Legislature(2021 - 2022)GRUENBERG 120
03/09/2022 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Board of Governors of the Alaska Bar | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 9, 2022
1:32 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Liz Snyder, Vice Chair
Representative Harriet Drummond
Representative Jonathan Kreiss-Tomkins (via teleconference)
Representative David Eastman
Representative Christopher Kurka
Representative Sarah Vance
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING(S):
Board of Governors of the Alaska Bar
Jedidiah Cox - Anchorage
- CONFIRMATION(S) ADVANCED
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5
"An Act relating to sexual abuse of a minor; relating to sexual
assault; relating to the code of military justice; relating to
consent; relating to the testing of sexual assault examination
kits; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 5
SHORT TITLE: SEXUAL ASSAULT; DEF. OF "CONSENT"
SPONSOR(s): REPRESENTATIVE(s) TARR
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD
03/26/21 (H) SPONSOR SUBSTITUTE INTRODUCED
03/26/21 (H) READ THE FIRST TIME - REFERRALS
03/26/21 (H) STA, JUD
03/27/21 (H) STA AT 1:00 PM GRUENBERG 120
03/27/21 (H) Heard & Held
03/27/21 (H) MINUTE(STA)
04/13/21 (H) STA AT 3:00 PM GRUENBERG 120
04/13/21 (H) Heard & Held
04/13/21 (H) MINUTE(STA)
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
04/20/21 (H) Heard & Held
04/20/21 (H) MINUTE(STA)
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
04/27/21 (H) Heard & Held
04/27/21 (H) MINUTE(STA)
04/29/21 (H) STA AT 3:00 PM GRUENBERG 120
04/29/21 (H) Scheduled but Not Heard
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
05/04/21 (H) Moved CSSSHB 5(STA) Out of Committee
05/04/21 (H) MINUTE(STA)
05/06/21 (H) STA RPT CS(STA) 1DP 5AM
05/06/21 (H) DP: TARR
05/06/21 (H) AM: VANCE, STORY, EASTMAN, KAUFMAN,
KREISS-TOMKINS
05/06/21 (H) FIN REFERRAL ADDED AFTER JUD
03/04/22 (H) JUD AT 1:00 PM GRUENBERG 120
03/04/22 (H) Heard & Held
03/04/22 (H) MINUTE(JUD)
03/09/22 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
JEDIDIAH COX, Appointee
Board of Governors of the Alaska Bar
Anchorage, Alaska
POSITION STATEMENT: Testified as an appointee to the Board of
Governors of the Alaska Bar.
JOHN SKIDMORE, Deputy Attorney General
Office of the Attorney General
Criminal Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Presented a document to the committee,
titled "HB 5 Additional Document - Department of Law Sexual
Assault and Consent Draft Language" and answered questions.
ACTION NARRATIVE
1:32:00 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:32 p.m. Representatives Drummond, Vance,
Snyder, Kriess-Tomkins (via teleconference), and Claman were
present at the call to order. Representatives Kurka and Eastman
arrived as the meeting was in progress.
^CONFIRMATION HEARING(S):
CONFIRMATION HEARING(S):
^Board of Governors of the Alaska Bar
Board of Governors of the Alaska Bar
1:32:39 PM
CHAIR CLAMAN announced that the first order of business would be
the confirmation hearing on the governor's appointee to the
Board of Governors of the Alaska Bar.
1:32:52 PM
CHAIR CLAMAN opened public testimony.
1:33:15 PM
JEDIDIAH COX, Appointee, Board of Governors of the Alaska Bar,
testified as the appointee to the public member seat on the
Board of Governors of the Alaska Bar. He provided examples of
accomplishments of the board during his preceding three-year
tenure. Among these accomplishments he stated that the board
had purchased the building in Anchorage which provides revenue
and improvements to the work environment. He stated that he is
a member of the building management subcommittee which is
overseeing the renovations. He noted that the board has also
implemented mitigation measures during the COVID-19 pandemic,
including maintaining the availability of the exam to Alaska Bar
Association members and members of the public. He pointed out
that the board has also transitioned the positions of Chief
Executive Officer and its general counsel. He added that the
board has not increased its dues for members despite inflation.
He shared that he is a member of the committee for the Alaska
Bar Association which conducts performance evaluations.
