Legislature(2021 - 2022)GRUENBERG 120
03/30/2022 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Select Committee on Legislative Ethics | |
| 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 30, 2022
1:03 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Liz Snyder, Vice Chair
Representative Harriet Drummond
Representative Jonathan Kreiss-Tomkins
Representative David Eastman
Representative Christopher Kurka
Representative Sarah Vance
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING(S):
Select Committee on Legislative Ethics
H. Connor Thomas - Nome
- 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
03/09/22 (H) Heard & Held
03/09/22 (H) MINUTE(JUD)
03/30/22 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
H CONNOR THOMAS, Appointee
Select Committee on Legislative Ethics
Nome, Alaska
POSITION STATEMENT: Testified as appointee to the Select
Committee on Legislative Ethics.
RENEE MCFARLAND, Deputy Public Defender
Appellate Division
Public Defender Agency
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on
CSSSHB 5(STA).
JAMES STINSON, Director
Office of Public Advocacy
Department of Administration
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on
CSSSHB 5(STA).
ACTION NARRATIVE
1:03:14 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:03 p.m. Representatives Drummond, Snyder
(via Teams), Kurka (via Teams), Vance, and Claman were present
at the call to order. Representatives Kreiss-Tomkins (via
Teams) and Eastman arrived as the meeting was in progress.
^CONFIRMATION HEARING(S):
CONFIRMATION HEARING(S):
^Select Committee on Legislative Ethics
Select Committee on Legislative Ethics
1:04:13 PM
CHAIR CLAMAN announced that the first order of business would be
the confirmation hearing on the governor's appointee to the
Select Committee on Legislative Ethics.
1:04:35 PM
CHAIR CLAMAN opened public testimony on the confirmation hearing
for the governor's appointee to the Select Committee on
Legislative Ethics.
1:04:50 PM
H CONNOR THOMAS, Appointee, Select Committee on Legislative
Ethics, referred the committee to his resum, a document,
entitled "Select Committee on Legislative Ethics Appointment -
H. Conner Thomas Resume 3.23.2022.pdf," [included in the
committee packet] and offered that he had been a resident of
Nome, Alaska, for 44 years. He said that he was an attorney and
had practiced law at Alaska Legal Services, the Alaska Public
Defender Agency, and he had served as a magistrate for the
Alaska Court System. He shared that he has been in private
practice since 1986. He stated that he had first been appointed
to the Select Committee on Legislative Ethics in 1998 and his
interest in the committee was based on his appreciation of the
field of ethics and his desire to contribute to public service
in Alaska. He stated his belief that there exists public
support for the committee and that the committee serves
individuals who are subject to the Alaska Ethics Act via the
"Heads Up" Policy.
1:07:06 PM
CHAIR CLAMAN asked Mr. Thomas what the length of his term of
service on the committee would be.
MR. THOMAS answered that it would be for three years.
REPRESENTATIVE DRUMMOND noted that Mr. Thomas had first been
appointed in 1998, and she asked whether he had served a three-
year term and whether he was a current member of the committee.
MR. THOMAS answered that he had served the initial 3-year term
and was currently serving on the committee, and that he had been
in continuous service since.
REPRESENTATIVE EASTMAN stated that during his own service on the
committee, there had been some difficulty in filling vacancies,
and he asked Mr. Thomas if the problem persists.
MR. THOMAS answered that the problem persists for recruiting
members. He noted that there exist two alternate seats. He
stated that there had been advertisement of vacancies.
REPRESENTATIVE SNYDER asked Mr. Thomas to offer his opinion on
why difficulties with recruitment persist. She allowed that she
did not have knowledge of all the issues that the committee
faces.
MR. THOMAS conceded that he was not certain about the cause of
the problem. He stated that the workload of the committee was
not burdensome to its members. He allowed that the subject
matter at times could be contentious or acrimonious but stated
that it was only intermittently so.
1:11:10 PM
CHAIR CLAMAN, after ascertaining that there was no one else who
wished to testify, closed public testimony.
REPRESENTATIVE EASTMAN alluded to Representative Snyder's
earlier line of questioning and suggested that the legislature
attempt to ascertain problems with recruitment of members and
offer solutions.
REPRESENTATIVE KREISS-TOMKINS expressed his appreciation to Mr.
Thomas for his years of service on the committee, which he
characterized as an important one.
REPRESENTATIVE SNYDER offered her appreciation of Mr. Thomas'
service.
