04/27/2022 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB161 | |
| HB5 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 161 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE JUDICIARY STANDING COMMITTEE
April 27, 2022
1:08 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Liz Snyder, Vice Chair
Representative Jonathan Kreiss-Tomkins
Representative David Eastman
Representative Christopher Kurka
MEMBERS ABSENT
Representative Harriet Drummond
Representative Sarah Vance
OTHER LEGISLATORS PRESENT
Senator Bill Wielechowski
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 161(JUD)
"An Act relating to the definition of 'political party'; and
providing for an effective date."
- HEARD & HELD
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: SB 161
SHORT TITLE: POLITICAL PARTY DEFINITION
SPONSOR(s): SENATOR(s) WIELECHOWSKI
01/18/22 (S) READ THE FIRST TIME - REFERRALS
01/18/22 (S) STA, JUD
02/17/22 (S) STA AT 3:30 PM BUTROVICH 205
02/17/22 (S) Heard & Held
02/17/22 (S) MINUTE(STA)
03/01/22 (S) STA AT 3:30 PM BUTROVICH 205
03/01/22 (S) -- MEETING CANCELED --
03/03/22 (S) STA AT 3:30 PM BUTROVICH 205
03/03/22 (S) Moved SB 161 Out of Committee
03/03/22 (S) MINUTE(STA)
03/04/22 (S) STA RPT 4NR 1DP
03/04/22 (S) NR: SHOWER, COSTELLO, REINBOLD, HOLLAND
03/04/22 (S) DP: KAWASAKI
03/14/22 (S) JUD AT 1:30 PM BUTROVICH 205
03/14/22 (S) Heard & Held
03/14/22 (S) MINUTE(JUD)
03/16/22 (S) JUD AT 1:30 PM BUTROVICH 205
03/16/22 (S) Moved CSSB 161(JUD) Out of Committee
03/16/22 (S) MINUTE(JUD)
03/18/22 (S) JUD RPT CS 1AM 3DP SAME TITLE
03/18/22 (S) AM: HOLLAND
03/18/22 (S) DP: MYERS, HUGHES, KIEHL
03/25/22 (S) TRANSMITTED TO (H)
03/25/22 (S) VERSION: CSSB 161(JUD)
04/04/22 (H) READ THE FIRST TIME - REFERRALS
04/04/22 (H) STA, JUD
04/05/22 (H) STA AT 3:00 PM GRUENBERG 120
04/05/22 (H) -- MEETING CANCELED --
04/09/22 (H) STA AT 10:00 AM GRUENBERG 120
04/09/22 (H) Heard & Held
04/09/22 (H) MINUTE(STA)
04/21/22 (H) STA AT 3:00 PM GRUENBERG 120
04/21/22 (H) Moved HCS CSSB 161(STA) Out of
Committee
04/21/22 (H) MINUTE(STA)
04/25/22 (H) STA RPT HCS(STA) 4DP 1NR
04/25/22 (H) DP: TARR, CLAMAN, STORY, KREISS-TOMKINS
04/25/22 (H) NR: EASTMAN
04/27/22 (H) JUD AT 1:00 PM GRUENBERG 120
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
03/30/22 (H) Heard & Held
03/30/22 (H) MINUTE(JUD)
04/13/22 (H) JUD AT 1:00 PM GRUENBERG 120
04/13/22 (H) Heard & Held
04/13/22 (H) MINUTE(JUD)
04/15/22 (H) JUD AT 1:00 PM GRUENBERG 120
04/15/22 (H) Heard & Held
04/15/22 (H) MINUTE(JUD)
04/27/22 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
DAVID DUNSMORE, Staff
Senator Bill Wielechowski
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of Senator Wielechowski, prime
sponsor, presented HCS CSSB 161(STA).
SAMUEL BUELL, Professor of Law
Duke University School of Law
Duke University
Durham, North Carolina
POSITION STATEMENT: Provided testimony during the hearing on
CSSSHB 5(STA).
TROY PAYNE, Ph.D., Director/Assistant Professor
Alaska Justice Information Center
College of Health
University of Alaska, Anchorage
Anchorage, Alaska
POSITION STATEMENT: Offered a PowerPoint presentation on CSSSHB
5(STA), titled "FBI Uniform Crime Report Legacy Rape
Statistics."
BRAD MYRSTOL, Ph.D., Professor
Alaska Justice Information Center
College of Health
University of Alaska, Anchorage
Anchorage, Alaska
POSITION STATEMENT: Offered a PowerPoint presentation on CSSSHB
5(STA), titled "Alaska Sex Offender Recidivism".
ACTION NARRATIVE
1:08:18 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Representatives Kreiss-Tomkins,
Snyder, and Claman were present at the call to order.
Representatives Eastman and Kurka arrived as the meeting was in
progress.
