Legislature(1997 - 1998)
04/28/1998 02:09 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 28, 1998
2:09 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 242(FIN)
"An Act providing for the forfeiture of good time sentence credits
of sex offenders who fail to successfully complete sex offender
treatment programs."
- MOVED CSSB 242(FIN) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 323(FIN) am
"An Act relating to sexual offenses, to those who commit sexual
offenses, and to registration of sex offenders; amending Rule
6(r)(2), Alaska Rules of Criminal Procedure; and providing for an
effective date."
- HEARD AND HELD
HOUSE BILL NO. 452
"An Act relating to registration, disclosures, and reports by
certain nonprofit corporations."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 242
SHORT TITLE: FORFEIT GOOD TIME OF SOME SEX OFFENDERS
SPONSOR(S): SENATOR(S) WARD, Taylor, Lincoln, Kelly, Duncan,
Pearce, Sharp, Mackie, Donley
Jrn-Date Jrn-Page Action
1/16/98 2217 (S) READ THE FIRST TIME - REFERRAL(S)
1/16/98 2217 (S) JUD, FIN
1/26/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
1/27/98 2317 (S) JUD RPT 2DP 1NR
1/27/98 2317 (S) DP: TAYLOR, MILLER NR: PEARCE
1/27/98 2317 (S) FISCAL NOTE (COR)
1/27/98 2317 (S) ZERO FISCAL NOTES (ADM-2)
4/02/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
4/03/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
4/06/98 3156 (S) FIN RPT CS 5DP SAME TITLE
4/06/98 3156 (S) DP: PEARCE, SHARP, PHILLIPS,
4/06/98 3156 (S) PARNELL, DONLEY
4/06/98 3156 (S) ZERO FN (COR)
4/06/98 3156 (S) PREVIOUS ZERO FNS APPLY (ADM-2)
4/07/98 (S) RLS AT 11:25 AM FAHRENKAMP RM 203
4/07/98 (S) MINUTE(RLS)
4/07/98 3180 (S) RULES TO CALENDAR 4/7/98
4/07/98 3180 (S) READ THE SECOND TIME
4/07/98 3180 (S) FIN CS ADOPTED UNAN CONSENT
4/07/98 3181 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/07/98 3181 (S) READ THE THIRD TIME CSSB 242(FIN)
4/07/98 3181 (S) COSPONSOR(S): LINCOLN, KELLY, DUNCAN,
4/07/98 3181 (S) PEARCE, SHARP, MACKIE, DONLEY
4/07/98 3181 (S) PASSED Y18 N- E1 A1
4/07/98 3182 (S) TAYLOR NOTICE OF RECONSIDERATION
4/07/98 3182 (S) RECON TAKEN UP SAME DAY UNAN CONSENT
4/07/98 3182 (S) PASSED ON RECONSIDERATION Y19 N- E1
4/07/98 3184 (S) TRANSMITTED TO (H)
4/08/98 2920 (H) READ THE FIRST TIME - REFERRAL(S)
4/08/98 2920 (H) JUDICIARY, FINANCE
4/23/98 (H) JUD AT 1:00 PM CAPITOL 120
4/23/98 (H) MINUTE(JUD)
4/28/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 323
SHORT TITLE: SEX OFFENSES & OFFENDER REGISTRATION
SPONSOR(S): SENATOR(S) PEARCE, Taylor, Lincoln, Kelly, Donley,
Miller, Green
Jrn-Date Jrn-Page Action
2/16/98 2529 (S) READ THE FIRST TIME - REFERRAL(S)
2/16/98 2529 (S) JUD, FIN
3/11/98 (S) JUD AT 1:45 PM BELTZ ROOM 211
3/11/98 (S) MINUTE(JUD)
3/12/98 2842 (S) JUD RPT CS 3DP 2NR SAME TITLE
3/12/98 2842 (S) DP: TAYLOR, MILLER, PEARCE
3/12/98 2842 (S) NR: ELLIS, PARNELL
3/12/98 2842 (S) FISCAL NOTE TO SB (COR)
3/12/98 2842 (S) INDETERMINATE FN TO SB (ADM)
3/12/98 2848 (S) COSPONSOR: TAYLOR
3/24/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/25/98 (S) RLS AT 12:55 PM FAHRENKAMP RM 203
3/25/98 (S) MINUTE(RLS)
3/25/98 2988 (S) FIN RPT CS 4DP 2NR SAME TITLE
3/25/98 2988 (S) DP: PEARCE, SHARP, PHILLIPS,
TORGERSON;
3/25/98 2988 (S) NR: DONLEY, ADAMS
3/25/98 2988 (S) PREVIOUS FN (CORR)
3/25/98 2988 (S) PREVIOUS INDETERMINATE FN (ADM)
3/26/98 3008 (S) RULES TO CALENDAR 3/26/98
3/26/98 3010 (S) READ THE SECOND TIME
3/26/98 3010 (S) FIN CS ADOPTED UNAN CONSENT
3/26/98 3010 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/26/98 3010 (S) READ THE THIRD TIME CSSB 323(FIN)
3/26/98 3010 (S) COSPONSOR(S): LINCOLN, KELLY, DONLEY,
3/26/98 3010 (S) MILLER, GREEN
3/26/98 3011 (S) PASSED Y16 N- E4
3/26/98 3011 (S) COURT RULE(S) SAME AS PASSAGE