REPRESENTATIVE DRUMMOND echoed others' appreciation of Mr.
Thomas' service of more than 30 years.
CHAIR CLAMAN offered his appreciation to Mr. Thomas' years of
service, which he characterized as important. He echoed the
concern raised by Representative Eastman that recruitment for
the committee should be improved.
1:13:48 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: H. Connor Thomas for the
Select Committee on Legislative Ethics. She stated this does
not reflect intent by 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 H. Connor Thomas would
be forwarded to the joint session.
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
[Contains discussion of SB 187.]
1:14:35 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).]
CHAIR CLAMAN mentioned to the committee that SB 187 was related
to CSSSHB 5(STA). He asked a representative from the Public
Defender Agency to explain to the committee how the change to
the definition of consent in the proposed bills would affect sex
crime prosecution and defense as compared to the current
definition in statute.
1:16:06 PM
RENEE MCFARLAND, Deputy Public Defender, Appellate Division,
Public Defender Agency, Department of Administration, stated
that, under current law, sex assault prosecutions require the
state to prove that the conduct at issue was without consent.
She added that the statute defines "without consent" to be
different from what people generally consider it to be. She
explained that "without consent" means that a person, with or
without resisting, is coerced by the use of force against a
person or property, or by the expressed or implied threat of
death, imminent physical injury, or kidnapping. She noted that
there exists another provision in which a defendant causes a
person to be incapacitated. She stated that "force" has a broad
definition in law and means any bodily impact or restraint. She
stated that sexual assault is conduct that is coerced using
force. She stated that both proposed bills would repeal the
definition of "without consent" and would provide a definition
that is more aligned with how non-lawyers perceive the meaning
of consent. She stated that CSSSHB 5(STA)eliminates the
requirement of the use of force and would include affirmative
consent. She added that the use of force could be taken as
evidence of a lack of consent but that it would not be required
for prosecution. She stated that SB 187 would create the
distinction that sexual conduct that is done through force would
remain a higher-level offense. She added that there would exist
a lower-level offense that would involve a lack of affirmative
consent. She also noted that the definition of consent is
different in each of the two proposed bills, and that CSSSHB
5(STA)contains more detail and direction. She concluded that
both bills would result in major differences in prosecution in
Alaska when compared to current law.
1:18:38 PM
JAMES STINSON, Director, Office of Public Advocacy, Department
of Administration, echoed the comments offered by Ms. McFarland
and added that SB 187 would maintain more of the current
statutory framework regarding the use of force. He stated that
discussions on SB 187 had revealed concerns regarding treating
conduct without consent compared to that involving a more
forceable rape with the use of a weapon and the classification
of those felonies.
CHAIR CLAMAN asked, should CSSSHB 5(STA) pass, how caseloads
would be affected regarding consent.
MR. STINSON answered that fiscal notes had been drafted that the
change to the definition of consent by the passage of either
CSSSHB 5(STA) or SB 187 would be presumed to have the same
fiscal impact. He described the impact as being a much broader
range of conduct potentially captured and the Department of Law
would anticipate the prosecution of more cases. He added that
the cases would be expected to be more litigious and would
result in more motions and more susceptibility to go to trial.
MS. MCFARLAND agreed with Mr. Stinson's appraisal that caseload
would increase, should either bill pass. She stated that the
passage of either bill would capture conduct that is not
currently prosecuted. She added that the Department of Law
would anticipate a significant increase in a complex caseload
and would require experience and time due to the serious nature
of the crimes.
1:21:42 PM
REPRESENTATIVE EASTMAN asked for a comparison of Alaska sexual
assault law compared to that of other states.
CHAIR CLAMAN asked to clarify whether Representative Eastman was
asking about current statute or the proposed bill.
REPRESENTATIVE EASTMAN answered his inquiry was for that of
current statute.
MS. MCFARLAND answered that her experience in practicing law was
solely in Alaska. She offered that current statute tracks with
common law that resistance is not required. She added that the
change to statute that had been adopted in 1978 removed the
requirement that a victim resist. She stated that some states
have adopted affirmative consent provisions similar to those in
the proposed bills. She offered to follow up with the committee
and provide a synopsis of the laws in other states.
REPRESENTATIVE EASTMAN asked for an estimate of the additional
resources that would be needed, should CSSSHB 5(STA) pass.