SB 161-POLITICAL PARTY DEFINITION
1:08:50 PM
CHAIR CLAMAN announced that the first order of business would be
CS FOR SENATE BILL NO. 161(JUD), "An Act relating to the
definition of 'political party'; and providing for an effective
date." [Before the committee was HCS CSSB 161(STA).]
1:09:11 PM
DAVID DUNSMORE, Staff, Senator Bill Wielechowski, Alaska State
Legislature, presented HSC CSSB 161(STA) on behalf of Senator
Wielechowski, prime sponsor. He explained that the proposed
legislation would simplify the process for political parties to
gain recognition. He described the current threshold for
official party recognition as "variable," as it is based on the
voter turnout from the most recent general election. He
explained that the proposed legislation would change the
threshold to an even 5,000 voters, and after every centennial
census the number of voters would be adjusted based on
population changes and then rounded to the nearest 500. Because
the current threshold is based on voter turnout, he said, the
threshold can fluctuate wildly after a record voter turnout.
This creates a paradoxical problem because midterm election
turnout is lower; thus, political parties would have to meet a
higher threshold to be on the ballot. He stated that since the
passage of Ballot Measure 2 [in 2020] political parties would
only have automatic rights in the election for the office of the
U.S. presidency. He stated that having official party status
guarantees the ability to purchase two pages in the official
election pamphlet, nominate election workers, and have poll
watchers.
1:11:58 PM
VICE CHAIR SNYDER, referring to the sponsor statement [copy
included in the committee packet], addressed the sentence, which
read as follows [original punctuation provided]: "This threshold
can vary wildly from election to election and after the 2020
election it increased by 27% because of record voter turnout."
She requested clarification on the use of the word "it" in the
statement.
1:12:29 PM
MR. DUNSMORE responded that "it" refers to the threshold, which
is the total number of registered voters a party must have to
retain official status. He explained that the number increased
because the voter turnout in 2020 had been 27 percent higher
than in 2018.
1:12:58 PM
MR. DUNSMORE, in response to a follow-up question, confirmed
that the number of votes required to reach the 3 percent
threshold increased by 27 percent in the 2020 election. He
explained that prior to Ballot Measure 2 there had been 2 ways
to achieve party status. A party could have registered voters
which equaled 3 percent of the number of voters, or, in the
previous election, the party's top ticket candidate would need
to have received 3 percent of the vote. He said that Ballot
Measure 2 changed the process, and now the only way to meet the
threshold would be through voter registration.
1:13:54 PM
CHAIR CLAMAN referenced the amendment adopted to the proposed
legislation by the House State Affairs Standing Committee in its
[04/21/2022] meeting, which deleted the language "represents a
political program". He requested Mr. Dunsmore speak to the
deletion of the language, and he questioned whether the deletion
should be undone.
1:14:28 PM
MR. DUNSMORE responded that after the proposed legislation moved
out of the previous committee of referral, Legislative Legal
Services sent a memorandum pointing out that the language change
could be tied to the operation of the statute in regard to
appointments to vacancies in the legislature. He clarified that
the change was thought to be stylistic, and the intention of the
amendment was not to change the statute in this way. He advised
the committee that reverting back to the language passed out of
the Senate may be wise.
1:16:07 PM`
REPRESENTATIVE KREISS-TOMKINS suggested that maintaining the
language in the legislation would maintain parallelism in the
statutes.
MR. DUNSMORE responded in the affirmative.
1:16:35 PM
VICE CHAIR SNYDER expressed the understanding that, in terms of
the proposed legislation, "political party" means an organized
group of voters with at least 5,000 registered voters. She
pointed out that a political party would not exist until 5,000
voters have been registered, and she questioned how voters would
register in a political party which does not exist.
MR. DUNSMORE responded that this is provided elsewhere in
statute, and he would follow up after the meeting with this
information. He said to achieve official status the party's
bylaws would need to be submitted to the Division of Elections,
and then the party would be added to the voter registration
form. He explained that every month the division updates the
voter list, and when the number hits the threshold, the party
would be qualified for the election.
1:18:01 PM
CHAIR CLAMAN opened public testimony on SB 161. After
ascertaining that there was no one who wished to testify, he
closed public testimony.
1:18:35 PM
The committee took an at-ease from 1:18 p.m. to 1:20 p.m.
[SB 161 was held over.]
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
[Contains discussion of SB 187.]
1:20:46 PM
CHAIR CLAMAN announced that the final order of business would be
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).]
1:22:25 PM
SAMUEL BUELL, Professor of Law, Duke University, thanked the
committee for the discussion on reforming the definition of
sexual assault and related offenses. He commended the
committee's efforts to shift from the historical definition of
rape, which indicates force, to a more modern concept of
consent. He shared his biography, highlighting that he is a
member of the American Law Institute (ALI) and serves as an
appointed advisor in the project which is revising the
definitions of sexual assault and related offenses in the Model
Penal Code (MPC). He said, "My remarks today are based on my
knowledge and views and do not reflect necessarily the positions
or opinions of the ALI as a body or the project's reporters."
