged that that term could be added to proposed AS
11.61.118(a)(2).
REPRESENTATIVE GATTO questioned whether under the term,
"computer", the committee ought to address other technology that
has Internet capacity.
MS. CARPENETI offered her belief that such technology would
already fall under the definition of "computer". In response to
a comment, she indicated that [for purposes of the statutes
related to child pornography] the computer has to have a screen.
In response to another question regarding Section 4, she
explained that the harassment statutes don't have the same flaw
regarding a lack of consent that the sexual assault statutes do,
and indicated that other forthcoming legislation would be
addressing that point further.
2:52:25 PM
DWAYNE PEEPLES, Deputy Commissioner, Office of the Commissioner
- Juneau, Department of Corrections (DOC), relayed that the DOC
has submitted a fiscal note based on past and current
convictions, and estimates provided by the DOL, but had some
difficulty quantifying the potential effects of some of the
bill's sections, and so intends to monitor them once they are
enacted. The DOC can't predict how many people will be affected
by HB 298, particularly the provisions related to aggravating
factors. In response to questions and comments, he concurred
that the fiscal note estimates a cost of [$136,900] in 2012, and
explained that the statewide average cost of incarceration per
person per day is approximately $126, that page 2 of the DOC's
fiscal note provides information specific to the bill's various
sections, and that the estimated convictions/sentences are a
gross aggregate. For example, with regard to just two sections
of the bill, Section 3 is estimated to generate three new
convictions per year with an average sentence of two months, and
Section 4 is estimated to generate eighteen convictions per year
with an average of sentence of thirty days.
REPRESENTATIVE HOLMES commented on the DOC's fiscal note's lack
of specific estimates for most of the bill's sections, and
suggested that the other departments work more closely with the
DOC to provide it with the information it needs to generate its
estimates.
CHAIR RAMRAS expressed dissatisfaction with the bill's limited
scope and fiscal impact.
2:58:19 PM
REPRESENTATIVE GRUENBERG questioned whether the term "another
jurisdiction" as used in Section 15 is intended to define that
same term as used in Section 11.
MS. CARPENETI said no. Taking the term "substantially" out of
proposed AS 12.55.085(f) via Section 11 is meant to address
litigation issues raised with regard to what constitutes
"substantially similar" in terms of presumptive sentencing and
criminal laws that place significance on other offenses in other
jurisdictions, and when such is the case, using just the term,
"similar" results in a more common-sense comparison between
criminal laws in Alaska and those of other states, and this
change has already been made to some of Alaska's other statutes,
but not yet to AS 12.55.085(f). [With regard to Section 15,]
given the fact that many sex offenders in other states do have
to register for their crimes in those states but currently don't
have to in Alaska because those crimes are not substantially
similar to Alaska's, the DOL would prefer that such people be
required to register in Alaska when they move here, and the bill
would effect just such a change.
REPRESENTATIVE GRUENBERG asked what the policy reason is for
requiring someone who has to register in another state to
register in Alaska when the underlying behavior isn't a crime in
Alaska. In response to a request, he agreed to wait until the
bill's next hearing to pursue this issue further.
CHAIR RAMRAS characterized HB 298 as a good piece of
legislation, but again commented on its limited scope.
[HB 298 was held over.]
3:02:09 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:02 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 2 HB298 Sectional.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 3 HB298 version A.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 4 HB298 CTS Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 1 HB298 HJUD Hearing Request.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 5 HB298 DOC Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 6 HB298 PDA Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 7 HB298 LAW Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 8 HB298-DPS Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM |
HB 298 |