MS. MCFARLAND answered that the Department of Law had drafted a
fiscal note, but that it was indeterminate. She added that a
draft fiscal note had been submitted for SB 187 that she
indicated could be comparable to that which CSSSHB 5(STA) would
require. She stated that the primary driver on these fiscal
notes would be the affirmative consent language in the bills.
She explained that the fiscal note contained a total of 11 new
positions, 5 of which would be lawyers and 6 of which would be
staff positions, and that those would consist of office
assistants, paralegals, and investigators. She noted that the
estimate was likely a conservative one and it is not known what
the actual increased workload would be. She noted that the sex
assault cases are most often assigned to the most experienced
and efficient lawyers and are serious cases with serious
consequences. She added that the experience and efficiency
among those lawyers had been based on the existing statutory
scheme and there would likely be some loss of experience and
efficiency in prosecuting cases differently. She added that
this fact, along with the anticipated increase in cases, could
result in the fiscal note being an under-estimate of the needs
that may come to exist.
1:26:06 PM
CHAIR CLAMAN asked Mr. Stinson to refer to Representative
Eastman's earlier question regarding laws in other states and
asked for his input on that, in addition to the question
regarding anticipated additional resources needed.
MR. STINSON stated his belief that two states have affirmative
consent laws, and that he did not have more to add to that line
of questioning. He recalled that there had been discussion in
other committees on the bills that had revealed that the change
to affirmative consent in those states had been so recent that
not a lot of data was available on the impacts to prosecution
and defense resources.
REPRESENTATIVE VANCE asked whether there was a belief that,
should either bill pass, more cases would be prosecuted from the
perspective of the victims and whether more prosecutions would
occur.
CHAIR CLAMAN invited both Mr. Stinson and Ms. McFarland to
provide testimony.
MR. STINSON stated that one conclusion would be that there would
be more conduct charged and more cases prosecuted. He added
that the fundamental problems with prosecuting these types of
cases would endure. He stated that there may exist some false
hope about what the bills may accomplish regarding the impact of
a prosecution to a victim. He added that investigation and
cross-examination in cases would remain the same. He noted that
there exists the potential for litigation [should either bill
pass] regarding the new law interacting with the "rape shield"
law.
MS. MCFARLAND agreed with Mr. Stinson's conclusion that there
would be more prosecutions. She suggested that more cases could
be brought to trial rather than being dismissed at indictment
and especially for those involving assaults in the second
degree, which involve sexual contact rather than sexual
penetration. She stated that the question of whether more
convictions would follow would be subject to a jury's
consideration of the totality of the circumstances.
1:30:42 PM
REPRESENTATIVE DRUMMOND asked who the Public Defender Agency
defends.
MS. MCFARLAND answered that the Alaska Public Defender Agency
represents indigent Alaskans charged with a crime with a
criminal defense, individuals whose children are subject to
state custody, individuals who are undergoing civil commitment,
those who are engaged in post-conviction litigation in the trial
and appellate courts, juveniles, and, most recently, people who
are subject to quarantine and isolation proceedings.
MR. STINSON offered that the Office of Public Advocacy (OPA)
would provide representation for the same individuals as Ms.
McFarland listed. He added that OPA additionally provides
guardians-ad-litem for Child in Need of Aid cases and for cases
involving elder fraud.
REPRESENTATIVE DRUMMOND asked who defends a victim.
MR. STINSON answered that the Department of Law prosecutes those
cases, and the Office of Victims' Rights represents victims in
those proceedings.
REPRESENTATIVE DRUMMOND asked for confirmation that there is
reluctance to provide safety to victims based on the anticipated
need for new staff. She asked where defendants are housed while
awaiting trial.
MS. MCFARLAND stated that the agency does not take a position on
the proposed legislation, and the purpose of the invitation to
testify was to allow the committee to understand how the
proposed legislation is likely to affect the work being done.
She answered that some defendants are in jail, some are released
with conditions while awaiting trial awaiting trial, and each
are subject to each judge in each individual case. She added
that, when a defendant is unable to meet conditions of release,
should they exist, the defendant is held in custody while
awaiting trial.
MR. STINSON echoed Ms. McFarland's statement that he was
testifying neither in favor of nor in opposition to the proposed
legislation; he was present to aid the committee's understanding
of potential impacts to the agency and its resources, should the
bill pass. He emphasized that the merits of the bill were a
matter of a policy determination by the legislature.