MR. BUELL identified the two main issues in the modern
definition of rape as consent and mens rea, or mental state. He
acknowledged that ALI's debates on these topics have been
contentious for many years. Addressing the topic of consent, he
expressed the understanding that the basic wrong in sexual
assault would be to compel another to submit to sexual
penetration or contact without consent. He explained that
because "consent" is not an all-purpose concept under one
definition of the law, it must be defined within a context. He
stated that consent, at its core, is a question of "mental
state" itself. In other words, he said, the question would be,
"Was contact or penetration wanted or unwanted?" He conveyed
that ALI has recognized punishment cannot be based on an
unobservable mental process of one individual, and consent is
ultimately in the mind and must be expressed in some fashion to
be known. He stated that ALI has settled on a hybrid approach,
making clear "non-consent" means no consent, or "no means no."
He pointed out that verbally expressed consent is not required,
as it could be acted out or performed. He said that the current
MPC draft definition of consent "means a person's willingness to
engage in a specific act of sexual penetration, oral sex, or
sexual contact, all of which are defined terms." He continued
that neither verbal nor physical resistance are required to
prove lack of consent, but it may be inferred by behavior in the
context of the circumstances. He said this makes the question
of consent a variable and fact-based question.
1:26:30 PM
MR. BUELL explained that the language in the definition of
consent had been a compromise at ALI. Some had wanted a verbal-
affirmative requirement, while others argued this would require
changes in existing practices and put ALI too far ahead of the
social curve in the law reform process. He expressed the view
that the current ALI definition of consent accommodates both the
rights of victims and accused persons and is realistic in
respect to the current national attitude of sexual mores. He
expressed the opinion that CSSSHB 5(STA) appears to be heading
in a similar direction; however, he suggested the language
should be simplified to avoid confusion in the judicial process.
He expressed the opinion that the definition of "freely" in
Section 6 could raise questions. He compared this to the use of
"free will" in [SB 187]. He described this usage as "fraught."
He voiced the opinion that the language in Section 5 of CSSSHB
5(STA) is problematic because there is an attempt to specify the
conditions when consent is lacking. He expressed confusion
concerning subsection (c)(3) in regard to the idea that an
offender's actions could cause a victim's lack of resistance.
He expressed further confusion concerning what "lack of
resistance" is meant to cover. He reasoned that the drafting
process is difficult, but the law must make judgements about the
different pressures which would render consent invalid. He
referenced the general opinion that many forms of sex in
situations of lesser-power balances are outside of criminal law,
and this is the problem with the language "freely given" or
"free will" in the legislation. He said the language tends to
"beg the question of what level of free decision making ...
specifies the line between legally operative consent and failure
of consent."
MR. BUELL, concerning mens rea, pointed out that Alaska's MPC
style rules require a finding of "recklessness" in order to
convict for lack of consent. He acknowledged that this is
consistent with ALI's definition. He advised that using the
term "recklessly" within the crime definitions themselves may be
better than relying on the Alaska statutory provision on mens
rea. The reasoning is because Alaska's statutory provision on
mens rea requires a mental state of "knowingly" for any conduct
elements and "recklessness" for any circumstances or results.
The current language in the proposed legislation could lead to
debates about which parts of the sexual assault definitions are
part of the conduct element of the offenses, as opposed to
aspects of a circumstance or result. He suggested that adding
mens rea within the definitions themselves would be more
specific, avoid confusion, and avoid possible mitigation.
1:30:23 PM
MR. BUELL stressed the importance of understanding that using
"recklessness" would indicate a highly culpable knowledge state.
In other words, the actor must have contemplated whether consent
was lacking, perceived a risk that it was lacking, and decided
to proceed, nonetheless. He stated that there has been a great
deal of discussion about using "recklessness" as a mens rea, as
it could lead to convictions of mistaken actors, for example.
He stated that MPC does not use the definition "recklessness" in
this way.
1:31:26 PM
MR. BUELL, in addressing the first of two additional drafting
concerns, said that ALI has debated on grading and punishment
with respect to excessive incarceration. He stated that ALI's
draft is different than the proposed legislation because the
proposed legislation treats "penetration without consent" as a
first-degree felony, even in the absence of the use of force.
He suggested that the definition should move away from including
"use of force" because historically this has made rape
problematic for victims. He stated that "force" as an
aggravating factor could be retained in the definitions, but he
suggested making grading distinctions between nonconsensual sex
and nonconsensual sex through the use of physical force. He
stated that the ALI draft is available online and could be seen
as an example of grading on different levels of sexual assault.
