Legislature(2005 - 2006)CAPITOL 120

02/15/2006 01:00 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 276 BUSINESS LICENSE TOBACCO ENDORSEMENT TELECONFERENCED
<Bill Hearing Canceled>
+= SB 20 OFFENSES AGAINST UNBORN CHILDREN TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 353 SENTENCING FOR SEXUAL OFFENSES
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                       February 15, 2006                                                                                        
                           1:13 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson                                                                                                     
Representative John Coghill                                                                                                     
Representative Pete Kott                                                                                                        
Representative Peggy Wilson                                                                                                     
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
OTHER LEGISLATORS PRESENT                                                                                                     
                                                                                                                                
Representative Bob Lynn                                                                                                         
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CS FOR SENATE BILL NO. 20(JUD)                                                                                                  
"An Act relating to offenses against unborn children."                                                                          
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
HOUSE BILL NO. 353                                                                                                              
"An Act relating to sentences for sexual offenses."                                                                             
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
HOUSE BILL NO. 276                                                                                                              
"An  Act relating  to business  license endorsements  for tobacco                                                               
products,  to  holders  of   business  license  endorsements  for                                                               
tobacco products, and  to the employees and agents  of holders of                                                               
business license endorsements for tobacco products."                                                                            
                                                                                                                                
     - BILL HEARING CANCELED                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  20                                                                                                                  
SHORT TITLE: OFFENSES AGAINST UNBORN CHILDREN                                                                                   
SPONSOR(S): SENATOR(S) DYSON                                                                                                    
                                                                                                                                
01/11/05       (S)       PREFILE RELEASED 12/30/04                                                                              
01/11/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/11/05       (S)       STA, JUD                                                                                               
03/01/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
03/01/05       (S)       Heard & Held                                                                                           
03/01/05       (S)       MINUTE(STA)                                                                                            
03/15/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
03/15/05       (S)       Moved CSSB  20(STA) Out of Committee                                                                   
03/15/05       (S)       MINUTE(STA)                                                                                            
03/16/05       (S)       STA RPT CS  1NR 4AM  SAME TITLE                                                                        
03/16/05       (S)       AM: THERRIAULT, ELTON, WAGONER, HUGGINS                                                                
03/16/05       (S)       NR: DAVIS                                                                                              
03/16/05       (S)       FIN REFERRAL ADDED AFTER JUD                                                                           
03/31/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/31/05       (S)       Scheduled But Not Heard                                                                                
04/04/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/04/05       (S)       Heard & Held                                                                                           
04/04/05       (S)       MINUTE(JUD)                                                                                            
04/12/05       (H)       JUD AT 8:00 AM CAPITOL 120                                                                             
04/12/05       (S)       Heard & Held                                                                                           
04/12/05       (S)       MINUTE(JUD)                                                                                            
04/19/05       (S)       JUD RPT CS FORTHCOMING 3DP 1NR                                                                         
04/19/05       (S)       DP: SEEKINS, THERRIAULT, HUGGINS                                                                       
04/19/05       (S)       NR: GUESS                                                                                              
04/19/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/19/05       (S)       Moved CSSB 20(JUD) Out of Committee                                                                    
04/19/05       (S)       MINUTE(JUD)                                                                                            
04/20/05       (S)       RETURNED TO JUD COMMITTEE                                                                              
04/21/05       (S)       JUD CS RECEIVED  SAME TITLE                                                                            
04/26/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/26/05       (S)       Moved CSSB 20(2nd JUD) Out of Committee                                                                
04/26/05       (S)       MINUTE(JUD)                                                                                            
04/27/05       (S)       JUD RPT CS(2D JUD) 3DP 2AM  SAME TITLE                                                                 
04/27/05       (S)       DP: SEEKINS, THERRIAULT, HUGGINS                                                                       
04/27/05       (S)       AM: FRENCH, GUESS                                                                                      
04/27/05       (S)       FIN REFERRAL ADDED AFTER JUD                                                                           
04/28/05       (S)       FIN AT 9:00 AM SENATE FINANCE 532                                                                      
04/28/05       (S)       Moved CSSB 20(JUD) Out of Committee                                                                    
04/28/05       (S)       MINUTE(FIN)                                                                                            
04/29/05       (S)       FIN RPT CS(JUD)  2DP 3NR                                                                               
04/29/05       (S)       DP: GREEN, DYSON                                                                                       
04/29/05       (S)       NR: WILKEN, HOFFMAN, OLSON                                                                             
05/01/05       (S)       JUD CS ADOPTED Y11 N5 E3 A1                                                                            
05/03/05       (S)       TRANSMITTED TO (H)                                                                                     
05/03/05       (S)       VERSION: CSSB 20(JUD)                                                                                  
05/04/05       (H)       READ THE FIRST TIME - REFERRALS                                                                        
05/04/05       (H)       JUD, FIN                                                                                               
05/05/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
05/05/05       (H)       Scheduled But Not Heard                                                                                
05/07/05       (H)       JUD AT 3:30 PM CAPITOL 120                                                                             
05/07/05       (H)       Meeting Postponed to 12 noon 5/8/05                                                                    
05/08/05       (H)       JUD AT 12:00 AM CAPITOL 120                                                                            
05/08/05       (H)       Meeting Postponed                                                                                      
05/09/05       (H)       JUD AT 0:00 AM CAPITOL 120                                                                             
05/09/05       (H)       <Bill Hearing Canceled>                                                                                
02/15/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 353                                                                                                                  
SHORT TITLE: SENTENCING FOR SEXUAL OFFENSES                                                                                     
SPONSOR(S): REPRESENTATIVE(S) NEUMAN, LYNN                                                                                      
                                                                                                                                
01/09/06       (H)       PREFILE RELEASED 1/6/06                                                                                
01/09/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/09/06       (H)       JUD, FIN                                                                                               
02/03/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/03/06       (H)       <Bill Hearing Canceled>                                                                                
02/08/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/08/06       (H)       Heard & Held                                                                                           
02/08/06       (H)       MINUTE(JUD)                                                                                            
02/13/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/13/06       (H)       Heard & Held                                                                                           
02/13/06       (H)       MINUTE(JUD)                                                                                            
02/15/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
SENATOR FRED DYSON                                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Spoke as the sponsor of SB 20.                                                                             
                                                                                                                                
MICHAEL "WES" MACLEOD-BALL, Executive Director                                                                                  
Alaska Civil Liberties Union (AkCLU)                                                                                            
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to SB 20.                                                                          
                                                                                                                                
KAREN VOSBURGH LEWIS, Executive Director                                                                                        
Alaska Right To Life                                                                                                            
Palmer, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of SB 20.                                                                             
                                                                                                                                
BRENDA STANFILL                                                                                                                 
Interior Alaska Center for Non-Violent Living                                                                                   
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Expressed concerns with SB 20.                                                                             
                                                                                                                                
MICHAEL SMITH                                                                                                                   
University of Alaska - Fairbanks Students for Life                                                                              
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  During hearing  of SB 20, related support of                                                               
any  legislation that  would criminalize  the  destruction of  an                                                               
unborn  child  and  any legislation  that  would  strengthen  the                                                               
penalties against a  violent individual who would  commit such an                                                               
act.                                                                                                                            
                                                                                                                                
PAMELA MARSCH                                                                                                                   
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    Expressed  concerns  with  the  language,                                                               
"intent to kill an unborn child" in SB 20.                                                                                      
                                                                                                                                
KENNETH JACOBUS, Attorney at Law                                                                                                
Kenneth Jacobus PC                                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   During  the hearing of  SB 20,  opined that                                                               
Alaska  needs to  enact a  law to  protect the  rights of  unborn                                                               
children  and  protect  them  from   being  harmed  knowingly  or                                                               
negligently by third parties.                                                                                                   
                                                                                                                                
DEBBIE JOSLIN                                                                                                                   
Eagle Forum Alaska                                                                                                              
Delta Junction, Alaska                                                                                                          
POSITION STATEMENT:  Testified in support of SB 20.                                                                             
                                                                                                                                
CLOVER SIMON, CEO                                                                                                               
Planned Parenthood Alaska                                                                                                       
(No address provided)                                                                                                           
POSITION  STATEMENT:    Testified  in  opposition  to  SB  20  as                                                               
currently written.                                                                                                              
                                                                                                                                
REPRESENTATIVE MARK NEUMAN                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:   Spoke  as  one of  the  prime sponsors  of                                                               
HB 353.                                                                                                                         
                                                                                                                                
REX SHATTUCK, Staff                                                                                                             
to Representative Mark Neuman                                                                                                   
House  Special Committee  on Economic  Development, International                                                               
Trade and Tourism                                                                                                               
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:    Provided   comments  at  the  request  of                                                               
Representative Neuman, one of the prime sponsors of HB 353.                                                                     
                                                                                                                                
SENATOR CON BUNDE                                                                                                               
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  As the sponsor  of SB 218, assisted with the                                                               
presentation of HB 353, Version F.                                                                                              
                                                                                                                                
SENATOR GRETCHEN GUESS                                                                                                          
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  As the sponsor  of SB 223, assisted with the                                                               
presentation of HB 353, Version F.                                                                                              
                                                                                                                                
SUSAN A. PARKES, Deputy Attorney General                                                                                        
Criminal Division                                                                                                               
Office of the Attorney General                                                                                                  
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Responded to  questions during discussion of                                                               
HB 353, Version F.                                                                                                              
                                                                                                                                
GINGER BRYANT                                                                                                                   
South Peninsula Haven House                                                                                                     
Homer, Alaska                                                                                                                   
POSITION STATEMENT:  Urged passage of HB 353.                                                                                   
                                                                                                                                
LESLIE A. HIEBERT, Attorney at Law                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Testified  in opposition to  the sentencing                                                               
provisions of HB 353, Version F.                                                                                                
                                                                                                                                
PHILLIP E. SHANAHAN, Attorney at Law                                                                                            
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   During discussion  of HB  353, Version  F,                                                               
provided comments and responded to questions.                                                                                   
                                                                                                                                
SIDNEY K. BILLINGSLEA, Attorney at Law                                                                                          
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    Provided comments  during  discussion  of                                                               
HB 353, Version F.                                                                                                              
                                                                                                                                
SUE CHRISTIANSEN                                                                                                                
Bearing Sea Women's Group                                                                                                       
Nome, Alaska                                                                                                                    
POSITION  STATEMENT:    Provided comments  during  discussion  of                                                               
HB 353, Version F.                                                                                                              
                                                                                                                                
MEGHAN GAUGHAN                                                                                                                  
Tundra Women's Center (TWC)                                                                                                     
Bethel, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 353.                                                                            
                                                                                                                                
DANIEL E. LIBBEY, Attorney at Law                                                                                               
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   During discussion  of HB  353, Version  F,                                                               
testified in opposition to the sentencing provisions.                                                                           
                                                                                                                                
MICHAEL A. MOBERLY, Attorney at Law                                                                                             
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   During discussion  of HB  353, Version  F,                                                               
testified in opposition.                                                                                                        
                                                                                                                                
CYNTHIA KARLSON                                                                                                                 
Women in Safe Homes (WISH)                                                                                                      
Ketchikan, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 353.                                                                            
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order at  1:13:27  PM.    Representatives                                                             
McGuire, Wilson, and  Coghill were present at the  call to order.                                                               
Representatives Kott,  Anderson, Gruenberg,  and Gara  arrived as                                                               
the meeting  was in  progress.  Representative  Lynn was  also in                                                               
attendance.                                                                                                                     
                                                                                                                                