1:35:19 PM
REPRESENTATIVE DRUMMOND stated that she would support an
increase in staff for both agencies, should it become necessary.
She asked the current status of SB 187, and for an explanation
of the reason that there had been much discussion of it during
the current meeting.
CHAIR CLAMAN offered that an earlier presentation to the
committee regarding the administration's approach to consent had
some differences to that which was proposed in CSSSHB 5(STA),
and that that approach was included in SB 187. He added that a
house companion bill to SB 187 was being heard by the House
State Affairs Standing Committee. He stated that the reason for
the discussion of SB 187 was to retain information previously
heard on the topic and definition of consent. He stated that he
did not know the current status of SB 187.
CHAIR CLAMAN noted that the Alaska Rape Shield Law had been
referenced and he asked for a description of how the law is
practiced in current statute and what changes would occur if an
affirmative consent provision was added to the law.
MR. STINSON noted that the Alaska Rape Shield Law was contained
in AS 12.45.045 and directs that a victim's prior sexual history
may not be admitted in a sexual assault case unless certain
circumstances are met. He explained that there exists case law
in which, a judge may find, outside of the presence of the jury,
that the information is relevant and is potentially admissible.
He offered an example that included the possibility that a
victim's sexual history with the defendant could be admissible.
He stated that changing to an affirmative consent framework
could raise questions such as the use of a victim's sexual
activity as part of an alibi. He stated that there may exist an
argument regarding the manner of consent that could be outside
of the rape shield law. He offered a hypothetical example in
which a defendant may claim that consent had been affirmed by
the victim in a manner similar to what other individuals may
characterize as affirmative consent and the question would be
whether the rape shield law would bar such testimony and
preclude the defendant from using it in his/her defense.
1:40:39 PM
CHAIR CLAMAN asked for an example of an actual scenario in which
the Alaska Rape Shield Law would bar admission of prior sexual
conduct of a victim and in which, should the law pass, the
evidence would no longer be barred.
MR. STINSON offered that the current law pertaining to the use
of force or coercion, prior sexual history of a victim would not
be relevant unless it involved prior contact with the defendant.
He noted that the rape shield law had been designed so that a
victim may avoid being humiliated or having his/her sexual
history brought up. He noted that the affirmative consent
framework would address whether a victim's words or actions
would indicate consent, and that a defendant may have prior
knowledge of how a person gives consent in current or previous
relationships. He added that it could be conceivable that there
could be a defense investigation that would bring that up to
give weight to the claim that the defendant's actions had been
affirmatively consented to. He postulated that, should a
dispute arise to whether there had been affirmative consent, it
would likely be relevant that certain words or actions
consistent with past actions could be admissible. He added that
it could be considered as part of the totality of the
circumstances.
MS. MCFARLAND offered that the rape shield statute codifies
evidence rules, and it requires that evidence be relevant to the
issue presented under Rule 401. She added that, under Rule 403,
the evidence must be more probative than prejudicial. She noted
that the Alaska Court of Appeals had considered the
admissibility of evidence pursuant to the Alaska Rape Shield Law
and that it is identical to those two rules. She added that the
law prescribes that there exist procedures requiring a defendant
seeking to admit evidence of a victim's past sexual history to
apply to the court and that the judge would make a ruling in
advance of evidence being brought to trial.
CHAIR CLAMAN offered a hypothetical scenario in which a person
is charged with sexual assault after engaging in sexual conduct
on a Friday night and subsequently returned to the victim's
apartment and alleged that prior contact was tantamount to
consent based on prior sexual history. He asked what the
difference in prosecution would be between the existing law and
the proposed bill.
1:46:01 PM
MS. MCFARLAND answered that, under the current law, it would be
difficult to determine the relevance of the prior conduct to
determine whether it had been forced or coerced. She stated
that, should CSSSHB 5(STA) pass, the prior conduct may be more
relevant. She stated that a judge would examine whether there
had been freely given, reversable agreement to the conduct. She
added that Section 5 of the bill addresses a lack of consent
based on the circumstances of the contact. In the hypothetical
scenario offered by Chair Claman, knowledge of prior conduct may
be relevant and probative to the totality of the circumstances,
as long as it was not overly prejudicial; it would not confuse
the issue, and an invasion of privacy should not occur.
CHAIR CLAMAN asked whether the change proposed in CSSSHB 5(STA)
would focus on the conduct of the victim rather than that of the
perpetrator.