1:35:49 PM
MR. COX, in response to a question from Representative Eastman,
answered that the availability of attorneys in Alaska is a
matter of concern to the board. He spoke about the test score
requirement and how the board had reviewed this requirement in
2019. He stated that the board had not determined a need for a
change to the score at that time, and the board would reexamine
the issue at its next meeting. He noted that there exists a
national shortage of attorneys, and there is a pro bono program
for economically disadvantaged individuals. In response to a
follow-up question, he stated that the Alaska Bar Association
has reciprocity with all 50 states and Washington, D.C. This
allows for individuals with three years of good standing with
the local state's bar association to practice law in Alaska,
with a few additional caveats.
CHAIR CLAMAN asked Mr. Cox to share his experience and level of
participation in board activities as a public, non-attorney
member.
MR. COX shared that he has been impressed with the board's
ability to consider diverse viewpoints, and the public member
often brings important perspectives on key issues.
REPRESENTATIVE EASTMAN referred to the resume provided to the
committee and asked Mr. Cox to explain his experience in the
Florida House of Representatives.
MR. COX answered that he was the executive secretary for the
Florida State Legislature's House Rules Committee. He shared
that he often dealt with lobbyists.
1:40:39 PM
CHAIR CLAMAN, after ascertaining there was no one else who
wished to testify, closed public testimony on the confirmation
hearing of the governor's appointee to the Board of Governors of
the Alaska Bar.
REPRESENTATIVE EASTMAN commented on the shortage of practicing
attorneys in Alaska; however, there are individuals seeking to
be employed as attorneys. He encouraged the legislature and the
Alaska Bar Association to consider both of these needs during
the confirmation process.
REPRESENTATIVE DRUMMOND thanked Mr. Cox for his service and
participation in the process.
CHAIR CLAMAN offered that one of the challenges faced by the
board is the balance between increasing licenses and the quality
of competency among practicing attorneys.
1:43:26 PM
REPRESENTATIVE SNYDER stated that the House Judiciary Standing
Committee has reviewed the qualifications of the governor's
appointee and recommends the following name be forwarded to a
joint session for consideration: Jedidiah Cox for the Board of
Governor's for the Alaska Bar. She stated this does not reflect
the intent of any of the members to vote for or against this
individual during any further sessions for the purposes of
confirmation.
CHAIR CLAMAN announced that the name of Jedidiah Cox would be
forwarded to the joint session.
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
1:44:01 PM
CHAIR CLAMAN announced that the final order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act relating to
sexual abuse of a minor; relating to sexual assault; relating to
the code of military justice; relating to consent; relating to
the testing of sexual assault examination kits; and providing
for an effective date." [Before the committee was CSSSHB
5(STA).]
1:45:21 PM
JOHN SKIDMORE, Deputy Attorney General, Criminal Division,
Department of Law (DOL), testified during the hearing on CSSSHB
5(STA). He stated that he has been practicing law in Alaska for
more than 24 years, and during this time Alaska has had a
"pernicious" problem with sexual assault. Despite having
investigators, the Alaska State Troopers, municipal law
enforcement agencies, special prosecutors, and public outreach
campaigns to build awareness of the issue, Alaska has the
highest rate of sexual assault in the nation. He acknowledged
that the legislature has appropriated funding and passed
legislation to address the issues. Having prosecuted a variety
of sexual assault cases, he shared that he has been in the
untenable position of explaining to victims who had verbally
refused consent that the state was unable to prosecute because
of the [legal] definition of consent. He pointed out, per the
current law, if there is a lack of the use of force, or a lack
of a threat of force, it would not rise to the level of being a
crime.
MR SKIDMORE shared that he is the longest-serving member on the
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA)
and related his experience of explaining to victims why such
conduct is not prohibited by law. He expressed the opinion that
the meaning of the word "consent" is "willingness, harmony or
concordance, or agreement with what can happen." He argued that
it is long past the time to update the law accordingly. He
pointed out that law has evolved past the era where women were
viewed as property, and rape was not a crime against a woman but
a crime against her father or husband. He described consent to
a sexual act as an act both parties have an interest in doing.