1:32:38 PM
MR. BUELL, as a last point, expressed confusion in Section
1(a)(5) concerning the language "artifice, pretense, or
concealment". He expressed confusion how cases of rape by fraud
would be covered under this language. He explained that
determining the types of deceptions which would render consent
invalid is a tricky issue. Deception comes in many different
forms and contexts, and many of those have not been treated as a
basis for imprisonment.
1:33:49 PM
VICE CHAIR SNYDER, for clarification, requested that Mr. Buell
speak again on the topic of recklessness.
MR. BUELL stated that the definitions of the various mental
states are a part of the Alaska Criminal Code and were modeled
after MPC. He referenced the definition of "recklessly" in AS
11.81.900(a), which read as follows [original punctuation
provided]:
(3) a person acts "recklessly" with respect to a
result or to a circumstance described by a provision
of law defining an offense when the person is aware of
and consciously disregards a substantial and
unjustifiable risk that the result will occur or that
the circumstance exists; the risk must be of such a
nature and degree that disregard of it constitutes a
gross deviation from the standard of conduct that a
reasonable person would observe in the situation; a
person who is unaware of a risk of which the person
would have been aware had that person not been
intoxicated acts recklessly with respect to that risk;
MR. BUELL stated that to understand the meaning of the statute,
the corresponding meaning of "results" and "circumstances" would
need to be understood within the elements of crimes. He
explained that, for example, a "result" would be the causation
of death in a homicide statute. This is a separate element
because it is something which happened as a consequence of the
defendant's physical conduct. Using the term "circumstance" to
describe an element of a crime would mean something about the
world, separate from the defendant's actions or thoughts. He
stated that a simple example of "circumstance" would be the age
of a victim, in a case in which age is relevant. For the
definition of mens rea, or mental state, a defendant would have
to be "reckless" as a result of a "circumstance". For example,
there is a criminal penalty for selling cigarettes to an
underage person, so the defendant must be "reckless" as to the
fact that the victim was underage. He said, in other words, the
defendant thought about it and sold the cigarettes anyway.
1:37:13 PM
MR. BUELL explained that the definition of "recklessness" uses
the language "unjustifiable risk" because some situations would
require that a risk be taken. He cited the example of
recklessly driving to the hospital because there is a person
bleeding to death in the car, however; he expressed the opinion
that in the context of sexual offenses it is unclear whether the
word "unjustifiable" would mean anything. He explained that the
focus is not on the justifiability of the risk, but whether the
actor was aware of the risk. He described this as the
"knowledge state." He continued that the question is not
whether the actor thought about it, but whether the actor was
aware of the risk and decided to proceed anyway.
1:38:30 PM
CHAIR CLAMAN pointed out the provision in [AS 11.81.900] that
addresses mental states specific to sexual assault in the first
degree. He said this provision refers to ["knowingly"] as to
the conduct and ["recklessly"] as to the circumstance. In the
context of a sexual assault, he questioned whether the meaning
would be "knowing" as to the conduct of sexual penetration and
"reckless" as to the circumstance of lack of consent.
1:39:03 PM
MR. BUELL responded in the affirmative. He elaborated that the
other side would argue that nobody should go to prison unless it
is practically certain consent was lacking, with "knowledge"
being the "recklessness" standard. He continued that this
definition would make the bar extremely high for conviction
because there must be a burden of proof beyond a reasonable
doubt. For example, an acquittal could be produced by raising a
doubt about whether a person was, or was not, sure consent was
lacking.
1:39:48 PM
CHAIR CLAMAN, referencing Section 6 of the proposed legislation,
pointed out the language "freely given, reversible agreement"
used in the definition of consent. He questioned whether MPC
has taken a different approach to the definition of consent. He
requested feedback on the pros and cons of the approach taken in
CSSSHB 5(STA).
MR. BUELL responded that this is difficult and "the absolute nub
of this law reform problem." He said that ALI has spent hours
debating, and multiple drafts have been written. He expressed
the opinion that ALI chose not to use the terms "freely" or
"free will" because it begs the question of what type of freedom
of thought one needs to be genuinely consenting. He stated that
ALI uses "willingness" in the definition. This captures more of
a concept of something which is wanted, setting a higher bar for
consent, rather than something which is simply agreed to. He
suggested that this would beg the question less. He stated that
using "freely" and "free will" in the definition would raise the
question, "What is freedom?" He stated that there is not a
perfect solution, and there will be debates about the use of
"willingness" as well.
1:42:56 PM
CHAIR CLAMAN, with a follow up, questioned whether the use of
"willingness" within the definition of consent is more victim
friendly than the proposed legislation's use of "freely given".