SB 20 - OFFENSES AGAINST UNBORN CHILDREN                                                                                      
                                                                                                                                
1:13:56 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be CS FOR  SENATE BILL NO. 20(JUD), "An Act  relating to offenses                                                               
against unborn children."                                                                                                       
                                                                                                                                
1:14:09 PM                                                                                                                    
                                                                                                                                
SENATOR FRED  DYSON, Alaska State Legislature,  sponsor, informed                                                               
the committee  that CSSB  20(2d JUD)  includes an  amendment from                                                               
Senator  Guess  that  he  said  added  value.    Senator  Guess's                                                               
amendment, he explained,  clarifies that a woman who  stays in an                                                               
abusive domestic relationship could  not be charged with reckless                                                               
behavior.    Therefore,  he  said  that  he  would  support  that                                                               
provision being added back into the legislation.                                                                                
                                                                                                                                
CHAIR McGUIRE  pointed out that  the language of  Senator Guess's                                                               
amendment is located on page 3, lines 14-19, of CSSB 20(2d JUD).                                                                
                                                                                                                                
SENATOR  DYSON  noted  that   the  aforementioned  language  also                                                               
appears [on  page 2, lines  5-10, of  CSSB 20(2d JUD)].   Senator                                                               
Dyson then explained that SB  20 establishes that the damaging or                                                               
killing of  an unborn  child is  a separate  crime from  the harm                                                               
that might have  occurred to the mother.   The federal government                                                               
has passed the  Unborn Child Protection Act, he  noted.  However,                                                               
the  federal  Act  only  applies  on  federal  lands  or  in  the                                                               
prosecution of federal  crimes.  Much of what  happens in Alaska,                                                               
with regard  to assault, murder,  and manslaughter  is prosecuted                                                               
in state court by state  prosecutors.  After discussions with the                                                               
attorney general's  office, Senator  Dyson relayed,  the attorney                                                               
general  made it  clear that  this legislation  would allow  such                                                               
cases to be brought forth in state court.                                                                                       
                                                                                                                                
SENATOR  DYSON related  that approximately  30 other  states have                                                               
[enacted  provisions]  similar  to  what is  being  proposed  via                                                               
SB 20.  He  then informed the committee that  in 1969, California                                                               
police  entered  the  wrong  apartment during  a  drug  bust  and                                                               
mistakenly [shot a  pregnant] woman and killed  her unborn child.                                                               
Although it  was a mistake,  as the  matter was addressed  it was                                                               
realized that  there were no  statutes that allowed  recourse for                                                               
the [unborn]  child.  Nothing  in California law  established the                                                               
value of  the [unborn] child  that was lost.   At that  time, the                                                               
California legislature passed one  of the first [provisions] that                                                               
established  the  value  of  a   wanted,  unborn  child.    After                                                               
obtaining model  legislation from  various sources and  help from                                                               
the Department  of Law (DOL)  and Legislative Legal  and Research                                                               
Services, SB 20 was crafted in  order to insert "unborn child" in                                                               
several places  in statute and addresses  specific incidents that                                                               
are particular to an unborn child.                                                                                              
                                                                                                                                
1:19:04 PM                                                                                                                    
                                                                                                                                
SENATOR  DYSON   noted  that  the  committee   will  likely  hear                                                               
testimony  that  SB 20  can  be  construed to  be  anti-abortion.                                                               
However,  he  offered  to provide  the  committee  with  [written                                                               
documentation] from several legal  experts and law school faculty                                                               
establishing stating  that the legislation is  not anti-abortion.                                                               
Senator Dyson clarified  that SB 20 doesn't speak  to abortion or                                                               
damage to  an unborn  child that may  occur during  diagnostic or                                                               
therapeutic  processes;  however,  it does  establish  an  unborn                                                               
child as  an entity worthy  of protection and recognition  in the                                                               
law.                                                                                                                            
                                                                                                                                
SENATOR DYSON then turned to the  question of what happens if one                                                               
harms a  pregnant woman that one  didn't know was pregnant.   The                                                               
law is  clear that if  the individual had evil  intentions toward                                                               
the  woman  and carried  those  out,  then those  intentions  are                                                               
"transferable."  He  offered an example of a  situation wherein a                                                               
man attacked another who was carrying  a child under his coat and                                                               
thus the attacker  could be charged for the damage  to the child.                                                               
Senator Dyson  explained that  the actions for  which one  can be                                                               
charged under  the bill  are the  same as if  the child  has been                                                               
born.   In order to  have a crime,  there has to  be demonstrable                                                               
harm, intention, and an instrument to cause the harm.                                                                           
                                                                                                                                
CHAIR McGUIRE  asked if the  only difference between  [CSSB 20(2d                                                               
JUD)] and CSSB  20(JUD) is the deletion of  the domestic violence                                                               
provisions.                                                                                                                     
                                                                                                                                
SENATOR DYSON  said, "To the best  of my knowledge."   He offered                                                               
to research that issue further to be sure.                                                                                      
                                                                                                                                
CHAIR McGUIRE requested a motion to  adopt CSSB 20(2d JUD) as the                                                               
work draft.                                                                                                                     
                                                                                                                                
1:24:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON moved to adopt  CSSB 20(2d JUD) as the work                                                               
draft.                                                                                                                          
                                                                                                                                
The committee took an at-ease from 1:25 p.m. to 1:26 p.m.                                                                       
                                                                                                                                
CHAIR McGUIRE, in response to  questions, recapped the difference                                                               
between CSSB 20(JUD)  and CSSB 20(2d JUD), and  suggested that by                                                               
adopting CSSB 20(2d  JUD) as the work draft,  the committee could                                                               
save time.                                                                                                                      
                                                                                                                                
CHAIR McGUIRE, upon determining that  there were no objections to                                                               
Representative Wilson's  motion, announced  that CSSB  20(2d JUD)                                                               
was before the committee.                                                                                                       
                                                                                                                                
1:26:17 PM                                                                                                                    
                                                                                                                                
MICHAEL  "WES"  MACLEOD-BALL,  Executive Director,  Alaska  Civil                                                               
Liberties Union (AkCLU),  spoke in opposition to  SB 20, although                                                               
he clarified that the AkCLU  fully supports the efforts to punish                                                               
acts of  violence against  women that would  harm or  terminate a                                                               
wanted pregnancy.  However, this  legislation would do so in such                                                               
a  way  that  diminishes  the  woman,  the  intended  victim,  by                                                               
separating the fetus from  the woman in the eyes of  the law.  He                                                               
relayed that  the AkCLU supports alternate  approaches, including                                                               
enhanced penalties  for cases  in which a  woman suffers  harm to                                                               
herself or her wanted pregnancy.                                                                                                
                                                                                                                                
MR.  MACLEOD-BALL  informed  the   committee  that  according  to                                                               
certain  statistics  and  studies,  one-third  of  female  murder                                                               
victims are killed by their  intimate partner; 4-8 percent of the                                                               
women in the nation are battered  by the men in their lives, with                                                               
the  highest   rate  pertaining  to  pregnant   adolescents;  and                                                               
homicide  is the  number  one  killer of  pregnant  women.   This                                                               
information illustrates that the intent  of the perpetrator is to                                                               
harm the woman, not the child,  though the pregnancy of the woman                                                               
heightens the likelihood of battery.   Although he confirmed that                                                               
[the AkCLU's] desire  is to do something about  this problem, the                                                               
issues associated with doing so need to be addressed further.                                                                   
                                                                                                                                
MR. MACLEOD-BALL  expressed concern that the  current legislation                                                               
doesn't exempt  the pregnant woman  from criminal liability.   He                                                               
pointed out that  the privacy right guarantees a  woman the right                                                               
to  control her  own  body  in the  absence  of compelling  state                                                               
interest.   Furthermore,  the  U.S. Supreme  Court  case, Roe  v.                                                             
Wade, interprets that right as  protecting the right to abortion.                                                             
However, SB 20 criminalizes activity,  with respect to the fetus,                                                               
that  is less  harmful than  abortion.   He indicated  that if  a                                                               
woman  has the  right  to abort  under constitutional  standards,                                                               
then it stands to reason that  a pregnant woman ought to have the                                                               
right to do other things during  her pregnancy that fall short of                                                               
abortion.   However, [under  SB 20] the  pregnant woman  would be                                                               
put at risk of incurring criminal liability.                                                                                    
                                                                                                                                
MR.  MACLEOD-BALL  then  said  that SB  20  will  encourage  more                                                               
abortions if a  woman is anxious that some activity  in which she                                                               
is  engaged during  pregnancy may  result in  harm to  her fetus.                                                               
Why would  a woman risk criminal  liability under SB 20  when she                                                               
could  simply  abort the  fetus?    Furthermore, SB  20  unfairly                                                               
penalizes wholly  innocent and  legal behavior,  and a  woman who                                                               
doesn't  know  that she  is  pregnant  and engages  in  high-risk                                                               
activity  might  be  exposed to  criminal  liability  under  this                                                               
proposed legislation.   There are also a host of  proof and legal                                                               
procedural issues that are raised by SB 20.                                                                                     
                                                                                                                                
MR.  MACLEOD-BALL said  that although  proponents could  say that                                                               
it's not the  intent of SB 20  to subject women in  some of these                                                               
hypothetical situations to criminal  liability, the language does                                                               
support doing  so, and therefore  there will be a  prosecutor who                                                               
will bring  a case against a  woman who will then  have to defend                                                               
herself.  Moreover,  there will be additional costs  to the state                                                               
that  aren't  being  considered,   including  the  various  costs                                                               
necessary  to  scientifically  prove   or  disprove  the  various                                                               
elements of such cases.                                                                                                         
                                                                                                                                
1:31:35 PM                                                                                                                    
                                                                                                                                
MR. MACLEOD-BALL concluded by  reiterating the AkCLU's opposition                                                               
to SB  20, which he  characterized as bad legislation.   However,                                                               
he  noted that  the AkCLU  is in  favor of  heightening penalties                                                               
against those  who would harm  pregnant women,  particularly when                                                               
there  is damage  to the  fetus.   He said  that he  believes the                                                               
sponsor  of  SB  20  is concerned  with  children,  fetuses,  and                                                               
abortions.    However,  he  said   he  didn't  believe  that  the                                                               
proponents  are  concerned  with  finding a  consensus  on  these                                                               
issues  because  if  that  were  truly  the  case,  the  numerous                                                               
references  to  "unborn children"  in  the  legislation would  be                                                               
deleted and there  would be more of an attempt  to agree upon the                                                               
common  ground of  heightening sentencing  for those  engaging in                                                               
activities that harm fetuses.                                                                                                   
                                                                                                                                
CHAIR McGUIRE  offered that as  she read the legislation,  if the                                                               
perpetrator is  using a dangerous  instrument, the  mental intent                                                               
of    reckless   enters    [the   equation];    otherwise,   it's                                                               
"intentionally"  or "knowingly."   Therefore,  she said  that she                                                               
only sees "reckless" as a  mental intent when in combination with                                                               
a dangerous instrument.                                                                                                         
                                                                                                                                