He stated that the laws regarding consent have been changing,
and over the last decade the drafters of the Model Penal Code
began this review. He stated that several states have updated
laws to include three concepts: free will, the ability to
withdraw consent, and the consideration of the totality of
circumstances. He offered that DOL advocates the inclusion of
such concepts in changes to Alaska law.
MR. SKIDMORE recalled House Bill 49 [passed during the Thirty-
First Alaska State Legislature] had included attempts to
introduce these three concepts into law. He expressed
excitement of the current administration's support for the
changes regarding sexual assault in the law. He referred to the
document he passed out to the committee, titled "HB 5 Additional
Document - Department of Law Sexual Assault and Consent Draft
Language" [included in the committee packet]. The document
outlined DOL's proposed language change on the matter of
consent. He offered that the department is open to discussion
to determine the ideal language. He reiterated that the three
concepts [listed above] are important to the department.
MR. SKIDMORE reminded the committee that sexual assault in
Alaska is a long-standing problem. He emphasized that, should
the laws about consent change, it would not likely result in a
panacea which stops sexual assault. He stated that cases will
be as difficult to prove as they are under the current law
because this conduct typically occurs between two individuals in
a private setting without witnesses or recordings; however, this
does not equate to a lack of need for changes to the law. He
pointed out that young Alaskans are learning about healthy
relationships and the concepts of consent, and the state
government should recognize the existence of the need to update
the laws accordingly. He explained that the document before the
committee is not the proposed bill, [but suggested language].
He noted that Section 1 describes sexual assault in the first
degree, and the definition is the result from the study of this
legislation in other states. He noted that states with a
broader definition of consent maintain a separation of degrees
of sexual assault. In other words, a situation where consent is
not offered is different than when an individual is struck,
beaten, or threatened with a weapon, and each situation has
differing degrees of criminal conduct. He stated that the
proposed language provides that sexual assault would remain an
unclassified felony, punishable by 20 to 30 years in prison. He
read from the document, which read as follows [original
punctuation provided]:
(a) An offender commits the crime of sexual assault in
the first degree if
(1) the offender engages in sexual penetration
with another person without consent of that person by
(A) the use of force or the express or
implied threat of force against any person or
property; or
(B) causing the victim to become
incapacitated;
MR. SKIDMORE added that causing incapacitation of a victim would
not be a case where someone has a mental illness [and is unable
to offer consent.] He explained that causing incapacitation
would be a defendant making an affirmative act, such as giving a
drug, hitting, or strangling the victim. He explained that this
is newly proposed language in the definition of "use of force"
in the elements of assault.
MR. SKIDMORE stated that sexual contact is preserved in law in
the proposed language in Section 2, and AS 11.41.420(a) would be
updated to eliminate the need for the threat or use of force.
He referred to Section 3 of the document, drawing attention to
paragraph (7), which contains proposed language pertaining to
sexual assault in the third degree, which read as follows
[original punctuation provided]:
(7) under circumstances not proscribed under AS
11.41.420, the offender engages in sexual contact with
another person without consent of that person.
MR. SKIDMORE stated that the new definition would replace the
existing definition in AS 11.41.470(10) to include "without
consent". He stated that the proposed language would
distinguish when consent exists and when it does not exist, on
page 3, which read as follows [original punctuation provided]:
(A) means that there was not a freely given,
reversible agreement specific to the conduct at issue,
and is determined by the totality of the circumstances
surrounding the offense;
B) includes
(i) an expression of lack of consent through
words or conduct;
(ii) the defendant fraudulently representing
that the sexual act serves a professional
purpose: in this paragraph "professional purpose"
means an act the defendant has represented as a
necessary part or component of a provided
service, part of the routine course of a
procedure, or a component of the defendant's
profession that would occur if a person sought
services from another practitioner in the same
field as the defendant;
1:57:28 PM
MR. SKIDMORE explained that a lack of consent through words
or conduct could be evidenced by a victim saying "No," or
by a victim slapping or pushing an individual away. He
offered an example of a fraudulent representation of a
professional, such as a medical professional, personal
trainer, or yoga instructor, who engages in sexual contact
which is not necessary to the service provided. He stated
that this would be sexual assault.