1:43:31 PM
MR. BUELL expressed the opinion that this would be his instinct
because the idea of "freely given" depends on the circumstances,
whereas "willingness" would go to the ultimate question of the
internal mental state of the victim, and whether the victim
actually wanted the sexual contact. He explained that the model
is new for ALI, and how it will play out in court cases is
unknown. Concerning the use of "freely" and "free will" in the
definition, he said, the pressures which would make a person's
decisions not free are unknown. He provided the example of a
woman in a bad domestic situation, with a huge economic
disparity in the relationship. He suggested that because she is
completely dependent on her partner, she may not be able to
withhold sex. He questioned whether that would be "freely
given" consent. He expressed the opinion that these cases are
not generally prosecuted, and he questioned whether the law
would want to get involved. He expressed the realization that
he is pointing out issues instead of resolving issues. He
stressed the importance and difficulty of these issues,
concluding that legislators must work to get the best language
possible.
1:47:20 PM
MR. BUELL, in response to a follow-up question, voiced the
opinion that the use of "willingness" would be more victim
friendly than the use of "freely given" in [SB 187]. He stated
that this had been the intent behind the language choice in the
ALI process. He said that the current MPC definition is similar
to the language in CSSSHB 5(STA), which further specifies
consent can be expressed and inferred from the circumstances.
He stated this has been an important issue for ALI, as sexual
contact and penetration can occur through mutual physical action
and be fully consensual without being discussed. He said that
care had been taken [in ALI] not to criminalize this.
1:48:49 PM
REPRESENTATIVE KREISS-TOMKINS requested an analysis of "rape by
fraud" as it appears in the proposed legislation.
MR. BUELL responded that Section 1(a)(5) of the proposed bill
addresses sexual assault by impersonation. He stated that an
example of this would be identical twins, where one of the twins
sexually deceives the other's partner, and once discovered, it
is treated as rape. He identified that the problem would be
writing a definition distinguishing this from someone who is an
actor and tricks people into having sex. He stated that these
cases are close to hedge-fund lying, which are morally
problematic, but not treated as criminal because of the fear of
where to draw the line. He reasoned this could become the case
where "if you don't tell 100 percent of the truth in all
relationships, you are engaging in sexual assault." He
expressed difficulty in understanding the phrasing in [Section
1(a)(5)].
1:52:29 PM
REPRESENTATIVE KREISS-TOMKINS, with a follow-up question, asked
whether there is language from other states which speak to these
situations.
MR. BUELL responded that other states do use this language, but
he has not done research on the topic. He stated that there is
academic literature with clear examples which can be researched.
He expressed confusion about the intent of the language
concerning deception in the proposed legislation.
1:53:52 PM
CHAIR CLAMAN questioned whether the impersonation topic is
addressed in the current version of MPC. If so, he questioned
where the section could be found.
MR. BUELL responded in the affirmative, and he indicated that he
would do a quick search for the section number.
1:54:22 PM
REPRESENTATIVE KREISS-TOMKINS expressed confusion and concern
about the extent to which the language [in the proposed
legislation] is tailored to some of the situations which have
been described. He expressed the understanding that these
situations need to be addressed; nonetheless, the tightness in
statutory language caught his attention.
1:55:27 PM
MR. BUELL responded that Section 213.5(1)(b)(i) of MPC covers
the category of fraud cases which traditionally involve fake
medical procedure scams. He stated that Section 213.5(1)(b)(ii)
of MPC addresses the situation when a person believes falsely
that an actor is someone who is personally known, and the
deception causes this person to engage [in sex]. He said the
current MPC draft is limited to a literal impersonation of
someone who is known to the victim. He said that the category
is narrow because of the fear it could be opened to other kinds
of deception.
1:57:44 PM
CHAIR CLAMAN, in reference to the section in MPC under
discussion, stated that there have been comments which express
the language is both overinclusive and underinclusive. He
stated that a certain degree of specificity to a certain conduct
almost excludes another conduct which otherwise might be
criminal.
MR. BUELL responded that he would need an example before
speaking to this.
1:58:36 PM
MR. BUELL, before responding to Vice Chair Snyder, questioned
whether Alaska had adopted the original MPC sex offense
provisions completed in the early 1960s.
1:59:26 PM
CHAIR CLAMAN responded that Alaska had made a major revision to
its penal code in the late 1970s. He stated that this largely
followed modern MPC, and since that time more changes have been
made.
2:00:18 PM
MR. BUELL responded to Vice Chair Snyder's request for an
explanation of the MPC updating process. He described MPC as
one of ALI's most influential products, as it has helped clarify
criminal law in the country. He said that the original drafters
of MPC had been a small group of "older, white, male law
professors and not a very representative group," and the rape
law had not considered victims' rights or the sociological point
of view; the provisions concerned force, consent, and had an
exception for spousal rape.