MR. MACLEOD-BALL  said that while  there may be  an understanding                                                               
of  what  particular terms  mean,  how  that  is carried  out  in                                                               
practice  is  a  different  matter.   Furthermore,  there  is  no                                                               
specific  exemption  for  a  woman's own  actions,  and  such  an                                                               
exemption should be included in the  bill.  He offered to provide                                                               
more specific suggestions in writing.                                                                                           
                                                                                                                                
REPRESENTATIVE  GARA pointed  out  that in  the current  criminal                                                               
code,  AS 11.89.100,  serious physical  injury  that a  defendant                                                               
causes   includes  an   injury  that   unlawfully  terminates   a                                                               
pregnancy.  However, it seems  that there are aggravating factors                                                               
that  can   change  the  sentence.     Therefore,  it   would  be                                                               
appropriate, he  opined, to have  an aggravator that  makes clear                                                               
that  if  serious  physical  injury   is  caused,  including  the                                                               
termination of  a pregnancy, it  will lead to a  higher sentence.                                                               
The  aforementioned   may  be  an  appropriate   way  to  address                                                               
situations in which someone recklessly causes a miscarriage.                                                                    
                                                                                                                                
MR.  MACLEOD-BALL  said there  is  probably  some merit  to  that                                                               
approach as perhaps all sides on this issue could agree on it.                                                                  
                                                                                                                                
1:36:30 PM                                                                                                                    
                                                                                                                                
KAREN VOSBURGH  LEWIS, Executive Director, Alaska  Right To Life,                                                               
began  by  informing  the  committee  that  currently  32  states                                                               
recognize the  killing of an unborn  child as a homicide  in some                                                               
circumstances.    Of  those  states, there  are  20  states  with                                                               
homicide  laws   that  recognize   unborn  children   as  victims                                                               
throughout the entire prenatal  development period.  Furthermore,                                                               
she related,  it's well established  that legislation such  as SB                                                               
20  doesn't  conflict  with   the  Supreme  Court's  pro-abortion                                                               
decisions such as Roe v.  Wade.  Criminal defendants have brought                                                             
many legal challenges to the  state's unborn victim laws based on                                                               
Roe  v. Wade  and other  constitutional arguments,  but all  such                                                             
challenges have  been rejected by  the courts.   In fact,  in the                                                               
1989 case  of Webster v.  Reproductive Health Services,  the U.S.                                                             
Supreme  Court  refused to  invalidate  a  Missouri statute  that                                                               
declares the  life of each  human being begins at  conception and                                                               
that unborn children have protectable  interests in life, health,                                                               
and well  being.   Furthermore, the  [U.S. Supreme  Court stated]                                                               
that  all  state  laws  shall be  interpreted  and  construed  to                                                               
acknowledge  on behalf  of the  unborn  child at  every stage  of                                                               
development, all rights, privileges,  and immunities available to                                                               
other  persons,  citizens, and  residents  of  the state  to  the                                                               
extent  permitted  by the  constitution  and  U.S. Supreme  Court                                                               
rulings.                                                                                                                        
                                                                                                                                
MS. VOSBURGH LEWIS informed the  committee that a scientific poll                                                               
by  Newsweek released  in  June 2005  asked  whether someone  who                                                             
killed a fetus in the womb  should face a homicide charge for the                                                               
act,  either   throughout  the  pregnancy,  from   the  point  at                                                               
viability, or not at all.   She relayed her understanding that 56                                                               
percent of  those responding to the  poll said there should  be a                                                               
homicide  charge  for  the  act  throughout  pregnancy  while  28                                                               
percent said a homicide charge should  be allowed at the point of                                                               
viability, which amounts to 84  percent favoring homicide charges                                                               
in these  cases.   Only 9  percent said there  should be  no such                                                               
thing as a  fetal homicide charge.   In May 2005 a  Fox News poll                                                               
found that  84 percent  of the nation  favored a  double homicide                                                               
charge  in the  Laci Peterson  murder  case in  California.   Ms.                                                               
Vosburgh Lewis concluded by characterizing  SB 20 as common sense                                                               
legislation, and urged the committee to pass it.                                                                                
                                                                                                                                
1:40:01 PM                                                                                                                    
                                                                                                                                
BRENDA STANFILL,  Interior Alaska Center for  Non-Violent Living,                                                               
reminded the  committee that  a lot  of time was  spent on  SB 20                                                               
last  year and  many [concerns]  remain.   However, she  said she                                                               
appreciated  the  work to  exempt  charging  victims of  domestic                                                               
violence who  stay in a  relationship with homicide  based solely                                                               
on staying in the relationship.   "But it still goes back to ...,                                                               
until we do  a better job of protecting a  woman, we're not going                                                               
to be  able to protect  her child,"  she remarked.   Although she                                                               
said  she  understands the  need  for  additional crimes,  SB  20                                                               
approaches  it in  the wrong  way, and  noted her  agreement with                                                               
earlier  testimony   that  there  will  still   be  prosecutorial                                                               
discretion  and so  this bill  could be  used against  a pregnant                                                               
woman.  Ms. Stanfill said that  she is most concerned with crimes                                                               
against a woman whose own child has been lost.                                                                                  
                                                                                                                                
MS. STANFILL expressed  further concern that SB 20 may  lead to a                                                               
woman not  seeking help or health  care when she has  been beaten                                                               
repeatedly.   Therefore,  the community  and the  state would  be                                                               
better  served  by establishing  a  crime  against a  woman  with                                                               
aggravating  factors  and  additional penalties  when  an  unborn                                                               
child is  involved.  She relayed  that many women at  the shelter                                                               
experienced their  first incidence of physical  assault when they                                                               
were pregnant.  She opined that  it's very important to keep this                                                               
in  context in  that this  is  a crime  against a  woman and  the                                                               
penalties should be placed there so  that women can be made safe.                                                               
She  further  opined  the  penalties  for  men  who  are  abusing                                                               
pregnant women  need to be increased.   Ms. Stanfill said  that a                                                               
[pregnant] woman should not be  in danger of being prosecuted for                                                               
a crime.                                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked Ms. Stanfill whether  she saw any                                                               
need  for  additional crimes  to  protect  those who  are  abused                                                               
during pregnancy.                                                                                                               
                                                                                                                                
MS. STANFILL replied yes, and pointed  out that a man can abuse a                                                               
woman with  his fists  over and  over again  and only  be charged                                                               
with  fourth degree  assault,  a  misdemeanor charge  engendering                                                               
little to  no jail time.   The laws don't  do an adequate  job of                                                               
ensuring that women are protected  via the imposition of the jail                                                               
time that fits the crimes perpetrated against them.                                                                             
                                                                                                                                
CHAIR McGUIRE, in response to  a question, informed the committee                                                               
that amendments to  SB 20 would be considered at  the bill's next                                                               
hearing, and mentioned that the title may need to be amended.                                                                   
                                                                                                                                
1:44:51 PM                                                                                                                    
                                                                                                                                
MICHAEL  SMITH, University  of Alaska  -  Fairbanks Students  for                                                               
Life,  relayed  that  he  supports  any  legislation  that  would                                                               
criminalize  the   destruction  of   an  unborn  child   and  any                                                               
legislation  that  would  strengthen  the  penalties  against  an                                                               
individual who would commit such an act.                                                                                        
                                                                                                                                
1:45:39 PM                                                                                                                    
                                                                                                                                
PAMELA MARSCH turned  attention to the language,  "intent to kill                                                               
an unborn child" and posed a  situation in which a pregnant woman                                                               
was advised  to have bed  rest, but the  woman needed to  work to                                                               
feed her  other children.   In  such a case,  would the  woman in                                                               
such a situation  who decided to work be prosecuted  under SB 20?                                                               
Although everyone would  probably say no, the "intent  to kill an                                                               
unborn child" language could be  interpreted that way because the                                                               
woman was  advised to have  bed rest.  Furthermore,  she pondered                                                               
whether a  woman who  abuses drugs or  alcohol may  simply choose                                                               
not  to obtain  help because  of  the fear  of prosecution  under                                                               
SB 20.                                                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG  recalled that an earlier  version of SB                                                               
20  included  a provision  that  exempted  actions taken  by  the                                                               
pregnant woman.   He  said that  he may  offer an  amendment that                                                               
would cure Ms. Marsch's concern.                                                                                                
                                                                                                                                
1:48:40 PM                                                                                                                    
                                                                                                                                
KENNETH  JACOBUS, Attorney  at Law,  Kenneth  Jacobus PC,  opined                                                               
that Alaska needs to enact a  law to protect the rights of unborn                                                               
children who are  being harmed knowingly or  negligently by third                                                               
parties.   He said that  he is  less concerned about  folks being                                                               
prosecuted  when they  shouldn't because  there is  prosecutorial                                                               
discretion.   With regard  to exempting  actions undertaken  by a                                                               
pregnant woman  herself, he  opined, such  an exemption  would be                                                               
too broad because there are certain  things that a woman could do                                                               
to herself that should be criminalized.                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  referred to Senator  French's amendment                                                               
offered on the  Senate floor to the language on  page 2, line 13,                                                               
and  requested  that Mr.  Jacobus  fax  him any  suggestions  for                                                               
change.                                                                                                                         
                                                                                                                                
1:51:09 PM                                                                                                                    
                                                                                                                                
DEBBIE JOSLIN, Eagle Forum Alaska,  relayed her support for SB 20                                                               
and urged  the committee to  pass the  bill.  Ms.  Joslin opined,                                                               
"In  a society  where  we're  supposed to  value  human life  and                                                               
protect women,  women are increasingly the  victims of violence."                                                               
She offered the following statistics:   32 percent of nonpregnant                                                               
women  were victims  of homicide;  while 43.3  of pregnant  women                                                               
were victims of  homicide, 74 percent of which  died from gunshot                                                               
trauma; and 3  out of 4 of women with  evidence of pregnancy were                                                               
victims of homicide within the first  20 weeks of pregnancy.  She                                                               
opined  that the  aforementioned  statistics  suggest that  women                                                               
aren't  always  the primary  victim  but  rather it's  often  the                                                               
unborn child.                                                                                                                   
                                                                                                                                
1:52:33 PM                                                                                                                    
                                                                                                                                
CLOVER SIMON, CEO, Planned Parenthood  Alaska (PPA), informed the                                                               
committee that PPA certainly shares  the sponsor's goal of making                                                               
a loss  of pregnancy due to  violence a greater crime.   However,                                                               
at  this  time   the  organization  is  unable   to  support  the                                                               
legislation as currently  written.  Furthermore, SB  20 is viewed                                                               
as  part of  a  national  trend to  erode  the  foundations of  a                                                               
woman's  right to  choose  by elevating  all  stages of  prenatal                                                               
development  under  state law.    Ms.  Simon suggested  that  the                                                               
legislature  instead adopt  a penalty  enhancement approach  that                                                               
would make  it one felony count  higher to harm a  pregnant woman                                                               
when   the   result   is  miscarriage   or   stillbirth.      The                                                               
aforementioned  approach  is  more   likely  to  reach  offenders                                                               
because  the language  is cleaner  and  less likely  for the  two                                                               
separate charges  to be  joined in prosecution,  and it  would be                                                               
simpler to  have the  increased penalty  come in  the form  of an                                                               
aggravator.   The  resulting penalty  would  be as  stiff as  the                                                               
penalties outlined in the current version of SB 20.                                                                             
                                                                                                                                