MR. SKIDMORE pointed out Section 3, subparagraph (C), which read
as follows, [original punctuation provided]:
(C) In this paragraph,
(i) "agreement" does not include a current or
previous dating, social or sexual relationship by
itself, or the manner of dress of the victim
(ii) "freely given" means agreement to cooperate
in the act was positively expressed by word or action
pursuant to free will;
(iii) "reversible agreement" means an agreement
to engage in the conduct at issue may be revoked at
any time;
(iii) "expression of lack of consent" does not
require verbal or physical resistance and may include
inaction.
MR. SKIDMORE characterized revocation of consent as, "It's okay
to change your mind." He explained that the inclusion of the
potential for inaction is necessary because prosecutors
frequently encounter victims who, from shock or surprise, freeze
in the moment and do not provide the required consent. He
pointed out Section 5, regarding the crime of coercion. He
stated that this is when a person compels a victim to engage in
conduct when there is a legal right to abstain. He listed the
conduct beginning on paragraph (1), which read as follows
[original punctuation provided]:
(1) inflict physical injury on anyone, except
under circumstances constituting robbery in any
degree, or commit any other crime;
(2) accuse anyone of a crime;
(3) expose confidential information or a secret,
whether true or false, tending to subject a person to
hatred, contempt, or ridicule or to impair the
person's credit or business repute;
(4) take or withhold action as a public servant
or cause a public servant to take or withhold action;
MR. SKIDMORE stated that these types of behaviors, among the
others listed, would be sexual assault. He added that the
proposed language would include Section 6, which would repeal AS
11.41.470(8), which contains the current definition of consent.
He stated that CSSSHB 5(STA) would address sexual assault in
circumstances of fraud, which the administration has not taken a
position on. Also, he said CSSSHB 5(STA) would address sexual
abuse of a minor, increasing penalties if there is a 10-year age
gap. He stated that in current statute, the age gap is limited
to 4 years, and the administration has not taken a position on
this either. He offered that the administration supports the
proposed legislation's stance on consent and the Sexual Assault
Response Team (SART) kit testing.
2:03:18 PM
MR. SKIDMORE, in response to a question from Representative
Kurka, answered that Section 6 would be a conforming statutory
update to the definition of consent. In regard to this, he
encouraged the committee to focus on the three elements: free
will, reversable, and consideration of the totality of the
circumstances.
MR. SKIDMORE, in response to a question from Representative
Vance concerning the "totality of the circumstances", answered
that prosecutors review each case on an individual basis, as it
would be impossible to legislate every nuance. He postulated
that no two incidents of alleged sexual assault would be the
same. He stated that the law will often consider the totality
of the circumstances of an incident. In example, he explained
that the existence of a previous relationship may not be
consent, but if a couple had engaged in certain behaviors
previously, it would need to be evaluated as part of the
evidence in determining whether consent was given. He offered
another scenario in which a person unknown to the victim was
touched in the manner defined as sexual contact in a public
location. The court would consider if there existed any reason
the aggressor would think the conduct was appropriate. He
listed some other elements of circumstance: whether the two
people knew one another, where they were located, what previous
contact had occurred between them, and what communications may
have occurred to determine if a defendant had acted knowingly
and recklessly.
2:07:32 PM
REPRESENTATIVE EASTMAN asked whether the definition of
"agreement" would be excluded from the totality of the
circumstances.
MR. SKIDMORE answered that "agreement" is not constituted by the
factors listed in the definition and should not be considered by
itself.
REPRESENTATIVE EASTMAN asked whether consent would be legally
measured to determine when it had been revoked, especially in
the case of inaction.
MR. SKIDMORE answered that it is difficult for prosecutors to
prove this had occurred beyond a reasonable doubt. He answered
that an "agreement" is revoked when an individual indicates that
engagement in the conduct is no longer wanted. He offered
examples of an individual saying, "Stop," "Get off of me," or "I
don't want to do this anymore," or the individual pushing the
other individual away. He characterized these examples as clear
indications of the revocation of consent. He added that it
would be important to consider whether the other individual
continues the conduct with "reckless disregard". In response to
a follow-up question, he answered that an individual disrobing
in front of another would be an agreement to engage in some type
of conduct, resulting in the two questions: what type of conduct
and to what extent.
2:13:00 PM
REPRESENTATIVE EASTMAN asked whether a subset of issues under
circumstances not proscribed in AS 11.41.410 would amount to a
crime.