3/26/98 3011 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/26/98 3011 (S) KELLY NOTICE OF RECONSIDERATION
3/26/98 3011 (S) RECON TAKEN UP SAME DAY UNAN CONSENT
3/26/98 3011 (S) HELD ON RECONSIDERATION TO 3/30
CALENDAR
3/30/98 3050 (S) RECON TAKEN UP - IN THIRD READING
3/30/98 3050 (S) RETURN TO SECOND FOR AM 1 UNAN
CONSENT
3/30/98 3050 (S) AM NO 1 ADOPTED UNAN CONSENT
3/30/98 3051 (S) AUTOMATICALLY IN THIRD READING
3/30/98 3051 (S) RETURN TO SECOND FOR AM 2 UNAN
CONSENT
3/30/98 3051 (S) AM NO 2 ADOPTED UNAN CONSENT
3/30/98 3052 (S) AUTOMATICALLY IN THIRD READING
3/30/98 3053 (S) PASSED ON RECONSIDERATION Y20 N-
3/30/98 3053 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/30/98 3053 (S) COURT RULE(S) SAME AS PASSAGE
3/30/98 3055 (S) TRANSMITTED TO (H)
3/31/98 2807 (H) READ THE FIRST TIME - REFERRAL(S)
3/31/98 2807 (H) JUDICIARY, FINANCE
4/28/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
CRAIG JOHNSON, Legislative Administrative Assistant
to Senator Jerry Ward
Alaska State Legislature
Capitol Building, Room 423
Juneau, Alaska 99801
Telephone: (907) 465-4921
POSITION STATEMENT: Presented CSSB 242(FIN) on behalf of sponsor.
JAYNE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Testified in support of CSSB 242(FIN) and
CSSB 323(FIN) am.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward, Room 501
Juneau, Alaska 99801
Telephone: (907) 586-3650
POSITION STATEMENT: Testified in support of CSSB 242(FIN).
KRISTY TIBBLES, Researcher
for Senator Drue Pearce
Alaska State Legislature
Capitol Building, Room 518
Juneau, Alaska 99801
Telephone: (907) 465-4747
POSITION STATEMENT: Presented CSSB 323(FIN) am on behalf of
sponsor.
GLEN KLINKHART
Anchorage Police Department
1901 Jarvis Avenue
Anchorage, Alaska 99515
Telephone: Not provided
POSITION STATEMENT: Testified in support CSSB 323(FIN) am,
and answered questions pertaining to
the legislation.
DEAN GUANELI, Chief Assistant Attorney General
Legal Services Section - Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Answered questions on CSSB 323(FIN) am.
ACTION NARRATIVE
TAPE 98-75, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 2:09 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and James.
Representatives Rokeberg and Croft arrived at 2:10 p.m., and
Representative Berkowitz arrived at 2:11 p.m.
CSSB 242(FIN) - FORFEIT GOOD TIME OF SOME SEX OFFENDERS
CHAIRMAN GREEN announced the first item of business would be CSSB
242(FIN), "An Act providing for the forfeiture of good time
sentence credits of sex offenders who fail to successfully complete
sex offender treatment programs."
Number 0059
CRAIG JOHNSON, Legislative Administrative Assistant to Senator
Jerry Ward, Alaska State Legislature, presented the bill on behalf
of the sponsor, extending Senator Ward's apology for being unable
to attend because of another committee meeting. Mr. Johnson
explained that SB 242 calls for the forfeiture of good time credits
for those who do not complete their court-ordered treatment
programs for sexual offenses; those credits can be for up to one-
third of a sentence for people who are "model citizens" during
their prison terms. He said it is a simple bill that will cause
people to take their training.
Number 0130
REPRESENTATIVE BRIAN PORTER asked if there is any way a prisoner
can try but fail.
MR. JOHNSON said the Senate had reviewed this program as part of
its outcome-based budgeting. They have asked the department to
look more aggressively at how it measures success and monitors
this, and they expect that in the future. However, attendance is
the measuring stick now; if prisoners don't attend, they don't
pass.
Number 0226
REPRESENTATIVE CON BUNDE said successful completion would be
difficult to judge as to whether any behavior had been modified.