MS. SIMON echoed concern with regard  to the lack of an exception                                                               
for actions that  a woman may undertake herself.   She then urged                                                               
the committee to  review the following language of  Section 2 [of                                                               
CSSB 20(JUD)], which read:                                                                                                      
                                                                                                                                
      the birth of a child before 37 weeks gestation with                                                                       
     weight at birth of 2,500 grams or less is prima facie                                                                      
     evidence of serious physical injury.                                                                                       
                                                                                                                                
MS. SIMON  asked the committee to  consider how a woman  might be                                                               
prosecuted under  this section.   In closing, Ms.  Simon reminded                                                               
the committee  that the protection  of the woman must  come first                                                               
because  the woman's  safety and  well being  allows there  to be                                                               
healthy a  baby.   The bill  as currently  written seems  to have                                                               
left  this part  out, and  therefore she  urged the  committee to                                                               
work with PPA to develop legislation that everyone can support.                                                                 
                                                                                                                                
MS. SIMON, in  response to a question, asked whether  a woman who                                                               
smokes during her pregnancy, which  is a known cause of low-birth                                                               
weight and pre-term labor, could be prosecuted under SB 20.                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out  that  a low-birth  weight                                                               
baby may not necessarily have any physical injury.                                                                              
                                                                                                                                
CHAIR  McGUIRE   encouraged  committee  members  to   review  the                                                               
language regarding "a  dangerous instrument."  She  said that she                                                               
didn't know whether a cigarette  would be a dangerous instrument.                                                               
Therefore, perhaps the focus should  be related to the definition                                                               
of  a dangerous  instrument.   The only  place in  the bill  that                                                               
reckless  conduct  is used  is  in  concert  with  the use  of  a                                                               
dangerous instrument;  there is nowhere in  the legislation where                                                               
the  reckless  conduct and  the  use  of a  dangerous  instrument                                                               
aren't linked.                                                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  argued, however,  that the  language on                                                               
page  3, lines  14-19, seems  to  address the  issue of  pregnant                                                               
women who intentionally smoke.   Therefore, he questioned whether                                                               
a cigarette might be considered  a dangerous instrument under the                                                               
facts of a particular case.                                                                                                     
                                                                                                                                
1:57:50 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE  opined that  she  couldn't  imagine a  prosecutor                                                               
making  an  argument  that  a woman  intended  to  cause  serious                                                               
physical injury to her unborn child by smoking.                                                                                 
                                                                                                                                
REPRESENTATIVE GARA  noted that  normally a  dangerous instrument                                                               
is a weapon, and that it's  understandable that one would want to                                                               
have an enhanced  crime when someone misuses a  weapon and causes                                                               
a  very serious  injury.   Therefore, he  questioned whether  the                                                               
committee should consider substituting  "weapon" for "a dangerous                                                               
instrument."     Currently,  when  the  language,   "a  dangerous                                                               
instrument" is used in conjunction  with negligent homicide, then                                                               
one  could be  talking about  a bad  car accident  that causes  a                                                               
miscarriage;  under the  bill, in  such a  situation, the  person                                                               
could be charged  with negligent homicide even  though that might                                                               
not be the sponsor's intention.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  that there are  cases from                                                               
the Alaska  Supreme Court  and the Alaska  Court of  Appeals that                                                               
hold that a boot and a telephone are dangerous instruments.                                                                     
                                                                                                                                
CHAIR McGUIRE  opined that Ms.  Simon makes some good  points and                                                               
although  the  legislation  may  continue  to  have  some  places                                                               
requiring  further   clean  up,  she  wasn't   convinced  that  a                                                               
cigarette [would be viewed as a dangerous instrument].                                                                          
                                                                                                                                
2:00:10 PM                                                                                                                    
                                                                                                                                
CHIP WAGONER,  Executive Director, Alaska Conference  of Catholic                                                               
Bishops,  relayed  that  the  church   believes  life  should  be                                                               
protected from conception  to natural death.   He further relayed                                                               
that a  person's dignity comes  from God  and as such  the church                                                               
believes that everyone  has a right to life and  a right to those                                                               
things  that  make life  truly  human,  such as  food,  clothing,                                                               
housing,  health care,  education, et  cetera.   This legislation                                                               
recognizes that a  child in the womb deserves  protection just as                                                               
do other  people.  Those who  are responsible for the  loss of an                                                               
unborn child  should be  held accountable just  as they  would be                                                               
were the child  in the mother's arms.  The  aforementioned is why                                                               
the Alaska  Conference of  Catholic Bishops supports  SB 20.   He                                                               
noted  appreciation for  the committee's  adoption of  CSSB 20(2d                                                               
JUD),   which  includes   Senator  Guess's   amendment  regarding                                                               
domestic violence situations.                                                                                                   
                                                                                                                                
2:02:24 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE announced  that  [CSSB 20(2d  JUD)]  would be  set                                                               
aside, and  that she would  leave public testimony open  with the                                                               
caveat that those who have already testified not do so again.                                                                   
                                                                                                                                
HB 353 - SENTENCING FOR SEXUAL OFFENSES                                                                                       
                                                                                                                                
[Contains  mention  that  the  provisions of  SB  218  have  been                                                               
incorporated  into the  proposed committees  substitute (CS)  for                                                               
HB 353, Version  F, and an  indication that the provisions  of SB                                                               
223 had  previously been incorporated  into SB 218;  the sponsors                                                               
of SB 223 and SB 218 assisted with the presentation of HB 353.]                                                                 
                                                                                                                                
2:03:01 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE BILL  NO. 353, "An Act relating to  sentences for sexual                                                               
offenses."   [Before  the committee  was  the proposed  committee                                                               
substitute  (CS)  for  HB 353,  Version  24-LS1449\G,  Luckhaupt,                                                               
2/2/06, which had been adopted as a work draft on 2/8/06.]                                                                      
                                                                                                                                
2:04:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MARK NEUMAN, Alaska  State Legislature, one of the                                                               
prime sponsors of  HB 353, relayed that  members' packets contain                                                               
a new proposed committee substitute  (CS) for HB 353, Version 24-                                                               
LS1449\F,  Luckhaupt, 2/10/06,  that incorporates  the provisions                                                               
of SB 218 into HB 353.                                                                                                          
                                                                                                                                
2:04:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON moved to adopt  the proposed CS for HB 353,                                                               
Version  24-LS1449\F,  Luckhaupt,  2/10/06, as  the  work  draft.                                                               
There being no objection, Version F was before the committee.                                                                   
                                                                                                                                
REPRESENTATIVE NEUMAN relayed that  incorporating the senate bill                                                               
into HB  353 was done  with the  goal of protecting  all Alaskans                                                               
from sexual  assault crimes and  sexual abuse of a  minor crimes,                                                               
and that  it is  hoped that  Version F will  address some  of the                                                               
concerns  previously raised  in committee.   He  remarked on  the                                                               
work that he, Senator Con  Bunde, and Senator Gretchen Guess have                                                               
done in crafting the legislation currently before the committee.                                                                
                                                                                                                                
2:06:15 PM                                                                                                                    
                                                                                                                                
REX SHATTUCK, Staff to Representative  Mark Neuman, House Special                                                               
Committee  on  Economic   Development,  International  Trade  and                                                               
Tourism,  Alaska  State  Legislature, provided  comments  at  the                                                               
request of  Representative Neuman, one  of the prime  sponsors of                                                               
HB 353.   He relayed  that Representative Neuman,  Senator Bunde,                                                               
and  Senator Guess  have  worked to  try to  "fix"  the issue  of                                                               
presumptive sentencing.   Mr. Shattuck then relayed  that when he                                                               
was  11  years old,  he  was  the victim  of  what  would now  be                                                               
considered the  crime of sexual  abuse of  a minor in  the second                                                               
degree -  a class B felony;  he was fondled through  clothing and                                                               
solicited.  Mr. Shattuck  said he was there to put  a face on the                                                               
issue and  to speak  for those who  won't typically  come forward                                                               
and speak for themselves.  He went on to say:                                                                                   
                                                                                                                                
     I was 11 when it happened  and I'm now 49, and that's a                                                                    
     sentence of 38  years and growing without  parole.  And                                                                    
     I understand  that we should  have some  recognition of                                                                    
     the defendants, but the victims  also are a key part of                                                                    
     this.  And I urge you  to remember that as you're going                                                                    
     through this, there's some  big disparities between the                                                                    
     sentencing of the defendant and  [the sentences of] the                                                                    
     victim.                                                                                                                    
                                                                                                                                
2:08:35 PM                                                                                                                    
                                                                                                                                
SENATOR  CON BUNDE,  Alaska State  Legislature,  speaking as  the                                                               
sponsor of SB 218, offered that  the goal of [HB 353, Version F,]                                                               
is  to  protect  citizens  without being  "overly  draconian"  to                                                               
sexual predators.  Alaska has  a reputation of having the highest                                                               
sexual assault  rate in  the nation,  actually 70  percent higher                                                               
than  the next  highest state.   Furthermore,  just the  reported                                                               
cases make  up that high rate  - the reported cases  are just the                                                               
"tip  of  the   iceberg"  -  and  only  a   small  percentage  of                                                               
perpetrators actually  get convicted.  He  characterized [Version                                                               
F] as  a cooperative effort,  and remarked  on the need  to press                                                               
forward  with  a vehicle  that  will  stop  the creation  of  new                                                               
victims, particularly given that it  is very difficult for sexual                                                               
offenders to change.  Rehabilitation  of sexual offenders is very                                                               
unlikely, and  so the only way  to ensure the public's  safety is                                                               
to remove sexual offenders from society.                                                                                        
                                                                                                                                
SENATOR  BUNDE  noted  that  [Version  F]  essentially  insulates                                                               
society  from  sexual  offenders,  people  who  inflict  lifelong                                                               
wounds.   Excessive  alcohol  use and  drug  abuse are  sometimes                                                               
touted as  reasons for Alaska's  high rate of sexual  assault and                                                               
sexual abuse  of a minor  cases, but he discounts  that argument,                                                               
he  relayed, adding  that  the  drive to  commit  such crimes  is                                                               
already there  to begin  with in  certain people.   Acknowledging                                                               
that  [adoption of  Version F]  will be  a drastic  and expensive                                                               
step, he asserted that it is still a necessary step.                                                                            
                                                                                                                                
2:14:17 PM                                                                                                                    
                                                                                                                                
SENATOR  GRETCHEN GUESS,  Alaska State  Legislature, speaking  as                                                               
the sponsor of SB 223, noted  that she and Senators Dyson, Elton,                                                               
Kookesh, Green,  Olson, Hoffman,  and Seekins  have signed  on as                                                               
co-sponsors  of  SB  218.   She  explained  that  although  she'd                                                               
introduced SB  223, she  has since  "joined forces"  with Senator                                                               
Bunde  on SB  218,  adding  that she  would  be  speaking to  the                                                               
specific changes  she'd [had  incorporated into  SB 218  and then                                                               
into HB 353, Version F].   To begin with, she opined that Version                                                               
F is too lenient, because she  has no tolerance for "this issue,"                                                               
and asked  members to keep in  mind that the vehicle  that passed                                                               
the  Senate in  no way  represents the  upper level  [of possible                                                               
sentences] and already contains compromises.                                                                                    
                                                                                                                                