MR. SKIDMORE answered by offering an example of coercion, in
which an individual threatens to accuse an individual of having
committed a crime if the victim does not engage in sexual
contact. He stated that the investigation would seek to
determine if the threat was enough to overcome the person's free
will. He advised that all the elements need to be met to amount
to the incidence of sexual assault. If all elements are not
met, the crime would be coercion.
REPRESENTATIVE EASTMAN asked whether a person could be convicted
of a crime of coercion with sexual acts, but not a crime of
coercion with sexual assault.
MR. SKIDMORE answered that sexual acts defined as "sexual
assault" include sexual contact and sexual penetration, with
each having a definition in statute. He expressed the
possibility for a person to engage in what may be called "a sex
act," but it does not meet the definitions; therefore, it would
need to be outside of these definitions to not be considered and
prosecuted as a sexual assault.
REPRESENTATIVE EASTMAN expressed his concern about acts which do
not qualify as a sexual assault or coercion.
MR. SKIDMORE offered that the phrase "other circumstances not
proscribed" exists so the crime would either be sexual assault
or coercion.
2:18:39 PM
REPRESENTATIVE SNYDER gave an example of sexual penetration by
one person with another person who was unconscious, but the
perpetrator had not caused the other individual to be
unconscious. She questioned whether this act would be sexual
assault in the first degree.
MR. SKIDMORE answered that it would be sexual assault in the
second degree. In response to a follow-up question about the
degree of the crime, he answered that if the defendant causes
the incapacitation, this would be a more significant crime.
REPRESENTATIVE SNYDER allowed that crimes involving force are
serious and asked what constitutes the second degree in the
scenario described earlier. She questioned whether this
classification is unique to Alaska.
MR. SKIDMORE referenced the classification in the Model Penal
Code and stated that this is in the legislation for all other
states he had researched. He offered that both instances
involve the commission of a crime, but what makes one worse is
when the offender causes the incapacitation. This is a greater
predatory crime in the eyes of the law.
2:22:17 PM
CHAIR CLAMAN stated that the language in the document
categorizes "sexual penetration without consent" to be a first-
degree sexual assault, regardless of whether the victim was
"punched." He expressed the opinion that victims have reported
experiences equally violent. He questioned DOL's rationale in
treating the occurrence of additional violence as a higher
degree than the failure to understand the lack of consent.
MR. SKIDMORE responded that victims have expressed a similar
point of view. He noted that this approach exists across the
country, reflecting the Model Penal Code and federal law. He
stated that, when an individual engages in additional acts of
violence, or causes a victim to become incapacitated, these
circumstances indicate the perpetrator took additional steps to
engage in the criminal conduct. He added that these additional
steps can be seen as aggravating factors and can be treated more
harshly through sanctions or sentencing.
CHAIR CLAMAN pointed out the criticism of the current law is
that to prosecute any sexual assault, the definition requires
the use of force. He questioned DOL's requirement of force for
sexual assault in the first degree but not for second- or third-
degree assaults.
MR. SKIDMORE, regarding sexual assault and consent, responded
that the discussion for this across the country addresses what
is it that overcomes the consent. For example, consent may be
overcome using force, the threat of force, or through some other
coercive behavior. He added that many states have laws which
indicate consent may be overcome using fraud, and there are
cases where the person is incapable of consenting, such as an
incapacitated person. He added that most, if not all, states
have laws concerning persons of a certain age as not being
capable of giving consent. He explained that laws address the
different ways in which consent is not obtained and which of
these ways is more egregious. Regarding the threat of force, or
the use of force, there is uniformity among laws which puts this
at the highest level of crime. He noted that some state laws
require the use of a firearm or serious physical injury to
amount to the highest level of crime. He explained that the
decision of what is the highest level of crime is policy decided
by each state's legislature. He added that the Alaska law does
not categorize the use of a dangerous instrument during the
commission of a crime to amount to a more serious crime, but
that aggravating factors may exist to address these concepts.
In response to a follow-up question, he stated that, under the
current law, aggravating factors must be found by a jury prior
to the court applying the aggravating factor at sentencing.
2:29:08 PM
REPRESENTATIVE KURKA offered an example in which a person was
incapacitated due to medical intervention and another person,
who was not directly involved in the incapacitation of the
victim, commits a sexual assault. He suggested that this would
imply premeditation and could be a serious crime. He asked for
a distinction between the first- and second-degree assault.