MR. JOHNSON agreed. He told members this began the previous year
in the Senate, with the creation of a study of cultural relevance
for inmates. One criticism of this bill is that it discriminates
against Natives because the training is not necessarily geared to
them. Mr. Johnson said this past week, the Department of
Corrections had completed a training program for all of their
people involved in these types of programs, and they are starting
to address culturally relevant issues; that is the first step. The
second step is that they found in their study that since 1997,
there has been a zero recidivism rate for the 400 or so that have
successfully completed this training. Mr. Johnson concluded, "So
once we have the program addressing those that need it, the program
works. The third part of that equation is, 'Now get people in the
program.' And that is what this legislation does."
Number 0342
REPRESENTATIVE ERIC CROFT expressed concern about someone who fails
to complete a first program but completes a second. He pointed out
that page 1, line 9, says fails to successfully complete a program.
MR. JOHNSON replied that passing or failing is pretty much at the
discretion of the commissioner. At this point, attending a program
is success. Therefore, if a prisoner was ordered to take a program
and took three programs but only graduated from one, the
commissioner could deem that as success. He said ultimately, the
success of this type of program is whether a prisoner is back in
jail; a prisoner must be released before success can be determined.
Number 0544
REPRESENTATIVE CROFT said it seems that part of the difficulty is
it is phrased in the negative, but he isn't sure yet which way it
should read.
Number 0596
REPRESENTATIVE NORMAN ROKEBERG inquired about the current status of
the sex offender rehabilitation program, given the conversion of
Hiland Mountain Correctional Center to a women's facility. He said
that is where the primary sex offender program was in place. He
asked what the Department of Corrections is doing about that.
MR. JOHNSON replied that there are programs in several of the
institutions now, including Lemon Creek Correctional Center and the
Palmer Correctional Center. He said they are looking at expanding
those facilities to house the treatment programs.
Number 0650
REPRESENTATIVE ROKEBERG said the inability of the department to
provide the programs should not be an impediment to this.
MR. JOHNSON replied, "And it isn't." He referred committee members
to lines 11 and 12, which read, "by the commissioner and the
program has been made available to the prisoner by the department."
He said this bill would not affect a model prisoner in a situation
where a program was not available.
Number 0692
REPRESENTATIVE BUNDE said he reads "a program" to mean simply a
program, not a specific program in a series of offerings, and if a
person used bits and pieces but completed what is considered a sex
offender program, that would suffice.
CHAIRMAN GREEN concurred with that reading.
Number 0730
REPRESENTATIVE JEANNETTE JAMES said it seems to be defined by the
one program that the person is ordered to participate in, and there
is already a definition somewhere that says what the prisoners are
supposed to do. She said she feels comfortable with it, noting the
testimony that just attending means successful completion.
Number 0774
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, came forward and
stated support for SB 242. She told members, "As people know,
Alaska has one of the highest rates of sexual assault in the
nation, and sex offenders are one of the toughest groups of
offenders to rehabilitate. We know that we can't cure sex
offenders. At the very best - very best - they can be ... taught
to control their violent impulses. We think that this bill adds to
the tools that the Department of Corrections, as well as the state
of Alaska, has in holding offenders accountable for meeting the
requirements of their sentence, and we fully support it."
Number 0800
REPRESENTATIVE ETHAN BERKOWITZ asked whether there is enough
program space to accommodate all the offenders currently.
MS. ANDREEN said she doesn't know, but she knows that the
Department of Corrections has a couple of programs available in the
facilities. In the past, there has been a waiting list; she said
she would defer to the department to address that.
Number 0843
REPRESENTATIVE CROFT referred to AS 33.16.220, revocation of
parole, and noted that the board may revoke parole if the person
has violated an order to participate in or comply with the
treatment plan. He said there is a "may" for everybody else, but
it is mandatory for sex offenders. That may make sense, but it is
not really adding a new tool so much as making it mandatory for a
specific crime where there is a high recidivism rate and a tough
rehabilitation task. He asked whether that is accurate.
Number 0889
MS. ANDREEN said that would also have to be deferred to the
Department of Corrections. She added, "My understanding is that if
the court orders that an offender complete a program, that the
Department of Corrections does withhold their good time if they do
not complete that program. My understanding is ... they have less
clear guidelines around it if someone's just been ordered to
participate."
Number 0939
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and
Sexual Assault, came forward to testify, stating that the network
supports the bill. She said their concerns about spacing and how
it was worded had been resolved. She agreed that sex offenders are
not the easiest to rehabilitate, and she expressed support for
whatever mechanisms can be put in place to keep them from
reoffending.
Number 0984
REPRESENTATIVE BERKOWITZ asked whether Ms. Hugonin knows if there
is enough program space to accommodate all the prisoners.
MS. HUGONIN said she didn't know.
Number 1042
REPRESENTATIVE BUNDE made a motion to move CSSB 242(FIN) out of
committee with individual recommendations and with the attached
fiscal note(s).