MR. BUELL stated that about 10 years ago ALI appointed legal
writers and advisors to start the revision project. He
described the work as "painstaking" with extensive drafts. The
first draft took two years, with each revision creating more
discussion. As the number of meetings increased, he said, more
people became aware of the project, and the circle expanded to
include judges, prosecutors, defense attorneys, law professors,
victims' rights organizations, and more. Deep concerns were
raised by defense lawyers, academics, judges, and others about
the law going too far and allowing wrong convictions, so the
process resulted in only a moderate change. Instead of finding
ways to reduce incarceration, he said opinions had been voiced
that ALI's work on the project would put more people in prison.
He continued that many victim advocacy groups pushed back with
the opinion that rape is the one crime most underenforced by the
criminal justice system. He stated that ALI is not an advocacy
organization, so the current draft is a balance of interest. He
added that ALI has been successful at being a collective view of
the legal profession, but the project is a contentious issue.
2:06:33 PM
MR. BUELL, in response to Representative Kreiss-Tomkins, stated
that the final draft will be in front of ALI's annual meeting
for a vote in the upcoming weeks; however, the draft does not
need to be a finished product for states to utilize the
information, as it does not have the force of law. He stated
that ALI makes its products available but does not push for
legislatures to use them.
2:09:59 PM
CHAIR CLAMAN expressed the understanding that some states have
incorporated changes to their sexual assault laws. He observed
that ALI's approach has not been adopted completely, but also it
has not been completely rejected.
MR. BUELL responded in agreement. He stated that the code is a
model, and ALI does not expect it to be adopted across the
board. There is the expectation that issues will be
controversial, and states will go in a variety of ways.
2:11:32 PM
VICE CHAIR SNYDER, concerning the sexual assault section of the
model, questioned whether ALI's motivation for modifications had
been the result of any political, cultural, or social
challenges.
MR. BUELL responded that the question is difficult, and he does
not have the data for an answer. He stated that prosecutors can
often have an influential voice in criminal law reform debates,
and they recommend the law not be narrowed, as convictions would
be more difficult. He stated that there are proposals for even
broader definitions; however, the definitions in some
jurisdictions could become overbroad, as defense lawyers have
argued that definitions need to be specific in order for
defendants to have a fair trial. He expressed the opinion that
who gets heard in the process may depend on politics.
2:16:07 PM
CHAIR CLAMAN referenced the differences in CSSSHB 5(STA) and SB
187 in respect to the use of "force" in the sexual assault
[definitions]. He questioned the approach other states may have
taken.
MR. BUELL responded that without the data the question is
difficult to answer. He expressed the opinion that when states
use "force" defined in a significant way for a nonconsensual sex
offense, the offense would be graded at a higher level. He
stated that the definition of "force" was not an element in old
rape law. The absence of this definition had created the
question whether one body putting pressure on another body in
sexual penetration should be considered as force. He continued
that, if so, force would always be present; however, the
definition he had been referring to would include the threat of
violence, possibly with a weapon and injury to the victim. He
noted that this is not to minimize the basic offense, but having
the threat of a weapon or an injury to the victim would be a
"substantially aggravating" factor. He stated that there are
distinctions to be made, as each jurisdiction has its own level
of penalties, and its criminal code should be consistent with
the levels of penalties imposed for different crimes.
2:19:14 PM
CHAIR CLAMAN stated that the next testifier had been invited
back [after the hearing on 4/13/2022] to discuss statistics in
relation to the pre-2013 definition of rape in Alaska. He
[reminded the committee] that the question had concerned the
change in rape statistics over time in Alaska.
2:20:47 PM
TROY PAYNE, Ph.D., Director/Assistant Professor, Alaska Justice
Information Center, College of Health, University of Alaska,
Anchorage, presented a PowerPoint on CSSSHB 5(STA), titled "FBI
Uniform Crime Report Legacy Rape Statistics" [hard copy included
in the committee packet]. He directed attention to slide 2 and
stated that the definition of rape in the FBI's Uniform Crime
Reporting Program (UCR) changed in 2013 because advocates in
academics had said UCR's definition did not encompass a wide
variety of acts which are considered as sexual assault. He
stated that his discussion would not address the definition
change but the overall trends in Alaska. He displayed slide 3
which charted the rape rate since 1979 in the state using the
legacy definition. Because both definitions had been used by
UCR, he said there is an overlap [from 2013 to 2016]. In every
year with readily accessible data, he pointed out that Alaska
rape rates are far higher than the national average. He
mentioned that these are the same patterns seen in the previous
presentation.
2:23:55 PM
DR. PAYNE, moving to slide 4, directed attention to the handout
[copy included in the committee packet] on the previous changes
in [AS 12.55.125]. Regardless of the changes in the statute, he
said, the chart shows little difference in aggregate rape rates
over time, as the pattern for rates oscillate around the average
across the entire time series. He noted the changes in relation
to the criminal penalties. He reminded the committee that a
variety of details of criminal sentencing have not been
considered.