MR. SKIDMORE agreed that the circumstance described would be
alarming. He referred to paragraph (3), which addresses sexual
assault in the first degree. He relayed that it occurs when a
person engages in sexual penetration with another person who the
offender knows is mentally incapable, and who is in the
offender's care under the authority of law. He further
explained that paragraph (4) addresses when the offender engages
in sexual penetration and knows the victim is unaware the sexual
act is being committed, and the offender is a healthcare worker,
or the offense takes place during the professional treatment of
the victim. He noted that both instances are tantamount to
sexual assault in the first degree. He answered that sexual
assault in the first degree in a presumptive sentencing range
for a first offense is 20 to 30 years and sexual assault in the
second degree is 15 to 30 years.
2:32:01 PM
REPRESENTATIVE SNYDER asked whether the use of force would be
required for penetration of an incapacitated person because the
victim could not further aid the act. She asked for an
explanation of whether this amounted to the existence of the use
of force.
MR. SKIDMORE offered that this question is one of great
consternation among prosecutors. He referred to AS 11.81.900
and the definition of the "use of force". He stated that the
Alaska Court of Appeals opined the use of force should be more
than the force which is necessary to achieve the outcome of
sexual penetration or contact. He cited the cases of the State
v. Townsend, Court of Appeals No. A-10502 (Alaska Ct. App. Sep.
14, 2011), and the State v. Mayfield, 442 P.3d 794 (2019), which
contain discussions regarding the use of force beyond what is
necessary solely for the act itself.
CHAIR CLAMAN postulated that neither case has been published.
2:34:16 PM
REPRESENTATIVE EASTMAN asked whether the case of sexual assault
involving penetration of someone who is incapacitated is equal
to the case of sexual assault involving contact with semen.
MR. SKIDMORE answered that the distinctions in penalties for the
two scenarios would be a policy call by the legislature. He
added that sexual assault in the second degree has a larger
presumptive sentencing and includes a 15-year range of potential
penalty imposed at sentencing.
2:36:15 PM
REPRESENTATIVE KURKA reiterated the question whether the sexual
act on an incapacitated person would necessarily require the use
of force.
MR. SKIDMORE, concerning someone who is already incapacitated,
answered that the use of force would not be further considered.
He added that, under current law, the use of force pertaining to
"without consent" occurs when a person's willingness to engage
in the conduct is overcome by the threat or use of force. He
added that, cases involving a person who is unable to provide
consent, the use of force is not an issue despite the occurrence
of the use of force. He postulated that a case involving a
person beating another person who is incapacitated before or
during a sexual assault might be charged with sexual assault in
the second degree along with a separate crime of assault.
2:38:06 PM
CHAIR CLAMAN asked whether Mr. Skidmore could recall the facts
and circumstances in the State v. Townsend case.
MR. SKIDMORE stated that the case is commonly referred to as "a
case of surprise." He explained that an individual was in a bar
in Juneau, and another person grabbed his crotch. He stated
that the case was reported to the police department, and the
district attorney proceeded with filing charges of sexual
assault, to which the Court of Appeals ruled that surprise was
not cause for sexual assault. In response to a follow-up
question, he explained that the court's reasoning had been
because the conduct occurred by surprise, and force was not
necessary to accomplish the act; therefore, it did not qualify
as a sexual assault.
MR. SKIDMORE, in response to a question from Representative
Vance, answered that the case was dismissed with no conviction.
CHAIR CLAMAN asked whether there might have been the potential
to prosecute a crime other than sexual assault in the State v.
Townsend case, such as harassment or fourth-degree assault.
MR. SKIDMORE answered that the crime of assault requires more
pain or physical injury to exist. He opined that the case could
amount to charges of either a Class A or Class B misdemeanor of
harassment. He added that the law requires for harassment to
have occurred, the conduct would be committed with the intent,
or with the conscious objective, to engage in offensive contact
with the intent to harass the person. As a defense under
current law, the defendant could relate he did not intend to
harass the other person, or he held the belief the other person
would welcome the contact. He added that another filed bill
would address this matter under discussion; however, under
current law, it is not illegal to grab an individual's genitals.