CHAIRMAN GREEN asked whether there was any objection. Hearing
none, he announced that CSSB 242(FIN) was moved from the House
Judiciary Standing Committee.
CSSB 323(FIN) am - SEX OFFENSES & OFFENDER REGISTRATION
Number 1080
CHAIRMAN GREEN announced the final item of business would be CSSB
323(FIN) am, "An Act relating to sexual offenses, to those who
commit sexual offenses, and to registration of sex offenders;
amending Rule 6(r)(2), Alaska Rules of Criminal Procedure; and
providing for an effective date."
Number 1114
KRISTY TIBBLES, Researcher for Senator Drue Pearce, Alaska State
Legislature, came forward to present the bill on behalf of the
sponsor. She read from the sponsor statement as follows:
"The Alaska penalty for distribution of child pornography is a
class C felony and is not more than five years. Law enforcement
officers are encountering problems in trying to prove distribution,
and offenders are often charged with or pled down to possession of
child pornography, a class A misdemeanor offense with a penalty of
not more than one year in prison, unless the offender is convicted
of more than one count and receives a consecutive sentence. Senate
Bill 323 increases the offense for possession of child pornography
to a class C felony, and the offense for distribution to a class B
felony, punishable by not more than ten years in prison.
"Senate Bill 323 also creates the offense of indecent exposure in
the first degree if the offender knowingly masturbates within the
observation of a person under 16 years of age. This crime will be
a class C felony offense. The bill makes the existing offense of
indecent exposure, indecent exposure in the second degree. The
penalty for this offense is a class A misdemeanor when committed
before a person under 16 years of age, and a class B misdemeanor
when committed before a person 16 years or older.
"Senate Bill 323 requires sex offender registration for the
offenses of indecent exposure in the first degree, indecent
exposure in the second degree if committed before a minor under the
age of 16 for the second offense, and possession of child
pornography. Currently, only offenders who are convicted for
distribution of child pornography are required to register.
"The existence [and] distribution of child pornographic images
creates the potential for many types of harm in the community and
presents a clear and present danger to all children. Strengthening
the penalties ... for these crimes sends a clear message that the
degradation and exploitation of our children will not be tolerated.
Agencies in support of Senate Bill 323 include the Department of
Public Safety, the Alaska Peace Officers Association, the Anchorage
Police Department, the UAF police, STAR, the Juneau Police
Department, and the UAA police."
Number 1222
REPRESENTATIVE BERKOWITZ asked what changes the bill makes to the
elements of proving distribution cases.
MS. TIBBLES answered that one addition, in Section 6, is language
that allows possession of 100 or more pieces of child pornographic
material as prima facie evidence of distribution.
REPRESENTATIVE BERKOWITZ referred to Section 9 on page 3 and said
there is no statute of limitations for pursuing a criminal.
MS. TIBBLES explained that is current statute. She stated that
Section 9 adds the offense of indecent exposure in the first degree
to that statute.
REPRESENTATIVE BERKOWITZ said that he understands that. He
referred to Section 1 and said there is a civil statute. You could
conceivably be in a position where you're prosecuting a criminal
case after the civil period has expired. Representative Berkowitz
said if the state is allowed to pursue a criminal case, then a
victim ought to be permitted to pursue a civil case, even if the
civil statute of limitations might have lapsed.
CHAIRMAN GREEN said that is current law.
Number 1333
REPRESENTATIVE ROKEBERG questioned what the rationale was of
raising possession of child pornography from a misdemeanor to a
class C felony.
MS. TIBBLES said it was raised at the request of the Alaska Peace
Officers Association. She explained that it was originally raised
to a class B felony and the Department of Law asked that it be
reduced to a class C felony because of the penalty of it being a
class a misdemeanor.
REPRESENTATIVE ROKEBERG said, "The way I read the bill is if you
... have one photograph depicting anything that might be
interpreted to be child pornography which, as I understand it - I
have not seen it, but maybe even be able to download it off the
World-Wide Web I think. So if you had a youngster who did that,
brought it up on the web and downloaded it onto the printer you'd
be committing a felony. Is that what we're intending to do here?
I mean it seems a little radical to raise it all the way up to that
(indisc.--coughing) one piece or something. If you're in
possession of it, you're committing a felony whether your brandish
it or whatever, you're committing a felony."
Number 1405
REPRESENTATIVE BUNDE said he realizes the potential is there for
bringing a charge, but would they choose to bring a charge and
would there be a conviction?
REPRESENTATIVE ROKEBERG said, "If you seize it, you're busted and
if you got it then you're guilty." He said he would like to know
what constitutes child pornography.
CHAIR GREEN asked, "This was because of Anchorage PD (Police
Department) you said?"
MS. TIBBLES answered in the affirmative and noted that Officer Glen
Klinkhart is signed up to testify.