SENATOR GUESS said  that her motivation for sponsoring  a bill on                                                               
this  issue is  one  of  values, rather  than  one of  protecting                                                               
people or  addressing statistics.   The legislature is  a policy-                                                               
making group whose  decisions are meant to reflect  the values of                                                               
the members'  communities.  She  proffered that  her constituents                                                               
would be shocked to hear that currently a rapist serving a five-                                                                
year sentence or  a child molester serving  a three-year sentence                                                               
could  be  released  after serving  only  two-thirds  of  his/her                                                               
sentence,  surmising  that  this  type  of  sentencing  structure                                                               
doesn't  represent the  values  of the  people  in her  district.                                                               
People count  on the legislature  to establish laws  that reflect                                                               
their  values.   Unfortunately,  she  remarked,  sex crimes  have                                                               
never been  given the scrutiny  and treated as seriously  as they                                                               
deserve; for example,  it wasn't until just three  years ago that                                                               
she was  able to  pass legislation  stipulating that  the Violent                                                               
Crimes  Compensation Board  (VCCB) couldn't  blame a  rape victim                                                               
for being raped.                                                                                                                
                                                                                                                                
SENATOR GUESS said  that although some may  question the dramatic                                                               
increase in sentencing  proposed via Version F, her  view is, how                                                               
can the  legislature not institute  such increases  in sentencing                                                               
and how can it  not reflect the values of Alaskans.   She went on                                                               
to  say  that  she  dismisses  the notion  that  some  rapes  and                                                               
molestations  are  not  serious;  instead, she  opined,  all  are                                                               
serious and  have serious consequences  on the victim and  on the                                                               
community.  She relayed that her  interest is in making sure that                                                               
for any  given sexual assault  crime or  sexual abuse of  a minor                                                               
crime,  the   sentencing  scheme  reflects  the   values  of  her                                                               
community; currently they  don't match, and what  is proposed via                                                               
Version F comes closer to a match.                                                                                              
                                                                                                                                
2:19:31 PM                                                                                                                    
                                                                                                                                
SENATOR GUESS noted that Sections 1 and  2 of Version F of HB 353                                                               
were taken  from SB 223.   Section 1 will add  new paragraphs (6)                                                               
and  (7) to  AS 11.41.436(a)  - sexual  abuse of  a minor  in the                                                               
second degree -  and these new paragraphs  pertain to penetration                                                               
crimes that currently are listed as  paragraphs (2) and (3) of AS                                                               
11.41.438(a) - sexual abuse of a  minor in the third degree.  She                                                               
opined that penetration crimes involving  minors should be either                                                               
first or  second degree crimes  because they are  serious crimes,                                                               
and although some  would like to dismiss such crimes  as being of                                                               
no  consequence,  the consequences  of  being  in a  position  of                                                               
authority and  having sex with  someone under  the age of  18 are                                                               
serious.   With  the  adoption of  Section 1  of  Version F,  all                                                               
penetration  crimes  involving minors  will  be  either first  or                                                               
second degree crimes.                                                                                                           
                                                                                                                                
SENATOR GUESS  explained that  Section 2 of  Version F  creates a                                                               
new  crime  of failing  to  report  a  sex  offender or  a  child                                                               
kidnapper  who has  not registered  as such,  and a  violation of                                                               
this  proposed  statute -  AS  11.56.767  -  will  be a  class  A                                                               
misdemeanor.    This  provision  is in  response  to  a  [recent]                                                               
Florida case  involving a  sex offender who  was living  with his                                                               
sister;  his sister  knew he  was  sex offender,  knew he  hadn't                                                               
registered, didn't  do anything  about it,  and the  sex offender                                                               
went on to [abduct, rape, torture, and kill a little girl].                                                                     
                                                                                                                                
2:22:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  whether  members  of the  clergy                                                               
ought to  be included  in the exemption  provided by  proposed AS                                                               
11.56.767(b), which says:                                                                                                       
                                                                                                                                
     (b) In a  prosecution under (a) of this  section, it is                                                                    
     a defense  that the  defendant was a  licensed attorney                                                                    
     and there existed,  at the time of the  offense, a bona                                                                    
     fide attorney-client relationship  between the attorney                                                                    
     and the sex offender or child kidnapper.                                                                                   
                                                                                                                                
SENATOR GUESS  said she would  not be comfortable  adding members                                                               
of the clergy to that exemption.                                                                                                
                                                                                                                                
REPRESENTATIVE   NEUMAN  expressed   a  preference   for  keeping                                                               
proposed AS 11.56.767(b) as is.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG noted that  the Alaska Rules of Evidence                                                               
contain  an  exemption for  communications  with  members of  the                                                               
clergy.                                                                                                                         
                                                                                                                                
SENATOR BUNDE mentioned that there  is a difference between being                                                               
aware of a fact and being a knowing participant in a crime.                                                                     
                                                                                                                                
REPRESENTATIVE  GARA asked  Senator  Guess whether  she would  be                                                               
amenable  to  a  change  that   would  ensure  that  proposed  AS                                                               
11.56.767  doesn't   apply  in  situations   involving  custodial                                                               
interference.                                                                                                                   
                                                                                                                                
SENATOR GUESS, in  response to that question  and other comments,                                                               
pointed  out  that AS  11.56.767(a)  only  applies in  situations                                                               
where  a  person  knows  that  someone must  register  as  a  sex                                                               
offender  or  child  kidnapper  and   hasn't  yet  done  so,  and                                                               
therefore  the  provision  won't apply  in  situations  involving                                                               
custodial interference.                                                                                                         
                                                                                                                                
REPRESENTATIVE GARA acknowledged that point.                                                                                    
                                                                                                                                
CHAIR McGUIRE concurred.                                                                                                        
                                                                                                                                
REPRESENTATIVE   GRUENBERG   questioned   whether   proposed   AS                                                               
11.56.767(b) might  impact the other  "privileges" in  the Alaska                                                               
Rules of Evidence,  adding that he wants to ensure  that the bill                                                               
is constitutional with regard to possible court rule changes.                                                                   
                                                                                                                                
CHAIR McGUIRE  offered her understanding  that anytime  a failure                                                               
to  report a  crime  is  made a  crime  itself, unless  otherwise                                                               
specified,   it  won't   automatically   impact  the   privileges                                                               
currently listed in the Alaska Rules of Evidence.                                                                               
                                                                                                                                
2:30:36 PM                                                                                                                    
                                                                                                                                
SUSAN  A. PARKES,  Deputy  Attorney  General, Criminal  Division,                                                               
Office of the Attorney General,  Department of Law (DOL), offered                                                               
her  understanding, however,  that similar  to the  legislature's                                                               
policy  decision  to  make certain  groups  of  people  mandatory                                                               
reporters  of  child  abuse,  via   proposed  AS  11.56.767,  the                                                               
legislature  is  making a  policy  decision  that the  privileges                                                               
listed  in the  Alaska Rules  of Evidence  won't apply  for "this                                                               
kind  of purpose."    Therefore, the  legislature  would have  to                                                               
specifically  exempt  those  that  they don't  wish  proposed  AS                                                               
11.56.767 to apply to, just  as that provision does for attorneys                                                               
of  sex offenders  and  child  kidnappers.   She  posited that  a                                                               
statute can override a privilege in an evidence rule.                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  his question  initially had  been                                                               
whether the  title ought to  be changed  to reflect a  court rule                                                               
change,  but has  since  surmised that  that  won't be  necessary                                                               
because in-court procedures won't be affected.                                                                                  
                                                                                                                                
CHAIR McGUIRE concurred.                                                                                                        
                                                                                                                                
MS. PARKES  pointed out that  the privileges in the  Alaska Rules                                                               
of Evidence  pertain to evidence admissibility  in court, whereas                                                               
proposed AS  11.56.767(b) is essentially a  policy call exempting                                                               
a group  of people from  having to report certain  information to                                                               
[law enforcement agencies].                                                                                                     
                                                                                                                                
SENATOR BUNDE explained that Section  3 mandates regular periodic                                                               
polygraph  examinations as  a condition  of probation  for a  sex                                                               
offense  [as  defined in  AS  12.63.100].   Information  gathered                                                               
during these  examinations will not  be admissible in  court, but                                                               
it has  been discovered that  probationers and parolees  are more                                                               
likely   to  stay   in  compliance   with  their   conditions  of                                                               
probation/parole because they  know they will get  caught if they                                                               
lie  during a  polygraph examination;  in fact,  [statistics from                                                               
other  states  indicate]  that   compliance  improves  almost  70                                                               
percent  when  regular  periodic  polygraph  examinations  are  a                                                               
condition of probation/parole.                                                                                                  
                                                                                                                                
2:34:08 PM                                                                                                                    
                                                                                                                                
SENATOR  BUNDE  explained  that   Section  4  will  increase  the                                                               
presumptive  sentencing ranges.   For  example, under  Version F,                                                               
the presumptive  sentencing range will  be 25  to 30 years  for a                                                               
first felony conviction  of first degree sexual abuse  of a minor                                                               
under the age  of 13; will be  20 to 30 years for  a first felony                                                               
conviction of  first degree sexual abuse  of a minor 13  years of                                                               
age or  older; and  will be  25 to  35 years  for a  first felony                                                               
conviction of first degree sexual  assault or first degree sexual                                                               
abuse of  a minor if  the defendant  used a firearm,  a dangerous                                                               
instrument,  or   caused  serious  physical  injury   during  the                                                               
commission  of the  crime.   For  a second  felony conviction  of                                                               
first  degree sexual  assault or  sexual  abuse of  a minor,  the                                                               
presumptive sentencing range will be 30  to 40 years if the first                                                               
felony conviction was not for a  sexual felony, and will be 35 to                                                               
40 years if the first felony  conviction was for a sexual felony.                                                               
For a third  felony conviction of first degree  sexual assault or                                                               
first degree sexual abuse of  a minor, the presumptive sentencing                                                               
range will be  40 to 60 years if the  first two felony conviction                                                               
were not for  sexual felonies, and will be 99  years if the first                                                               
two felony conviction were for sexual felonies.                                                                                 
                                                                                                                                
SENATOR  BUNDE also  explained  that  the presumptive  sentencing                                                               
range will  be 20 to  25 years for  a first felony  conviction of                                                               
[attempt,  conspiracy, or  solicitation to  commit] first  degree                                                               
sexual abuse  of a minor under  the age of  13; will be 15  to 25                                                               
years for  attempt, conspiracy, or  solicitation to  commit first                                                               
degree sexual  abuse of  a minor  13 years of  age or  older; and                                                               
will be 25 to 35 years  for a first felony conviction of attempt,                                                               
conspiracy,  or  solicitation  to   commit  first  degree  sexual                                                               
assault or  first degree  sexual abuse  of a  minor in  the first                                                               
degree if the  defendant used a firearm,  a dangerous instrument,                                                               
or caused  serious physical injury  during the commission  of the                                                               
crime.   For a second  felony conviction of  attempt, conspiracy,                                                               
or solicitation  to commit first  degree sexual assault  or first                                                               
degree sexual abuse of a  minor, the presumptive sentencing range                                                               
will be  25 to 35  years if the  first felony conviction  was not                                                               
for a  sexual felony,  and will be  30 to 40  years if  the first                                                               
felony conviction  was for a sexual  felony.  For a  third felony                                                               
conviction  of attempt,  conspiracy,  or  solicitation to  commit                                                               
first  degree sexual  assault or  sexual  abuse of  a minor,  the                                                               
presumptive sentencing range will be 35  to 50 years if the first                                                               
two felony convictions  were not sexual felonies, and  will be 99                                                               
years  if  the  first  two felony  convictions  were  for  sexual                                                               
felonies.                                                                                                                       
                                                                                                                                