MS. MCFARLAND offered her opinion that it would. She noted that
prosecution under current law seeks to prove that there exists
coercion or use of force.
MR. STINSON offered that he agreed with Ms. McFarland's
statements. He suggested that judges would use discretion in
admitting prior sexual conduct as evidence. He offered that the
change to affirmative consent would necessarily pertain to the
conduct of the victim. He opined that the hypothetical scenario
would still require a judge to consider the victim's prior
conduct for relevance, and its susceptibility to be prejudicial
and an invasion of privacy when taken with all the other facts,
including recklessness to a lack of consent.
1:51:26 PM
REPRESENTATIVE VANCE asked whether the current law would require
the existence of the use of force and whether the proposed bill
would direct the requirement of proof of reckless disregard for
consent.
MR. STINSON answered that a defendant would necessarily be
reckless regarding consent. He suggested that testimony would
occur to demonstrate whether affirmative consent had been given.
MS. MCFARLAND referred to Representative Vance's earlier
statement regarding current law and drew the distinction that it
was not the use of force but coercion that amounted to the use
of force. She noted that prosecutions of sexual assault in the
second degree were mostly associated with coercion and involve
cases where a victim is compelled to submit to the conduct
because of the threat of the use of force.
1:53:08 PM
REPRESENTATIVE DRUMMOND referred to language in Section 5, on
page 5, lines 17 and 18, that referenced enforcement of the
Alaska rape Shield Law. She noted that the language indicates
that a current or previous dating, social, or sexual
relationship by itself or the manner of dress of the person
involved with the defendant in the conduct at issue may not
constitute consent, and she questioned how a judge would rule to
allow previous sexual conduct into the prosecution of a case,
should CSSSHB 5(STA) pass.
MS. MCFARLAND offered that the phrase "by itself" would be
central to a judge's interpretation of whether to allow such
evidence. She suggested that, should a defendant seek to admit
such behavior as evidence of consent, a judge would likely refer
to AS 12.45.045 pertaining to rules of evidence. She suggested
that, when considering consent, the fact that there may have
been a prior relationship does not imply that consent had been
given. She drew attention to the same section, on line 29, in
which the surrounding circumstances shall be considered, which
may result in the possibility that past conduct may be more
admissible than it would be under current law.
MR. STINSON offered that case law exists in Napoka v. State in
which testimony related to a prior consensual sexual
relationship is admissible when it meets the requirements of AS
12.45.045. He stated that admissibility would also depend on
the relevancy to the case, such as if the relationship had been
several years prior to the incident. He concluded that CSSSHB
5(STA) would direct that a judge does not consider any one
factor as evidence of consent. He offered that there exist
protections such that a dating relationship, a marriage, or the
way someone is dressed are not a defense against rape and would
only be relevant considering the totality of the circumstances.
1:56:58 PM
REPRESENTATIVE EASTMAN referred to Section 5 of the bill and
asked what an expression of a lack of consent would be under
existing law and what it would be should CSSSHB 5(STA) pass.
MR. STINSON answered that an example of the expression of a lack
of consent would be someone saying "no," or "stop," via his/her
words or conduct under both the current and proposed law.
MS. MCFARLAND expressed her agreement with Mr. Stinson's
characterization and suggested that the sponsor may answer to
any additional intent of the proposed language. She stated a
scenario in which an individual says something that indicates
that they do not offer consent would mean that consent was not
given and would be relevant and taken as part of the totality of
the circumstances. She added that, under current law, it would
be required that coercion or threat existed.
1:59:28 PM
REPRESENTATIVE EASTMAN asked whether the use of the word
"expression" would highlight the conduct of the individual
making the expression or that of the defendant.
MS. MCFARLAND suggested that one way to consider the application
of the language would be to consider it as one element of what
the state would be required to prove. She stated that a jury
would be asked to decide whether the state proved two elements,
the first being whether the victim consented to the actions or
conduct. She added that the other element to prove would be the
mental state of the defendant and whether he/she recklessly
disregarded the lack of consent.
MR. STINSON echoed the comments offered by Ms. McFarland and
added that most of the cases involve two individuals who had
been alone and there occurs disagreement whether consent was
given. He added that a jury determines facts of the case, and
the judge determines the law.
REPRESENTATIVE DRUMMOND stated her belief that many potentials
were being discussed and suggested that it would be difficult to
predict what legislation may change behavior. She stated her
belief that nothing seems to be working to reduce the
preponderance of sexual assault in Alaska.