REPRESENTATIVE BUNDE referred to trying to define child pornography
and said he came across information where there was a suntan lotion
ad of a young girl playing on the beach with a puppy playfully
pulling on her diaper or swimming trunks. That was child
pornography and was relished as a pin-up. Representative Bunde
said that has to be a difficult, as all pornography is, definition.
REPRESENTATIVE PORTER indicated he just reviewed the definition and
that depiction would not be child pornography.
REPRESENTATIVE BUNDE said it is used to stimulate people even
though it was not originally created for that purpose.
Number 1620
REPRESENTATIVE ROKEBERG said, "Mr. Chairman, I was just reading the
definition here and it comes to mind -- there is here subsection
(6), 'the lewd exhibition of the child's genitals'." He said he
remembers a classic Victorian piece of landscape architecture of a
water fountain with a young child urinating water from a well.
Therefore, if you were in possession of that, you would be subject
to a class C felony." Representative Rokeberg said his major
concern is that if you are in possession of any of items listed in
the bill -- if you buy it on the newsstand and you're in
possession of it, it might be a felony.
REPRESENTATIVE BUNDE said, "Magazines and newspapers that are
specifically designed for that information."
REPRESENTATIVE PORTER noted they aren't lawfully for sale.
REPRESENTATIVE CROFT said, "I guess I'm confused between unlawful
exploitation, which is, in this state, getting a child to do this -
and possession of wherever produced. Section 11.41.455, which was
the definition we were worried about for lewd exhibition." He
stated he can understand unlawful exploitation. There is a
distinction between getting a minor to do this and being in
possession of pictures of it.
CHAIRMAN GREEN informed Mr. Klinkhart that the committee is
concerned about page 3, which speaks to the fact that we now have
gone to a class C felony. He asked what would constitute the
possession of enough material that would require such a stiff
penalty. He cited the example of downloading a picture off of the
Internet. He also asked, "Would your interpretation of this be
that if somebody had a picture that would possibly be considered a
pornographic ... picture of a 17-year-old, if that would constitute
a felony?"
GLEN KLINKHART, Anchorage Police Department, testified via
teleconference from Anchorage. He referred to policy procedures
that they go through on state and federal levels and said most of
the district attorneys that he has spoke to on different cases he
has been involved with are all in agreement that you need to have
more than just one. One could be constituted as a mistake. Mr.
Klinkhart referred to a case he was involved in where a woman was
looking on the Internet for a recipe. She clicked on a picture and
up came a photograph of a nude female, approximately 12 years old.
He said in order for the woman to report it to him, he had to go to
her house and view it on the computer. He said that was accidental
on the part of the woman looking for the recipe. She was right to
report it to the police. Mr. Klinkhart said the department then
started a case involving the person who posted it. In speaking
with several prosecutors he works with, they don't just want one or
two, they want ten photographs. Finding more than a couple has
never been a problem in the cases he has worked. [Due to the
teleconference connection, part of Mr. Klinkhart's testimony was
indiscernible].
MR. KLINKHART said there was a gentleman who was trading pictures
like baseball cards. That is how they are being distributed and
generally, they don't buy them. They actually have whole series of
different photographs that have been taken from the 1950s, 1960s
and the 1970s. He indicated that the old photographs that are
around 20 or 30 years ago have become collector items.
REPRESENTATIVE BUNDE asked Mr. Klinkhart if in his experience
nobody has ever been prosecuted for possessing fewer than ten
photographs.
MR. KLINKHART responded in the affirmative. He said he currently
has, on his case-load, four or five cases. Last year, they've
actually charged and have begun (indisc.) proceedings for others
over the last year. There are usually more than ten pictures
involved. He stated they will find one or two pictures which leads
them to more. Mr. Klinkhart indicated most instances involve the
Internet.
Number 2073
REPRESENTATIVE BERKOWITZ said it has been indicated that there has
been some proof problems with some cases. He asked Mr. Klinkhart
where he thinks the hard parts are of proof are in distribution
cases.
MR. KLINKHART pointed out that distribution is somewhat of a
problem because like drugs, you have to do a buy. You have to be
able to get into the organization or at least be able to do
(indisc.). With child pornography, that is something they have to
be really careful of. You can somewhat control the money that you
give people by serial numbers going from one person to another. He
said, "Our big fear and problem with child distribution of child
pornography that if you become unlawfully involved in ...
(indisc.), unfortunately, we (indisc.) provide them the money for
-- in most cases they trade photographs of children. And I,
myself, and I've talked with our chief of police here in Anchorage
and other law enforcement agencies, we don't want to get into that
mainly because if I go send a photograph to somebody, and basically
set up some sort of (indisc.), within seconds they can turnaround
and distribute that to literally thousands of people. And I think
that that situation we don't want to get into. I could definitely
show you over the time period that I was investigating these cases
that these people are not selling them, they are trading them.