SENATOR  BUNDE  went  on  to  explain that  for  a  first  felony                                                               
conviction of second degree sexual  assault, second degree sexual                                                               
abuse  of  a   minor,  unlawful  exploitation  of   a  minor,  or                                                               
distribution  of child  pornography,  the presumptive  sentencing                                                               
range will be 5 to 15 years; will  be 10 to 25 years for a second                                                               
felony conviction  if the first  felony conviction was not  for a                                                               
sexual felony;  and will be  15 to 30  years for a  second felony                                                               
conviction  if  the first  felony  conviction  was for  a  sexual                                                               
felony.   For a third  felony conviction of second  degree sexual                                                               
assault,  second  degree  sexual   abuse  of  a  minor,  unlawful                                                               
exploitation of  a minor, or  distribution of  child pornography,                                                               
the presumptive  sentencing range will be  20 to 35 years  if the                                                               
first two  felony convictions were  not for sexual  felonies, and                                                               
will be  99 years if  the first  two felony convictions  were for                                                               
sexual felonies.                                                                                                                
                                                                                                                                
SENATOR  BUNDE  relayed  that  the last  portions  of  Section  4                                                               
stipulate  that for  a first  felony conviction  of third  degree                                                               
sexual assault,  incest, indecent  exposure in the  first degree,                                                               
possession  of  child  pornography, or  attempt,  conspiracy,  or                                                               
solicitation  to  commit sexual  assault  in  the second  degree,                                                               
second degree sexual  abuse of a minor,  unlawful exploitation of                                                               
a minor,  or distribution of  child pornography,  the presumptive                                                               
sentencing range  will be 1  to 12 years; will  be 8 to  15 years                                                               
for a  second felony  conviction if  the first  felony conviction                                                               
was not  for a sexual felony;  and will be  12 to 20 years  for a                                                               
second felony conviction  if the first felony  conviction was for                                                               
a sexual felony.   For a third felony conviction  of third degree                                                               
sexual assault,  incest, indecent  exposure in the  first degree,                                                               
possession  of  child  pornography, or  attempt,  conspiracy,  or                                                               
solicitation  to  commit sexual  assault  in  the second  degree,                                                               
second degree sexual  abuse of a minor,  unlawful exploitation of                                                               
a minor,  or distribution of  child pornography,  the presumptive                                                               
sentencing range will  be 15 to 25 years if  the first two felony                                                               
convictions were  not for sexual  felonies, and will be  99 years                                                               
if the first two felony convictions were for sexual felonies.                                                                   
                                                                                                                                
SENATOR  BUNDE  offered his  understanding  that  by the  time  a                                                               
person  has  been  convicted for  sexual  felonies  three  times,                                                               
he/she has already  created hundreds of victims.   He then turned                                                               
attention  to Section  5  of  Version F,  and  indicated that  it                                                               
stipulates  that "habitual  criminals" must  serve half  of their                                                               
sentence before  they may file  a motion for  sentence reduction.                                                               
Section 6  stipulates that [certain] habitual  criminals shall be                                                               
sentenced  for  99  years.     Section  7  provides  that  sexual                                                               
offenders shall serve  mandatory periods of probation  as part of                                                               
sentencing; currently, some sexual  offenders will chose to serve                                                               
their full sentence in order  to avoid supervision when released.                                                               
The proposed probation  periods are 15 years  for an unclassified                                                               
sexual felony, 10  years for a class A or  class B sexual felony,                                                               
and 5  years for a class  C sexual felony; again,  these shall be                                                               
mandatory periods of probation subject  to all current conditions                                                               
of  probation as  well as  -  with the  passage of  Sections 3  -                                                               
regular  periodic   polygraph  examinations,   and  may   not  be                                                               
suspended or reduced.                                                                                                           
                                                                                                                                
SENATOR  BUNDE  turned  attention  to   Sections  8  and  9,  and                                                               
characterized  them as  housekeeping alterations  intended ensure                                                               
that all sex offenders register  [regardless of whether they were                                                               
convicted  of violating  former laws  rather than  current laws].                                                               
Section 10  - similar  to Section 3  - mandates  regular periodic                                                               
polygraph  examinations  as  a  condition of  parole  for  a  sex                                                               
offense as defined in AS 12.63.100.                                                                                             
                                                                                                                                
2:41:27 PM                                                                                                                    
                                                                                                                                
SENATOR BUNDE  relayed that  Section 11  increases the  penalty -                                                               
from  a class  B  misdemeanor  to a  class  A  misdemeanor -  for                                                               
failing to report [suspected incidences  of child abuse, neglect,                                                               
or child pornography]; this provision  applies to those currently                                                               
required  to report  such  incidences.   Section  12 conforms  AS                                                               
11.41.438(a) with the change proposed  via Section 1.  Section 13                                                               
requires the  Department of Public  Safety (DPS) to  provide [the                                                               
public] with  sex offender registry information  on the Internet,                                                               
specifically  information  regarding   how  to  compile  registry                                                               
information  in a  geographic format.   A  portion of  Section 14                                                               
extends the provisions  of Sections 3 and 10 to  apply to persons                                                               
on  probation or  parole for  offenses committed  before, on,  or                                                               
after the  effective date of  this Act.   Sections 15 and  16 are                                                               
effective date clauses.                                                                                                         
                                                                                                                                
SENATOR  BUNDE  said  that   although  the  sentencing  increases                                                               
proposed  in Version  F are  substantial,  if there  is even  one                                                               
mitigator,  the judge  can  still chose  to  reduce the  sentence                                                               
substantially.   Version  F is  setting a  societal norm  and the                                                               
legislature  must  be  able  to   provide  the  courts  with  the                                                               
justification that  some of  the proposed  sentences ought  to be                                                               
equal   or  greater   than  the   sentence  for   the  crime   of                                                               
manslaughter,  for   example.    He  reiterated   that  the  only                                                               
guarantee that a  sexual offender will not reoffend  is to remove                                                               
him/her from  society, adding that  the cost  of doing so  is one                                                               
that the legislature should pay.                                                                                                
                                                                                                                                
2:45:29 PM                                                                                                                    
                                                                                                                                
GINGER  BRYANT,   South  Peninsula   Haven  House,  said   it  is                                                               
imperative   that  the   bill  passes,   and  remarked   how  her                                                               
organization often ends up serving a  new set of victims from the                                                               
same perpetrator.   Currently, since  there is no way  to confirm                                                               
that a  perpetrator isn't  re-offending when  he/she is  put back                                                               
into  a  community, he/she  will  "just  slip under  the  wires."                                                               
Instituting  polygraph   examination  requirements,  establishing                                                               
[longer] sentences, and holding  perpetrators accountable are the                                                               
only  ways to  protect people.   She  characterized HB  353 as  a                                                               
vital bill that needs to be passed.                                                                                             
                                                                                                                                
2:47:37 PM                                                                                                                    
                                                                                                                                
LESLIE A.  HIEBERT, Attorney at  Law, testified in  opposition to                                                               
the sentencing  [provisions of the] bill.   She said that  in her                                                               
practice  as  lawyer  she  has  seen the  facts  of  a  case  get                                                               
distorted  in predictable  ways.   She offered  her understanding                                                               
that presumptive  sentencing ranges were established  in order to                                                               
avoid disparate sentences for  similarly situated offenders, even                                                               
sex  offenders.    But when  the  presumptive  sentencing  ranges                                                               
become  too broad,  then some  similarly situated  offenders will                                                               
instead  get sentences  that are  widely  different, a  situation                                                               
that the legislature  was attempting to avoid.   For example, one                                                               
offender  might be  sentenced for  5 years  and another  might be                                                               
sentenced for 15 years for the same behavior.                                                                                   
                                                                                                                                
MS. HIEBERT  also pointed out,  for example, that  sexual assault                                                               
in the  second degree  - currently  a class  B felony  - includes                                                               
merely  touching someone  without  his/her consent,  and in  such                                                               
cases it usually  comes down to each party  arguing whether there                                                               
actually was consent  and then the jury believing  one party over                                                               
the other; with  such a wide sentencing range,  she posited, even                                                               
innocent people  will avoid  having their case  go before  a jury                                                               
because  of the  likelihood that  they will  get convicted.   She                                                               
offered  her belief  that the  increased  sentences [proposed  by                                                               
Version  F]  is  just  a  reflection  of  society's  interest  in                                                               
punishing  sex offenders,  but  is  written in  such  a way  that                                                               
innocent  people  will be  caught  up  in  it  and might  end  up                                                               
accepting a non-sex  offense felony conviction in  order to avoid                                                               
a  sex  offense felony  conviction  and  all if  its  "draconian"                                                               
consequences.                                                                                                                   
                                                                                                                                
MS. HIEBERT  offered an example of  just such a case,  adding her                                                               
belief  that the  proposed  increases  will result  in  a lot  of                                                               
unintended consequences.   Furthermore,  prosecutorial discretion                                                               
will    also   result    in   disproportionate    representation,                                                               
investigation, [sentencing],  and incarceration.   In conclusion,                                                               
she  opined that  there  is  no reason  to  increase the  current                                                               
presumptive  sentencing ranges,  since  they  were only  recently                                                               
adopted and so haven't been tried and tested.                                                                                   
                                                                                                                                
2:52:49 PM                                                                                                                    
                                                                                                                                
PHILLIP E.  SHANAHAN, Attorney at  Law, said that the  problem he                                                               
sees with  the bill is  that although  the goal of  punishing sex                                                               
offenders more harshly could be a  viewed as a laudable goal, the                                                               
term  "sex offender"  as currently  defined  includes people  who                                                               
have committed very, very many  different types of behaviors.  He                                                               
went on to say:                                                                                                                 
                                                                                                                                
     I'm not  here to tell  you that every  person convicted                                                                    
     of a  sex offense is  not a dangerous person,  but it's                                                                    
     also very, very incorrect  to assume that anybody who's                                                                    
     convicted  of a  sex offense  therefore poses  a future                                                                    
     danger.  The repeat  sex offender cases, perhaps those,                                                                    
     yeah  -  I'm not  here  to  tell  you that  they  don't                                                                    
     deserve lengthy  jail terms.   What I  want to  talk to                                                                    
     you  more  about  is  the   sentences  that  have  been                                                                    
     proposes for first time  offenders.  Traditionally, our                                                                    
     sentencing  scheme has  punished  first time  offenders                                                                    
     with  lengthy jail  time only  for  the most  egregious                                                                    
     acts  -   the  penetration,   the  actual   rapes,  the                                                                    
     molestations, the child molester cases. ...                                                                                
                                                                                                                                