2:26:10 PM
REPRESENTATIVE KREISS-TOMKINS questioned whether an increase in
sentencing would reduce the rate of rape crimes and whether it
is fair to say that the rate of rape has not changed in Alaska.
DR. PAYNE responded that there have been dramatic changes in
sentence lengths over time, but there have been no changes in
offense rates over time.
2:27:14 PM
DR. PAYNE, in response to Representative Eastman, acknowledged
an error in the chart and verified that there had been no change
in maximum sentencing from 2003 to 2006.
CHAIR CLAMAN commented that the change was in the minimum, as
the minimum had gone up in those years.
2:28:18 PM
REPRESENTATIVE KREISS-TOMKINS, concerning recidivism, questioned
whether there is data on perpetrators reoffending after release.
CHAIR CLAMAN interjected that the next presenter would possibly
be able to address the question.
DR. PAYNE commented that decades of research has shown that
increasing criminal sanctions for offenses does not affect
offender behavior. He expressed the opinion that it is possible
to deter offenders through other methods, but increasing prison
time is unlikely to change behaviors.
2:31:25 PM
BRAD MYRSTOL, Ph.D., Professor, Alaska Justice Information
Center, College of Health, University of Alaska, Anchorage,
offered a PowerPoint presentation on CSSSHB 5(STA), titled
"Alaska Sex Offender Recidivism" [hard copy included in the
committee packet]. He shared that the presentation would
include highlights from his previously published report, "Alaska
Sex Offender Recidivism and Case Processing Study: Final Report"
[included in the committee packet]. He directed the attention
to slide 2 which overviewed the data and methods used. Moving
to slide 3, he explained that the two goals of the study had
been to update and expand the knowledge of sex offender
recidivism in Alaska. The goals had been accomplished with the
following three objectives: provide specific estimates of Alaska
sex offender recidivism, expand the post incarceration follow-up
period from two years to seven years in order to better
understand desistance, and examine potential differences in the
frequency and intensity of recidivism for post-incarcerated sex
offenders.
DR. MYRSTOL stated that [the study of] recidivism in the state
only looks at two or three years following a perpetrator's
release. He expressed interest in taking a longer view in
analyzing recidivism and understanding desistance. He explained
that desistance is a term in criminology for the patterns of
declining rates of criminal participation following release from
prison. To understand heterogeneity in the patterns of
reoffending on release from prison, he indicated that the study
used a group-based trajectory technique to examine the potential
preferences in sex offender recidivism. He expressed the
assumption that in most discussions recidivists are considered
the same and measured on whether or not they reoffend; however,
deeper questions have not been asked. In example, he posed the
question, "Did recidivists reoffend at higher or lower rates
compared to others?"
2:35:58 PM
DR. MYRSTOL, moving to slide 4, stated that the Alaska
Department of Corrections (DOC) supplied the data which
identified the 406 sex offenders used in the study. The
individuals in the study had to have been convicted of one or
more qualifiable sex offenses, incarcerated in a DOC facility,
and released from incarceration between January 1, 2006, and
December 31, 2008. He stated that the Department of Public
Safety provided a detailed criminal history of the 406
offenders. He stated that rearrest and conviction for a new
offense are the two important outcome measures of the analysis.
2:38:21 PM
DR. MYRSTOL, responding to Vice Chair Snyder, stated that the
study did not use a "sample" of sex offenders, rather it used a
"population" of released persons who met the inclusion criteria.
Addressing the graph on sex offender recidivism on slide 6, he
explained that the horizontal axis is time following release
from prison beginning at day zero going to seven years, and the
vertical axis is the cumulative percentage of sex offenders who
were released from an Alaska prison and reoffended at each point
of time. He pointed out that because the data is cumulative,
the graph will always go up or flat, but never decrease. He
added that once a person is counted as a recidivist using this
measure, he/she is always in this pool.
2:40:55 PM
DR. MYRSTOL, explaining the data depicted in the graph, said the
top bold line depicts the percentage of sex offenders who were
released from prison and rearrested for any offense. He stated
that the graph culminates at seven years showing there were a
total of 55.4 percent of sex offenders rearrested for any
offense. He compared this percentage with the 40.4 percent
recidivism which had resulted after three years. He pointed out
that the long-dashed line represents the number of sex offenders
released from prison and convicted of any new offense. He
explained that conviction is a lagged indicator because it takes
time for cases to reach resolution, and this would explain why
the conviction rate is less than the rearrest rate. Continuing,
he explained that the small-dashed line near the vertical axis
depicts the percentage of sex offenders who were released from
prison and rearrested for a qualifying sex offense.