Last night I was on the Internet and did a search for Alaskans,
people here in Alaska, who are on these different areas. Usually
they're called news groups and chat groups. I was on the Interest
relay chat last night, you can watch how people who are within
Alaska getting onto these national sites and are entering areas
called places like mom/daughter sex, dad/daughter sex, family sex.
And going into these areas -- and they're trading. You can
literally see these people setting up their computers and allowing
people to upload - download files. That, in itself, could be
relatively good information because as that could show, 'Hey, I got
a computer out here, I want to send you a file, you send me a
file.' And that sort of thing works to help prove distribution.
But after the fact, once we get in there, unless we can catch you
at the keyboard, which can be very difficult in (indisc.) cases.
So, as anybody knows, you reach over and hit the power key makes it
very difficult to be able to show that that person actually was
actually doing a transmission. They look at it like drugs,
somebody who have four pounds of cocain. That's not for ... ones
own use."
Number 2199
REPRESENTATIVE BERKOWITZ referred to the quantity measure of 100
and asked if that measure has been used in other jurisdictions or
federally.
MR. KLINKHART responded, "Not that I'm aware of ... but that's not
to say that it can't." He indicated that Alaska has sort of taken
the lead, nationally, in these kind of cases. Mr. Klinkhart
referred to the Alaska sex offender registry on the computer said
and indicated that sex offenders absolutely hate it. A lot of
other states have been asking Alaska how we did it. He discussed
a case he worked on and said it related to a gentleman who is what
they call "a boy lover." They don't call themselves pedophile but
do call themselves "boy lovers" or "girl lovers." He noted those
people don't think that people who love children, sexually, should
be on the sex offender list. Mr. Klinkhart said that we're just
telling those people, "If you're going to be collecting this stuff
and trading it that we're not going to allow it."
Number 2265
REPRESENTATIVE CROFT referred to Victorian era pictures or
depictions of naked children and asked Mr. Klinkhart how he
distinguishes, in the prosecutions, the adjective "lewd" that is
in Section 11.41.455, "the lewd exhibition of the child's
genitals." He questioned what a non-lewd exhibition of the child's
genitals is.
MR. KLINKHART explained that the general rule that they have
attempted to apply is they look at the photograph and question what
the main focus. Is it a nude child and is it kind of a nature sort
of a photograph? Is the focus point of the photograph the
gentiles? He stated he has seen enough that when he looks at a
photograph he can pretty much tell such the legs are spread or the
child looks down at the area.
REPRESENTATIVE CROFT asked Mr. Klinkhart if there has been
situations where he has decided not to prosecute because it hasn't
appeared to be focused on the genitalia and hasn't appeared to be
lewd. It appeared to be something else.
MR. KLINKHART explained that he wouldn't say that they haven't
decided to prosecute as there are currently several open cases that
are in the grey area. He said he is waiting for more evidence. He
will hold those cases, continue to watch the suspect and monitor
certain activities. There are eight other things that fall into
that which include older photographs and etchings. It's not enough
to have a drawing. A lot of people are surprised to find out that
drawings and writing doesn't fit into the child pornography
(indisc.).
Number 1412
REPRESENTATIVE CROFT asked, "Are those standards, for what is lewd
and what is not, written down somewhere - the things that you
analyze in making that determination?"
MR. KLINKHART explained that he has been using the federal
guidelines as those guidelines are a little bit more straight into
specifically looking at the focus point being the genitalia. The
state uses the words "lewd" and "lascivious" which are very broad.
REPRESENTATIVE CROFT asked Mr. Klinkhart to send him a copy of the
federal guidelines. He asked if the federal guidelines are
regulation or statute.
MR. KLINKHART indicated it is in statute. He said he would forward
the guidelines to the committee.
REPRESENTATIVE CROFT said, "The reason we've increased these
penalties to such a point is we're always tying it to a specific
child having to have gone through this. So you're point before
about stories or cartoons or whatever - the reason we elevate these
penalties is because I see even in the..."
TAPE 98-75, SIDE B
Number 0001
REPRESENTATIVE CROFT continued, "...minor having gone through this.
Is that right?"
MR. KLINKHART responded, "That's correct. Not only be able to find
the minor, however, we are seeing some folks, who think that
they're not happy with some of the stuff that's available out there
are starting to manufacture child pornography. They're going out
and assaulting children and photographing it into their computer.
One of the things where the cases that I've done have started out
as strictly child porn cases and have reason to believe people were
even trading or having possession of it. We have ... how should I
tell you, in every case that I've come across, I have reason to
believe that those same people have, in the past, or currently are
sexually assaulting children." Mr. Klinkhart said when he worked
with their "crimes against children" detective, he has found that
people who are sexually assaulting children are often times
involved in child pornography. He said there seems to be a
definite connection.