2:03:52 PM
CHAIR CLAMAN referenced the cases of State v. Townsend, State v.
Mayfield, and Inga V. State and asked how the passage of CSSSHB
5(STA) would affect the outcomes of those cases, had they been
heard following the passage of the bill, or the passage of any
affirmative consent law.
MR. STINSON stated that he had a synopsis for the question but
deferred to Ms. McFarland to answer since she had worked
directly on the cases referenced.
MS. MCFARLAND stated that she had been involved in the State v.
Townsend and the Inga V. State cases and stated that those cases
addressed the distinction between sexual penetration and sexual
contact that is achieved by force and coercion. She stated that
sexual contact or penetration that occurs through the use of
force is not necessarily coerced through the use of force.
CHAIR CLAMAN aske Ms. McFarland to describe the facts of the
cases.
2:06:16 PM
MS. MCFARLAND explained that in State v. Townsend, an individual
was at a bar in Juneau and had briefly reached out and grabbed
the shaft of another person's penis. The defendant did not know
the person and had no reason to believe that the person wanted
the contact, and he was subsequently charged with second degree
sexual assault. She stated that this case addressed the lack of
consent through the use of force and coercion through the use of
force. She stated that the indictment was dismissed because the
court found that, although there had been the use of force
through the act of touching, the conduct was not coerced through
the use of force and did not arise to the level of second-degree
sexual assault under statute when looking at the entirety of the
circumstances.
MS. MCFARLAND explained that in the case of Inga v. State, the
defendant was convicted of second-degree sexual assault and
argued that his case, like that of Townsend, did not include the
use of force required to arise to the second-degree assault.
She stated that the court of appeals found that the facts of the
case were different from those in Townsend. She stated that in
the Inga case, the victim was isolated in a location with a man
with whom she had reason to fear, and the sexual contact of
touching the female breast had occurred after the victim
unequivocally refused to have sex with the defendant, and the
defendant's immediate response was to physically assault her.
She stated that the court had found that there was sufficient
coercion through the use of force. She stated that the force
required under current law is that the force required for a
sexual assault must be more than the force inherent in the act
itself.
MS. MCFARLAND explained that the State v. Mayfield case occurred
several years later and considered how the other two cases
applied to an attempted sexual assault. She stated that the
case involved a man in a movie theater who changed seats to sit
closer to a 14-year-old girl and who started to put his fingers
down her pants. The girl believed that he was attempting to
touch her buttocks and she yelled and fled, so no sexual contact
occurred. She stated that the court ruled on whether there was
sufficient evidence that he intended to touch without consent.
She stated that the court ruled that the intent required in such
cases is the existence of the intent to use force would be
necessary and, when taking the totality of the circumstances of
the case, it ruled that there was not sufficient evidence to
uphold the indictment. She added that the defendant Mayfield
pleaded guilty to harassment. She stated her belief that the
passage of CSSSHB 5(STA) would make the analysis of factors more
straightforward. She stated that the question would no longer
be whether the defendant coerced the contact through of the use
of force, but it would be whether the defendant recklessly
disregarded the lack of consent. She stated that the Townsend
and Mayfield cases were both cases in which the defendant did
not go to trial, and she postulated that if the proposed
legislation had been law at the time, the cases would have
survived the motions to dismiss. She stated that there exists
uncertainty in how a jury would find in those cases.
2:11:32 PM
MR. STINSON added that the Mayfield and Townsend cases pertain
to the question of what harassment is and what is sexual
assault. He stated that the court had ruled in the Townsend
case that the conduct may have been tantamount to harassment and
not to sexual assault. He stated that the legislature's
decision to categorize certain behaviors as such was one of
policy. He stated that the Inga case was evidently more
egregious, and that the Mayfield case was less clear because
there had been no crime completed. He stated that probable
cause would likely be found but the question would remain for a
jury to determine whether the defendant would take a crucial
step to complete the crime.
CHAIR CLAMAN asked whether the Office of Public Advocacy had
submitted a fiscal note related to either SB 187 or CSSSHB
5(STA).
MR. STINSON answered that the fiscal note from his office would
be larger than those from the Public Defender Agency and the
Department of Law. He stated that there had been a draft fiscal
note submitted for SB 187 and he predicted that a similar fiscal
note would be submitted for CSSSHB 5(STA). He stated his office
recognized that there was uncertainty on the progression of the
bills and had postponed submitting an indeterminate fiscal note.