     The bill  ... [addressing the U.S.  Supreme Court case,                                                                    
     Blakely v.  Washington, 124 S.  Ct. 2531  (U.S., 2004)]                                                                  
     then came along last year  - just this same legislature                                                                    
     - ... and  it ... changed the old scheme  and ... added                                                                    
     some minimum  penalties for the  lower level  conduct -                                                                    
     the class B  and the class C felonies.   That went into                                                                    
     effect  in March  of 2005.    We're now,  here, ...  11                                                                    
     months later,  and that bill, itself,  marked ... quite                                                                    
     a change  over the past  25-plus years in Alaska.   Our                                                                    
     presumptive  sentencing laws  didn't punish  first time                                                                    
     offenders  for the  lower level  conducts with  lengthy                                                                    
     jail terms.                                                                                                                
                                                                                                                                
     The "Blakely bill" actually, in  and of itself, changed                                                                  
     that.  And I heard  Senator Bunde mention that this has                                                                    
     been  worked  on  long  before   any  of  the  national                                                                    
     concern, but  how long before  could it have  been when                                                                    
     this same legislature  just less than one  year ago did                                                                    
     a  complete  overhaul  of  our  sentencing  scheme  and                                                                    
     adopted  new  sentences  for  all  or  our  ...  felony                                                                    
     crimes.   And  what ...  this bill  now does  is change                                                                    
     those  sentences  that  were just  increased  in  March                                                                    
     without any  chance to really  see if they're  going to                                                                    
     have  any   positive  impact,  and  [they   are  being]                                                                    
     quadrupled in some cases, doubled  in some cases, [and]                                                                    
     in  other  cases just  ...  [having]  huge ranges  that                                                                    
     didn't exist before.                                                                                                       
                                                                                                                                
MR. SHANAHAN continued:                                                                                                         
                                                                                                                                
     I  think  ... [we're  falling]  into  the trap  of  ...                                                                    
     comparing the  rapist to the  person who tries  to grab                                                                    
     ... [his] girlfriend's breast  through her clothing and                                                                    
     she says no and then he  does it again.  Is that person                                                                    
     in the  same category as  a person who  violently rapes                                                                    
     somebody?  I  don't think anyone's going  to argue that                                                                    
     they  are, but  this bill  seems to  assume that;  this                                                                    
     bill talks  about increasing penalties for  rapists and                                                                    
     child  molesters,  but in  fact  the  numbers that  are                                                                    
     being  applied  to  first offenders  convicted  of  the                                                                    
     lower  level  crimes  really doesn't  make  much  of  a                                                                    
     distinction between the conduct.                                                                                           
                                                                                                                                
     And I  agree with  some of  the testimony  earlier that                                                                    
     ...  the broad  ranges  seem a  bit  different than  we                                                                    
     would expect.   In the class C felony  offense, just to                                                                    
     ... briefly  touch on  that one,  that can  include the                                                                    
     attempt to  touch the breast through  the clothing, and                                                                    
     now we've  got a range  of 1  to 12 years  for somebody                                                                    
     who could  be 50 years old  and have done not  a single                                                                    
     thing wrong in  their life.  And  our sentencing scheme                                                                    
     has always addressed people's history  by saying if you                                                                    
     have a  bad history  you get  treated worse  later, but                                                                    
     what  this bill  does is  it  takes away  that sort  of                                                                    
     policy  and  it  seems  to  say,  "If  you're  a  first                                                                    
     offender and  you do  anything that  constitutes, quote                                                                    
     unquote,  'a  sex crime,'  you  must  have hundreds  of                                                                    
     victims and you must be  very, very dangerous, so we're                                                                    
     going to lock you up for a really long time."                                                                              
                                                                                                                                
     That's a  dramatic change in  our law.  Again,  I don't                                                                    
     quarrel  with the  idea of  presumptive terms  that are                                                                    
     steep for people  who are repeat sex  offenders, but we                                                                    
     shouldn't  assume  that  every person's  a  repeat  sex                                                                    
     offender  when they  have their  first  offense.   And,                                                                    
     finally,  Senator  Bunde   also  mentioned  that  [the]                                                                    
     finding of a  single mitigator gives the  judge lots of                                                                    
     ability to  reduce penalties, but a  true understanding                                                                    
     of  the  presumptive  sentencing bill  will  defy  that                                                                    
     statement. ...  First of all, the  number of mitigators                                                                    
     are extremely limited, and they  continue to be limited                                                                    
     over  the years  - more  and more  of them  get deleted                                                                    
     from the statutes  - and also, depending  upon what the                                                                    
     start  of the  presumptive term  is, a  judge can  only                                                                    
     reduce  the penalties  so  far.   Just  as an  example,                                                                    
     [for]  the five-year  minimum on  the  first [class  B]                                                                    
     felony ...,  the lowest a judge  could go is two  and a                                                                    
     half years with [a] mitigating factor.                                                                                     
                                                                                                                                
MR. SHANAHAN, in conclusion, asked  the legislature to take these                                                               
issues into account when looking  at the sentences for first time                                                               
offenders.                                                                                                                      
                                                                                                                                
CHAIR McGUIRE  asked Mr. Shanahan  to submit written  comments as                                                               
well.                                                                                                                           
                                                                                                                                
2:58:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GARA  expressed   discomfort   that  neither   a                                                               
representative  from  the  Public  Defender Agency  (PDA)  nor  a                                                               
representative from the Office of  Public Advocacy (OPA) has been                                                               
present to comment on bills such as HB 353.                                                                                     
                                                                                                                                
[Chair McGuire turned the gavel over to Representative Wilson.]                                                                 
                                                                                                                                
REPRESENTATIVE GARA  offered his  understanding that for  a first                                                               
time sex  offender, the current presumptive  sentencing range for                                                               
an unclassified felony is 8 to  12 years but with aggravators can                                                               
be increased to 99 years,  and the current presumptive sentencing                                                               
range for a class  A felony is 5 to 8  years but with aggravators                                                               
can be increased to 30 years.  He  noted that class B and class C                                                               
felonies cover  a huge  range of conduct,  one type  being sexual                                                               
contact, which  is defined as touching  someone through clothing.                                                               
The current presumptive sentencing ranges are  2 to 4 years for a                                                               
class B felony  and 1 to 2  years for a class C  felony, but with                                                               
aggravators  can   be  increased  to   20  years  and   10  years                                                               
respectively.  Thus the ranges  are not the full picture; instead                                                               
they  merely provide  the judge  with sentencing  parameters when                                                               
aggravators are not  part of the equation.   Furthermore, some of                                                               
the  aggravators that  justify a  higher sentence  include crimes                                                               
that cause  physical injury and  crimes that  manifest deliberate                                                               
cruelty  to another  person, and  since  both of  those types  of                                                               
crimes constitute rape  as [society] thinks of  it, the sentences                                                               
can be increased to the maximum.                                                                                                
                                                                                                                                
REPRESENTATIVE GARA  then asked  whether aggravating  factors are                                                               
part of the main trial.                                                                                                         
                                                                                                                                
MR.  SHANAHAN said  it  is hard  to say  whether  they would  be,                                                               
because  the  "Blakely  bill"  is  so  new.    According  to  his                                                             
experience, however,  even though aggravating factors  do have to                                                               
be  proven  to  a  jury  because of  the  Blakely  decision,  the                                                             
practice in  many courts has been  to do a "bifurcated  trial" if                                                               
the  aggravating  factor  includes  testimony  that  wouldn't  be                                                               
relevant to  the "guilt  or innocence"  phase of  the trial.   In                                                               
such  instances, the  jury wouldn't  hear  information about  the                                                               
aggravating factor until after -  and only after - deciding guilt                                                               
or innocence, and  then the jury - usually the  same jury - would                                                               
be asked to  decide whether the state has  proven the aggravating                                                               
factor beyond a reasonable doubt.                                                                                               
                                                                                                                                
3:04:04 PM                                                                                                                    
                                                                                                                                
SIDNEY  K. BILLINGSLEA,  Attorney at  Law, relayed  that she  has                                                               
been a  criminal defense lawyer in  Alaska for 20 years,  and has                                                               
substantial experience in defending  people who have been accused                                                               
of sex  crimes, not all  of whom have been  guilty.  And  some of                                                               
them she'd  had the  good fortune to  represent before  they were                                                               
charged, and  so she  was able prevent  them from  being formally                                                               
accused of  committing a  crime.   Sometimes innocent  people are                                                               
accused of  committing a sexual  offenses, and  those accusations                                                               
are the most easily made  accusations, but are the most difficult                                                               
to  defend because  all a  person has  to do  is say  is that  it                                                               
happened, and there is generally  no physical evidence available,                                                               
no physical  injury available, and  no witnesses  available other                                                               
than  the  two  individuals  involved in  the  alleged  behavior;                                                               
therefore accusations  can be easily made,  for whatever reasons,                                                               
by a person  desiring to be a victim of  these offenses, and they                                                               
are very,  very traumatic, difficult, expensive,  and frightening                                                               
to defend.                                                                                                                      
                                                                                                                                
MS. BILLINGSLEA surmised that the  value decision the legislature                                                               
is attempting  to make via this  legislation is that as  a policy                                                               
of  the  state,  the  decision  will  be  to  "warehouse"  sexual                                                               
offenders  regardless  of  their  potential  for  rehabilitation,                                                               
regardless, to some degree, of  the level of offense they commit.                                                               
To  do that,  she  also surmised,  requires  that the  government                                                               
dehumanize its  own citizens to a  degree - "you are  choosing to                                                               
put a  citizen in the position  that you ... would  put an object                                                               
to  be  stored  in  a  box   or  a  warehouse  and  instead  just                                                               
[incarcerating] them in prison."  She went on to say:                                                                           
                                                                                                                                
     As a value  decision, I think that  paying attention to                                                                    
     the factors that cause sexual  offenses may be a better                                                                    
     way to  look.  Some  of the  factors that cause  ... at                                                                    
     least two-thirds  of the sexual offenses  are substance                                                                    
     abuse.   I recognized very  clearly that that's  not an                                                                    
     excuse  for  [sexual  offenses] but  it  is  a  causing                                                                    
     factor. ...  If you address the  substance abuse, which                                                                    
     is rampant -  especially in rural Alaska  but the urban                                                                    
     areas are no  exception these days - ...  you may very,                                                                    
     very well find yourself with  a steep decline in sexual                                                                    
     offenses. ... One  of the [other] large  ... factors in                                                                    
     causing people to  grow up to be sex  offenders is that                                                                    
     they were once victims of sexual offense.                                                                                  
                                                                                                                                
     So you're  taking yesterday's victim, that  you express                                                                    
     a  great deal  of  concern  - and  rightly  so -  about                                                                    
     today,  and  then saying,  "Okay,  now  that you're  an                                                                    
     adult and you've committed an  offense ..., now you are                                                                    
     somebody that  we are  no longer  going to  regard with                                                                    
     compassion;  we are  going to  regard  you as  somebody                                                                    
     that  needs to  be warehoused  for potentially  ... the                                                                    
     rest of you're productive years."                                                                                          
                                                                                                                                
3:07:57 PM                                                                                                                    
                                                                                                                                
MS. BILLINGSLEA opined  that the bill will  greatly impact native                                                               
Alaskans and  rural Alaskans for  a couple of reasons,  one being                                                               
the high level of substance  abuse in small towns.  Additionally,                                                               
there  are some  cultural  norms in  rural  communities, such  as                                                               
younger people being involved with  older people - for example, a                                                               
14-year old  and an 18-year old,  or a 15-year old  and a 19-year                                                               
old - and if someone comes  in from outside of that community and                                                               
sees this type of relationship occurring, it could result in the                                                                
older person being charged with a class A or class B felony.                                                                    
She went on to say:                                                                                                             
                                                                                                                                