Number 0035
REPRESENTATIVE ROKEBERG asked if in any of the cases Mr. Klinkhart
has been involved in has it ever been asserted an affirmative
defense about whether a person was knowingly in possession or not.
MR. KLINKHART indicated a person ha to knowingly locate child
pornography and they have to go through several steps to find it,
and then they take it from their computer and the put it somewhere
else, either on their computer or on an external disk. Some people
have gone so far as to sort and organize it. Knowingly has never
been a problem, especially in some cases where they have to
literally go through hundreds of photographs.
REPRESENTATIVE ROKEBERG referred to the term "lascivious" and said
he doesn't see it in statute.
MR. KLINKHART indicated he didn't bring any of his information with
him.
REPRESENTATIVE ROKEBERG asked if there are other statutory
citations where lascivious is used conjunctively with lewd.
MR. KLINKHART responded, "I think you're thinking of the federal
guidelines which is kind of why were here because we have to -- in
order to get these guys charged as a felony, we have to go through
the federal. So I've actually (indisc.) of going federally with
some of these."
Number 0133
REPRESENTATIVE ROKEBERG suggested that if the standard for
possession was increased to 10 or 12 items, would that hinder the
department's ability to prosecute the offenders?
MR. KLINKHART said he doesn't believe so. He said the only thing
is that you get into those people who are going to save "nine here,
nine there," and what not. He noted the federal attorneys have
asked for nine or ten, (indisc.) show a pattern. That goes back to
"knowingly." One or two could be an accident. Three or four could
be in that grey area.
REPRESENTATIVE ROKEBERG asked Mr. Klinkhart if it would help him
do his work if the crime were raised from a class A misdemeanor to
a class C felony.
Number 0181
MR. KLINKHART said in speaking with other officers, he believes
raising the class would do a couple of things. It would let people
in Alaska know that this is a serious crime. He said not only do
we have people who are assaulting children and photographing them,
but they trade those photographs. He continued to give testimony
which was indiscernible on the tape.
Number 0278
REPRESENTATIVE CROFT stated he supports the legislation and
believes it is the right approach. He said, "I'd like to take that
federal definition of what is lewd and give us more guidance on it
and I'd like to get that and see if it fits into here so that we
can know, in that area, what it is and what it isn't. I don't want
to delay the bill, but I don't know how quickly I can get that and
get it turned around in to a proposal."
CHAIRMAN GREEN asked Mr. Klinkhart if he is going to fax the
information. He also asked if it is more than one page.
MR. KLINKHART responded that he will have to find it and noted it
is back at the police station.
REPRESENTATIVE ROKEBERG asked, "Christy [Ms. Tibbles], when you
looked at this, did you consider any kind of a two-tier system on
this possession? (Indisc.) like the first offense would be a
misdemeanor and then there after be a penalty. Did you ever
consider that?"
Number 0317
MS. TIBBLES said they didn't consider that in the beginning. She
noted she did speak to Mr. Klinkhart about the amount of
photographs possessed and, like he stated, it's hard to draw the
line. If you have ten, why is nine okay?
REPRESENTATIVE ROKEBERG said he thinks that creates a loophole.
REPRESENTATIVE BUNDE referred to the definition of "lewd" and said
if Representative Croft felt that was necessary and wanted to offer
that as a floor amendment, he would co-sponsor it.
REPRESENTATIVE PORTER stated he is hesitant to fix things that
aren't broke. He said the penalty is being increased in existing
statute with an existing definition. If there haven't been
prosecutorial with establishing it, he isn't anxious to start any.
Number 0357
REPRESENTATIVE CROFT stated that we haven't had prosecutorial
problems because good officers, like Mr. Klinkhart, have been
referring to the federal definitions. That is probably proper but
not required by the statute. The very thing that Mr. Klinkhart is
doing is what Representative Croft wants to make sure is done in
that there be some kind of a definition for the standards. The
very fact that an officer has to look some place other than the
Alaska Statutes seems to be an indication that there is a problem.
He was filling that whole properly with the federal definition.
Number 0398
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, came before the
committee to testify in support of CSSB 323(FIN) am. It is an
important piece of legislation and the link between child
pornography and child abuse is much too prevalent for us to ignore.
CHAIRMAN GREEN referred to testimony from Mr. Klinkhart regarding
there being a reference to federal guidelines. He asked Mr.
Guaneli if he finds that necessary in prosecution or is there
enough in statute.
Number 0419
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section - Juneau, Criminal Division, Department of Law, came before
the committee. He stated it sounds like, from what Mr. Klinkhart
said, there really isn't much of a problem in terms of establishing
what pictures are so bad that they constitute child pornography.