He stated that the draft fiscal note would include 6 new
positions, of which one would be an attorney. He added that the
note included 2 defense investigators and 3 law office
assistants. He stated that the preliminary cost estimate was
approximately $2.5 to $2.6 million and would increase the
contract budget by 30 percent or $1.89 million and would cover
costs for leased space. He noted that OPA was competing with
the Public Defender Agency for an increasingly small number of
available attorneys. He stated that the Department of Law had
recently gained 10 new positions, the Public Defender Agency
also added positions recently, and that the OPA had not. He
noted that the hourly contract rate for independent contractors
was outdated, and between $8 and $9 million of the fiscal note
would be to cover increases in those costs. He added that case
caps for contractors had been increased by 30 to 40 percent. He
added that the cases are difficult to both defend and to
prosecute and the potential exists for burnout when attorneys
are overloaded with these types of cases, and that contractors
are reluctant to accept such cases. He stated that it had been
considered to contract out more cases involving homicides to
keep sexual assault cases in-house.
2:15:58 PM
CHAIR CLAMAN asked whether Mr. Stinson anticipated more cases to
be handled by outside counsel or by in-house counsel, should
CSSSHB 5(STA) pass.
MR. STINSON answered that the cases would be split. He added
that the reason the attorney position had been requested in the
fiscal note was that it is sensible to have at least one person
in-house that may specialize in these types of cases, although
the position is expected to be difficult to recruit. He noted
that it was difficult to predict in which jurisdictions such
cases would be prosecuted and that areas such as Nome and
Kotzebue may have high rates of conflict which would require
more outside counsel. He noted that there exits the potential
that more cases in the Anchorage area could be kept in-house.
He mentioned that there still exists a backlog of cases.
REPRESENTATIVE DRUMMOND asked whether a fiscal note would be
drafted for CSSSHB 5(STA) and, should the bill pass, whether OPA
would receive the requested resources.
MR. STINSON answered that OPA would submit a fiscal note and
expressed his hope that the legislature would provide for the
additional resources necessary.
2:18:10 PM
CHAIR CLAMAN noted that there is a proposed change in the law
pertaining to the sexual abuse of a minor, and that conduct that
is not currently illegal would become a crime and asked what
impacts may occur in each agency and how trials are expected to
change.
MS. MCFARLAND explained that CSSSHB 5(STA) would designate a
crime for offenses against 16- and 17-year-olds when there does
not exist a relationship involving a position of authority and
there exists a 10-year age gap, which is not currently a crime.
She stated that those who are between the ages of 13 and 15 and
who are involved with an individual 10 years older, the penalty
for such a crime would be increased. She stated that conduct of
sexual penetration that is not currently considered to be
criminal would become sexual abuse of a minor in the first
degree and conduct of sexual penetration that is currently
illegal under sexual abuse of a minor in the second degree would
then be a crime in the first degree. She explained that the
litigation would not likely substantially change since age is
not a matter that is often in dispute. She stated that
increasing the penalty for an offense would necessarily result
in more work. She explained that a presumptive term for a first
felony offender convicted of sexual abuse of a minor in the
second degree is 5-15 years and, when raised to the first
degree, the presumptive term is increased to 20-30 years. She
stated that first degree cases would be those involving sexual
penetration. She stated that cases involving sexual contact are
more complex, and CSSSHB 5(STA) would impose a 10-year age gap
limit that is different from the 6-year age gap in current law.
She stated that no conforming language is included for the
sexual contact language as it is for sexual penetration. She
stated the range of sentencing for such cases would change from
2-12 years to 5-15 years. She stated that increases in the
seriousness of crimes and increases in sentencing for offenses
will result in more work.
MR. STINSON noted that, should CSSSHB 5(STA) pass, there would
be conduct criminalized that is not currently and he would
anticipate some increase in caseload.
2:22:27 PM
CHAIR CLAMAN asked how long the legal age of consent in Alaska
had been established at the age of 16.
MS. MCFARLAND answered that the age of consent predates the 1978
revision to the criminal statutes. She stated that the statutes
in effect prior to 1978 were rape statutes and had criminalized
sexual penetration with someone who was younger than the age of
16. She postulated that the statute had been enacted at or
around the time of statehood.