     I  don't  think  increased  sentences  will  deter  sex                                                                    
     offenses any more than the  death penalty deters murder                                                                    
     - ...  that's proved.   I  think that  what might  be a                                                                    
     good idea  to think about,  if you really want  to take                                                                    
     the great  leap forward on  this bill, is put  a sunset                                                                    
     on it.   And [then],  if you  don't have a  decrease in                                                                    
     sexual offenses  in "fill in  the blank years"  - three                                                                    
     years,  five  years  -  if  you  don't  have  a  marked                                                                    
     decrease in  the percentage of sex  offenses prosecuted                                                                    
     in this state, you should  sunset it.  There's an idea.                                                                    
     Otherwise,  you're just  running  up  your fiscal  note                                                                    
     warehousing people  and you're  not having  the desired                                                                    
     effect.                                                                                                                    
                                                                                                                                
3:10:09 PM                                                                                                                    
                                                                                                                                
SUE CHRISTIANSEN, Bearing Sea Women's Group, said that as a                                                                     
victim of incest, she wanted to provide the committee with                                                                      
information about her personal experience:                                                                                      
                                                                                                                                
     I don't  know exactly  when it began,  but I  would say                                                                    
     around 8 years old and it  went on until I was 14 years                                                                    
     old.   The point of  this was  that it warped  my whole                                                                    
     outlook on life.   It was not until I  was 47 years old                                                                    
     ... and  got sober that  I realized the impact  of what                                                                    
     it had  done to my life.   It gave me  a life sentence.                                                                    
     I am now  almost 62 years old, I  have never forgotten,                                                                    
     I have  never gotten over  it, and  I never will.   The                                                                    
     point is,  I'm managing it.   But why are we  so intent                                                                    
     on  focusing  on the  poor  old  perpetrators, and  not                                                                    
     valuing and protecting our innocent children?                                                                              
                                                                                                                                
     Now, we've  lumped all  these kids  in there,  from the                                                                    
     17-year  olds or  16-year olds,  and then  we've lumped                                                                    
     them in with the 13-year olds.   I want a separate bill                                                                    
     that manages our children from  birth to 13, the target                                                                    
     age  of pedophiles.   If  you penetrate  a 2-year  old,                                                                    
     it's a  lot different  than penetrating a  17-year old,                                                                    
     and that's where we get  all muddled up in here because                                                                    
     people are looking  at it and going, "Well,  she was 14                                                                    
     or 15."   But  nobody can  quibble with  children under                                                                    
     13.   Or even  under 10  - how  about limiting  it [to]                                                                    
     between the  ages of birth  and 10?   I've seen  ... 3-                                                                    
         year olds and 5-year olds with STD's [sexually                                                                         
     transmitted diseases].                                                                                                     
                                                                                                                                
       Now, there is no excuse for that culturally or ...                                                                       
     [otherwise], not now and not ever. ... Thank you very                                                                      
     much.                                                                                                                      
                                                                                                                                
[Representative Wilson returned the gavel to Chair McGuire.]                                                                    
                                                                                                                                
3:12:14 PM                                                                                                                    
                                                                                                                                
MEGHAN GAUGHAN,  Tundra Women's Center  (TWC), said she  would be                                                               
testifying in  support of  HB 353.   She said  she would  like to                                                               
echo the  alarms regarding  the high  numbers of  sexual assaults                                                               
and sexual  abuse of  minor cases  in Alaska.   In her  work, she                                                               
relayed,  she sees  the same  offenders  over and  over and  over                                                               
again, and  many of the same  victims - victimized from  the same                                                               
perpetrators  and from  different  perpetrators.   She  concurred                                                               
with  the  notion  that  no  one wants  to  see  victims  getting                                                               
victimized more than once.  She  said that in Bethel and outlying                                                               
villages she  is meeting  people who  are afraid  to be  in their                                                               
home  towns because  offenders are  being released  early or  are                                                               
only serving short sentences; this  places the responsibility for                                                               
a victim's safety  back on the victims and their  families.  This                                                               
sends  the  wrong  message  to the  community,  that  being  that                                                               
perpetrators can  get away with  sexual offenses  without serving                                                               
much jail  time.  This also  puts the blame back  on the victims,                                                               
she opined.   She  thanked [the legislature]  for its  efforts to                                                               
provide consistency  in sentencing and  its efforts to  place the                                                               
responsibility for these crimes on the offenders.                                                                               
                                                                                                                                
3:14:27 PM                                                                                                                    
                                                                                                                                
DANIEL  E. LIBBEY,  Attorney at  Law,  relayed that  he would  be                                                               
testifying in opposition to the  sentencing provisions of HB 353.                                                               
He  offered  that there's  definitely  not  a disagreement  about                                                               
serious sexual offenders, but he  believes that as a group, first                                                               
time  offenders  can  include  those  who  are  innocent  of  the                                                               
charges.    He offered  an  example  of  a  case in  Juneau  that                                                               
involved a  man who was charged  with sexual abuse of  a minor in                                                               
the first degree based on his  position as a babysitter of a girl                                                               
under the age  of 13.  The girl later  admitted that her friend's                                                               
mother  had "put  her up  to  the trial  testimony," and  further                                                               
discovery revealed  that the  mother was  seeking custody  of the                                                               
girl so as  to receive money from the state.   The judge reversed                                                               
the conviction  and the district attorney  dismissed the charges,                                                               
but not before the defendant had  served more than three years of                                                               
jail time.                                                                                                                      
                                                                                                                                
MR. LIBBEY offered his belief  that that case illustrates that in                                                               
a  number of  these type  of cases  there simply  is no  physical                                                               
evidence, there are  no other witnesses, and there  is no injury;                                                               
in such  cases, it simply  "becomes the evidence of  a testifying                                                               
witness  alone," and  the  jury system  doesn't  provide for  the                                                               
ability  to  recognize wrongful  charges  as  often as  might  be                                                               
preferred.    Under  the proposed  legislation,  someone  in  the                                                               
aforementioned defendant's  position would  be subject to  a jail                                                               
sentence of  25 to 30 years,  and that case was  a very difficult                                                               
case  to defend.   Mr.  Libbey suggested  that members  take such                                                               
examples   into  account   by  providing   a  lower   presumptive                                                               
sentencing  range for  first time  felony offenders  and allowing                                                               
the judge to examine the credibility  of the evidence so as to be                                                               
able  reverse  a  conviction  in cases  where  people  have  been                                                               
wrongfully charged.                                                                                                             
                                                                                                                                
MR.  LIBBEY noted  that under  [Version F],  a mitigating  factor                                                               
might  only reduce  a sentence  to 12  years, adding  that it  is                                                               
frightening  to   think  that   someone  in   the  aforementioned                                                               
defendant's situation would  be sentenced to 12 years.   He asked                                                               
that the  legislature consider changing  the bill for  first time                                                               
offenders such that  they would be given the  opportunity to "get                                                               
on the right  track," suggesting that such people are  not in the                                                               
same class  as serious offenders,  who should be targeted  by the                                                               
bill.                                                                                                                           
                                                                                                                                
MR.  LIBBEY,  in  response  to questions,  provided  a  few  more                                                               
details about the aforementioned case.                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG   mentioned  the  crime   of  suborning                                                               
perjury.                                                                                                                        
                                                                                                                                
3:21:26 PM                                                                                                                    
                                                                                                                                
MICHAEL A.  MOBERLY, Attorney  at Law, relayed  that he  would be                                                               
speaking in opposition  to "Version F."  Mentioning  the issue of                                                               
proportionality,  he offered  his belief  that the  focus of  the                                                               
bill  is to  target a  small  subset of  offenders and  determine                                                               
whether such  broad sweeping increases  in the  overall sentences                                                               
is absolutely necessary.  He opined  that it may not be necessary                                                               
to make  the proposed  changes, since people  haven't yet  had an                                                               
opportunity to see  the effects of the "2003 and  2005 changes to                                                               
the  law,"   characterizing  those  recent  changes   as  already                                                               
addressing  those  offenders  that  everyone  is  most  concerned                                                               
about;  those recent  changes  include  parole ineligibility  for                                                               
repeat offenders, and enhanced sentences.                                                                                       
                                                                                                                                
MR. MOBERLY  opined that those  recently enacted  provisions need                                                               
to be given  an opportunity to demonstrate whether  they have the                                                               
effect the proposed bill is  aiming for.  Furthermore, the fiscal                                                               
impacts of  the recently  passed legislation  are not  yet known,                                                               
and  so  it will  be  difficult  to  gage the  additional  fiscal                                                               
impacts  of  the proposed  legislation.    He said  that  another                                                               
concern of  his centers  on the  proposed language  pertaining to                                                               
the failure  to report someone  who has  not registered as  a sex                                                               
offender  or  child  kidnapper.     Although  certain  groups  of                                                               
professionals and  licensed individuals have  mandatory reporting                                                               
requirements  placed on  them,  "common  lay citizens"  generally                                                               
don't have those  same obligations under the law.   Therefore, he                                                               
remarked, he does  not believe that notifying  the authorities of                                                               
a  person's  failure  to  register is  necessarily  the  type  of                                                               
conduct that regular citizens should be obligated to undertake.                                                                 
                                                                                                                                
MR. MOBERLY,  in conclusion, characterized the  bill as premature                                                               
and  unnecessary,  and  suggested  that  the  legislature  should                                                               
postpone any  action on  these issues  until after  it has  had a                                                               
chance to review the effects of the recently enacted changes.                                                                   
                                                                                                                                
3:24:59 PM                                                                                                                    
                                                                                                                                
CYNTHIA KARLSON,  Women in  Safe Homes (WISH),  said that  she is                                                               
testifying in  support HB 353,  and that she has  the perspective                                                               
of both a  victim and a victim's advocate.   She relayed that she                                                               
has  seen the  effects  of  sexual assault,  on  both adults  and                                                               
minors, adding that  [the legislature] needs to  send the message                                                               
that society will no longer  tolerate such crimes.  Sex offenders                                                               
reoffend when they  are released from jail, the  effects of their                                                               
crimes on  the victims are long  lasting, and so they  need to be                                                               
held accountable.   A victim  must go through  counseling, he/she                                                               
will have to  learn how to trust other people  again, and some of                                                               
the  damage done  by sexual  offenders is  lifelong, leaving  the                                                               
victim to pick up the pieces.                                                                                                   
                                                                                                                                
MS. KARLSON  said:  "Those of  us in Ketchikan want  this bill to                                                               
pass.    We cannot  any  longer  let  sex offenders  continue  to                                                               
reoffend and reoffend.   Our children are precious to  us, and we                                                               
need  to hold  [sexual offenders]  ... accountable.  ... A  light                                                               
sentence sends a  message to the victim that  what happened isn't                                                               
that bad."   When victims go to court, they  have to relive their                                                               
assaults all over again, and so  to have offenders only get light                                                               
sentences  makes  victims  lose  trust in  the  criminal  justice                                                               
system and question whether it is worth the effort to go to                                                                     
trial.                                                                                                                          
                                                                                                                                
[HB 353, Version F, was held over.]                                                                                             
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 3:28 p.m.                                                                 

Document Name Date/Time Subjects