He said although federal definitions might be helpful for purposes
of law enforcement and guiding investigations, he isn't convinced
that we have a particular problem with these cases. He said, "It
sounds like they're getting enough pictures that people are willing
to come in an admit -- I don't know of cases that have actually
gone to trial where people want any of those pictures shown to the
jury. I think they're probably going to come in and cut whatever
deal they can with the prosecution. So I'm not aware of any
problems. It seems as though that particularly the language in the
exploitation of minors statutes about the lewd exhibition, and all
the rest, probably provides enough guidance in terms of the
investigators choosing which pictures fall within ... those
parameters. But without having ... seen the federal guidelines, I
don't want to say for certain, but it doesn't strike me as though,
from what occurred that it's necessary."
CHAIRMAN GREEN referred to the picture of the girl with the puppy
pulling at her bathing suit and said it is certainly different than
some of the other descriptions that have been indicated.
MR. GUANELI responded in the affirmative.
Number 0485
REPRESENTATIVE BERKOWITZ said Mr. Klinkhart testified that he
thought that their might be good reason to have statewide standards
for these types of crimes. He said it seems to him that
Representative Croft's concept of incorporating the federal
regulations, that Mr. Klinkhart is using in Anchorage, might be of
some assistance, particularly in the smaller jurisdictions as you
don't have officers that have the capacity to specialize in
different crimes.
MR. GUANELI responded that it might be helpful from a law
enforcement standpoint, but he isn't certain that it necessarily
needs to be written into statute. It is something that he believes
the law enforcement community, if they feel that those are
appropriate guidelines, could certainly circulate. He said that
whenever you use words to describe conduct or to describe conduct
or something like this, there is always going to be grey areas or
some vagueness. He said, "I think it's like one supreme court
justice said about obscenity, 'You know it when you see it.' And
I think the experienced officers, I think, have that ability."
REPRESENTATIVE BERKOWITZ said, "The cases we've all heard reference
to, though they're based out Anchorage, and Eagle River and that
area, which seems to indicate either the rest of the state doesn't
suffer this problem or else isn't equipped to prosecute it. And if
we were to implement some standards that would allow officers,
throughout the state, to pursue these cases, it could be of some
assistance."
MR. GUANELI informed the committee that he isn't disputing that it
might be of some assistance. He thinks that perhaps what the
problem may be is that Anchorage has an experienced officer who has
been trained to seek this out. He said he recently received a
notice for further training for other officers in detecting child
pornography and other computer-type offenses. The more training
that's available might be part of the solution. Mr. Guaneli stated
he isn't objecting to taking a look at them. He is just
questioning whether it's absolutely necessary.
Number 0602
REPRESENTATIVE PORTER some years back when this area of the law was
first being identified as a serious problem, some of these kinds of
considerations at the municipal level were looked at. He noted
that while he was the chief of police, the municipal assembly spent
days writing definitions and running them back and forth against
case law in the district attorney's office. It is no simple task.
If it is that we have successfully prosecuted with the definitions
and understandings of the elements of these crimes as they are
currently stated in the books, he would be very cautious about
interrupting it. He cautioned that if it's not broke, let's not
fix it.
REPRESENTATIVE ROKEBERG said it would be changed by raising the
punishment and, also, because of the sex offender requirement,
another layer is being added.
CHAIRMAN GREEN explained the offense is being changed, but not the
determination that constitutes it.
REPRESENTATIVE ROKEBERG said, "I'm concerned about the planting of
material, the lack of knowingly being in possession, no pattern or
anything else here that could be used with -- if there is a
breakdown in prosecutorial restructuring then there could be a
prosecution and would be warranted into a felony situation.
So...."
REPRESENTATIVE CROFT said he doesn't know whether the case law has
further described the word "lewd" to give it more legal depth so
that we know some of the things Mr. Klinkhart was talking about,
undue focus on the genitalia and other factors that might be looked
at. He stated he does think if it doesn't have it, it needs some.
The word "lewd" is too subjective for a class B and class C felony.
Number 0790
MR. GUANELI explained that there used to be a statute in Alaska
called, "Lewd and Lascivious Acts Toward a Child." It was repealed
in the 1980 revision of the criminal code, which gave us all our
current criminal law. He stated that he doesn't believe that there
is any Alaska case law, except from the 1970s, that talks about
what lewd is. He indicated he would review that get back to the
committee.
REPRESENTATIVE CROFT said, "We don't have to hold up this bill for
that discussion, but I'll look for that material from the officer
and that information from Mr. Guaneli and see whether it needs more
definition or not. It is -- both Representative Porter and
Rokeberg are right. It's not changing the elements, but it is
upping the price pretty substantially ... so it could reasonably
increase our concern that we've got the proper definition in there.
But it doesn't mean that we have slow this (indisc.)."
CHAIRMAN GREEN said, "Well, if you can get that and feel that's
important enough to offer an amendment tomorrow, we could take up
five minutes of tomorrow's agenda and either pass it with or
without that type of a change."
[CSSB 323(FIN) am was held over]
ADJOURNMENT
Number 0874
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:15 p.m.
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