CHAIR CLAMAN asked what impacts the sexual abuse of a minor
provisions proposed under CSSSHB 5(STA) would have on child
marriage statutes.
MR. STINSON answered that potential impacts would depend upon
the effective date. He stated his belief that marriage is a
defense in the circumstances if it is a consensual relationship.
He stated that some marriages could become illegal, should
CSSSHB 5(STA) pass, and he offered to conduct additional
research to fully answer the question.
MS. MCFARLAND referred to AS 11.41.445 which denotes what
constitutes an affirmative defense would be, such that the
defendant would be a legal spouse, unless the offense was
committed without consent with coercion of the use of force.
She stated that changes to marriage eligibility ages would
result in a change to who may partake in that defense.
2:25:53 PM
ADJOURNMENT
CHAIR CLAMAN announced that the House Judiciary Standing
Committee would recess to the call of the chair.
2:56:56 PM
CHAIR CLAMAN called the House Judiciary Standing Committee back
to order. Representatives Claman, Drummond, and Kurka (via
teleconference) were present at the call back to order.
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
[Contains discussion of SB 187.]
CHAIR CLAMAN [announced that the final order of business would
be continuation of discussion of 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).]
REPRESENTATIVE KURKA asked whether the definitions of consent
and rape by fraud contained in CSSSHB 5(STA) and SB 187 had been
compared and asked the witnesses to offer their comments. He
asked whether a handout that the Department of Law had
distributed to the committee during previous testimony pertained
the SB 187 or to CSSSHB 5(STA).
CHAIR CLAMAN offered his understanding that the handout that had
been previously distributed to the committee pertained to
language either contained in SB 187 or requested by the
Department of Law to be adopted into SB 187.
2:58:58 PM
MS. MCFARLAND allowed that she did not have the handout
referenced before her. She offered that the Senate Judiciary
Standing Committee had adopted language in SB 187 may have
differed from that which had been proposed by the Department of
Law. She offered to provide analysis of the differences in
language between SB 187 and CSSSHB 5(STA). She explained that
the two proposed bills were similar, and one distinction was
that the definition of consent in CSSSHB 5(STA), on page 6, line
1, and the version in SB 187 were similar but that CSSSHB 5(STA)
does not have the language beginning on line 3 that contains the
definition of the meaning of "freely given." She added that
CSSSHB 5(STA), Section 5, on page 5, line 11 contains language
similar to that proposed under SB 187 but that it differed such
that SB 187 does not have the language regarding the use of
force because SB 187 would create a separate offense for conduct
involving the use of force. She noted that SB 187 does not
include the "manner of dress" language as proposed in CSSSHB
5(STA). She noted that SB 187 does not have the language
proposed in CSSSHB 5(STA), subsection 2 pertaining to consenting
to force or consenting to being made unconscious. She
postulated that SB 187 could allow someone to consent to conduct
that is likely to cause injury or to cause someone to become
unconscious, which would be illegal should CSSSHB 5(STA) pass.
She noted that the "fraudulent professional purpose language" in
both bills was similar. She noted that CSSSHB 5(STA) contains
subsection 3, which is not included in SB 187. She concluded
that the bills take similar but slightly distinctive approaches,
and each case would be unique, and the distinctions would
necessarily be on a case-by-case basis when considering the
potential effects on prosecution, should either bill pass.
MR. STINSON lauded the summation offered by Ms. McFarland and
emphasized that SB 187 contains more of the existing statutory
framework by preserving sexual assault in the first degree in
cases involving the use of force or the implied threat of the
use of force, an unclassified felony. He stated that sexual
assault without consent is a class A felony. He stated that
CSSSHB 5(STA) would provide a presumptive sentence of 20-30
years for a first offense and SB 187 would provide that sexual
conduct without consent would be 5-15 years. He offered that SB
187 has a separate section that sexual assault in the first
degree would include situations when an offender makes a person
become incapacitated prior to sexual penetration. He suggested
that there does not appear to be language proposed that would
prohibit a person from consenting to becoming incapacitated.
3:04:22 PM
CHAIR CLAMAN announced that CSSSHB 5(STA) was held over.
3:05:07 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:05 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Select Committee on Legislative Ethics Appointment - H. Conner Thomas Resume 3.23.2022.pdf |
HJUD 3/30/2022 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-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 |
| HB 5 Supporting Document - Joyful Heart Foundation Letter 3.30.2022.pdf |
HJUD 3/30/2022 1:00:00 PM |