He offered this as an example of the need for the reform of the
law.
CHAIR CLAMAN asked what the outcome would have been had the
victim reported the act as having caused pain.
MR. SKIDMORE postulated that the defendant could likely be
charged with assault in the fourth degree by the definition of
physical injury under AS 11.81.900, as this requires pain.
REPRESENTATIVE VANCE complimented Mr. Skidmore's ability to
recall details of cases, as this aided in the discussion.
2:44:02 PM
REPRESENTATIVE SNYDER, should CSSSHB 5(STA) pass, questioned
whether the State v. Townsend case circumstances would result in
a charge of sexual assault in the third degree.
MR. SKIDMORE answered that it would.
REPRESENTATIVE SNYDER asked whether sexual contact would
necessarily be limited to areas of the body typically associated
with sexual contact.
MR. SKIDMORE offered the example that a foot massage never
qualifies as sexual contact. He noted that sexual contact is
defined in AS 11.81.900(b)(61) as touching, either directly or
through clothing, a victim's genitals, anus, or female breast.
He added that, under current law, the inner thigh or the groin
would not meet the definition.
REPRESENTATIVE SNYDER asked whether the state would prosecute an
individual who derived pleasure from touching an unwilling
person's body [part, where the body part] is not currently
defined in the statute.
MR. SKIDMORE answered that, unlike some states requiring the
existence of sexual gratification from a particular type of
touching, Alaska law requires only certain parts of the body
qualify as sexual contact. He noted that contact with semen is
included in current law in Alaska.
2:47:10 PM
REPRESENTATIVE EASTMAN asked whether the conduct described in
the State v. Townsend case had amounted to sexual contact
because it had involved contact through clothing with the
victim's genitals.
MR. SKIDMORE answered that the contact itself did qualify, but
the use of force did not exist. He stated that the
circumstances of the use of force, or the threat of force, are
required. He pointed out that the focus of the discussion is
whether there is a lack of consent and whether the use of force
is sufficient.
REPRESENTATIVE EASTMAN referred to the definitions in AS
11.81.900(b)(61) and (62) regarding penetration. He asked
whether the law draws a distinction between male and female
victims.
MR. SKIDMORE responded that they are treated as equal under the
definition. In closing, he stated that as a prosecutor of more
than 24 years, he has struggled with the concept of consent, as
he understood the definition in law. He expressed the opinion
that this area in law should be changed within the purview of
the legislature. He urged the committee to consider the
proposed definitions and to take action to change the law to
codify a common understanding of what is allowed and what is not
allowed.
2:50:35 PM
CHAIR CLAMAN announced that HB 5 was held over.
2:51:08 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:51 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Board of Governors of the Alaska Bar Appointment - Jedediah Cox Application 3.9.2022.pdf |
HJUD 3/9/2022 1:00:00 PM |
|
| Board of Governors of the Alaska Bar Appointment - Jedediah Cox Resume 3.9.2022.pdf |
HJUD 3/9/2022 1:00:00 PM |
|
| HB 5 v. W 5.6.2021.PDF |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Sponsor Statement 2.23.2021.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM HSTA 3/27/2021 1:00:00 PM |
HB 5 |
| HB 5 Sectional Analysis v. W 5.6.2021.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Explanation of Changes v. G to v. W 5.5.2021.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Supporting Document - Articles, Age and Offender Table for SAM 1 and SAM 2, and Consent Tabular Analysis 2.4.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Supporting Document - Letters Received as of 4.9.2021.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM |
HB 5 |
| HB 5 Supporting Document - Testimony Received as of 3.3.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM |
HB 5 |
| HB 5 Opposing Document - Letters Received as of 4.26.2021.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Fiscal Note DOA-OPA 2.25.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Fiscal Note DOA-PDA 2.25.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Fiscal Note DOC-IDO 2.26.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Fiscal Note LAW-CRIM 2.25.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Fiscal Note DPS-DET 2.25.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM |
HB 5 |
| HB 5 Fiscal Note DPS-SCDL 2.26.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Fiscal Note JUD-ACS 3.2.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 4/15/2022 1:00:00 PM |
HB 5 |
| HB 5 Additional Document - Department of Law Sexual Assault and Consent Draft Language 3.3.2022.pdf |
HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM |
HB 5 |