2:44:00 PM
VICE CHAIR SNYDER observed that the graph depicts a "fairly
flat" line for the rearrest for sex offenses. She suggested
that something is slowing the cumulative rate.
DR. MYRSTOL indicated that slide 7 would address the comment in
full. He stated that sex offenders, like other offenders,
engage in a wide variety of criminal conduct. He pointed out
that rearrests could cover anything from motor vehicle offenses
to felony property crimes.
2:46:33 PM
DR. MYRSTOL pointed out that recidivism is rarely for the same
crime, which is opposed to the assumption that individuals would
recommit the same crime. He addressed the straightness of the
line representing the rearrests of sex offenders for sex
offenses. He pointed out the same is not true for rearrests for
any crime, as the slope of this line is steep in the early days
following release, and then it flattens. He suggested this
would mean the first year following release from prison is the
biggest at-risk period for recidivism for any crime, and then
the relative risk for recidivism declines over time.
2:49:42 PM
DR. MYRSTOL, moving to slide 7, stated the graph puts into
context sex offenders in Alaska. The graph compares Alaska's
recidivism rates with aggregated data from 30 other states. To
help understand the likelihood of recidivism for different
offenses, he explained that each line on the graph depicts
different classes of offenders. He pointed out that the graph
shows the risk of recidivism for sex offenders is substantially
lower than people who were convicted of other offenses. He
noted that, not included in the presentation, are results from a
different analysis which shows the rate of recidivism for sex
offenders in Alaska is less than offenders who had misdemeanor
driving under the influence charges (DUIs), felony DUIs, and
domestic violence charges. He stated that the data makes it
clear the likelihood of sex offender recidivism following
release from prison is lower than other offenders; however, in
general, sex offender recidivism in Alaska is not low.
2:53:11 PM
REPRESENTATIVE EASTMAN suggested that sex offenders are harder
to convict than other criminals, and this would explain sex
offenders' lower recidivism rates.
DR. MYRSTOL clarified that the data depicted reflects rearrests,
not convictions. He stated that there could be differences in
investigatory practices, but this depicts the earliest point in
the criminal-legal process, and other case factors become mute.
2:54:33 PM
DR. MYRSTOL, turning to slide 8, addressed homogeneity of sex
offenders. He stated that analysis shows there is diversity, as
depicted on the graph in the four distinctive groups. He
highlighted group 4, which is depicted by the bold line arching
across the graph. The line shows that post release, through
year 5, group 4 had an accelerated rate of reoffending. He
observed that the curve turns downward as it approaches year 7
on the graph, but the number of reoffenders is still much higher
than the other groups. He pointed out that the dynamic process
illustrates change over time, exemplified by group 4. In other
words, he said, "There is a small group of people doing lots of
stuff." He pointed out that this activity accelerates by year
5, and then declines. He compared this to the relative
stability in the other groups. For context, he stated that
group 4, which represents 6.7 percent of all the sex-offender
recidivist, committed 17 percent of all the new arrests. He
explained that the members in group 4 had been reincarcerated
most of the study period and only available to reoffend 15
percent of the total time; however, they still composed 17
percent of all rearrests. He reiterated that group 4 comprised
only around 7 percent of the reoffender population. He said,
"For me, this was a bit of a revelation." He said this had been
his initial hypothesis because it is a criminological fact that
there tends to be one small group of offenders who commit an
extraordinarily disproportionate amount of crime. He added that
released sex offenders are not unique in this regard; however,
prior to this work, he said he had not seen this type of
pattern.
3:00:08 PM
DR. MYRSTOL, in response to Chair Claman, stated that the groups
are described in generalities. In terms of the research, great
pains were taken to not identify individuals. He referred to
page 21 of the study report for the demographics in each of the
groups.
REPRESENTATIVE KREISS-TOMKINS commented that the ratio of 80
percent of things being attributed to 20 percent of the minority
can be applied [across the board].
3:03:18 PM
REPRESENTATIVE EASTMAN pointed out that the study differentiated
between high-risk rates and low-risk rates for recidivism. He
questioned whether the group with the higher-risk rates could
receive stiffer penalties.
DR. MYRSTOL, providing the caveat that he is not a criminal
attorney, expressed the understanding that a criminal sanction
would be in relation to the offense, not the likelihood of
reoffence. He expressed the hope that the data presented would
inform practice within DOC rather than larger policies in
criminal law. Based on the risk-assessment tools and framework
used, he expressed the belief that DOC is aware of recidivism
risks. He stated that his aim has been to help policy makers be
aware of the features of recidivism. He stated he has no
recommendations in terms of a law change but stressed that not
all recidivists are the same.
CHAIR CLAMAN thanked the presenter.
[HB 5 was held over.]
3:07:10 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:07 p.m.