03/22/2006 02:09 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| HB414 | |
| SB20 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 22, 2006
2:09 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
COMMITTEE CALENDAR
HOUSE BILL NO. 414
"An Act relating to allowing a parent or guardian of a minor to
intercept the private communications of the minor and to consent
to an order authorizing law enforcement to intercept the private
communications of the minor."
- MOVED CSHB 414(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 20(JUD)
"An Act relating to offenses against unborn children."
- HEARD AND HELD
HOUSE BILL NO. 439
"An Act relating to authorizing the state to join with other
states entering into the Interstate Insurance Product Regulation
Compact and authorizing the compact to supersede existing
statutes by approving standards, rules, or other action under
the terms of the compact."
- BILL HEARING POSTPONED TO 3/24/06
HOUSE BILL NO. 308
"An Act relating to false caller identification."
- BILL HEARING POSTPONED TO 3/24/06
HOUSE BILL NO. 325
"An Act relating to post-conviction DNA testing; and amending
Rule 35.1, Alaska Rules of Criminal Procedure."
- BILL HEARING POSTPONED TO 3/24/06
PREVIOUS COMMITTEE ACTION
BILL: HB 414
SHORT TITLE: INTERCEPTION OF MINOR'S COMMUNICATIONS
SPONSOR(S): REPRESENTATIVE(S) KOTT
02/01/06 (H) READ THE FIRST TIME - REFERRALS
02/01/06 (H) HES, JUD
02/14/06 (H) HES AT 3:00 PM CAPITOL 106
02/14/06 (H) Moved CSHB 414(HES) Out of Committee
02/14/06 (H) MINUTE(HES)
02/17/06 (H) HES RPT CS(HES) 4DP 1NR 2AM
02/17/06 (H) DP: GARDNER, KOHRING, SEATON, WILSON;
02/17/06 (H) NR: CISSNA;
02/17/06 (H) AM: ANDERSON, GATTO
02/23/06 (H) JUD AT 10:00 AM CAPITOL 120
02/23/06 (H) Scheduled But Not Heard
02/24/06 (H) JUD AT 2:00 PM CAPITOL 120
02/24/06 (H) Heard & Held
02/24/06 (H) MINUTE(JUD)
03/15/06 (H) JUD AT 1:00 PM CAPITOL 120
03/15/06 (H) -- Meeting Canceled --
03/20/06 (H) JUD AT 1:00 PM CAPITOL 120
03/20/06 (H) -- Meeting Canceled --
03/22/06 (H) JUD AT 1:00 PM CAPITOL 120
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 AT 8:30 AM BUTROVICH 205
04/19/05 (S) Moved CSSB 20(JUD) Out of Committee
04/19/05 (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
04/20/05 (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
02/15/06 (H) Heard & Held
02/15/06 (H) MINUTE(JUD)
02/22/06 (H) JUD AT 2:30 PM CAPITOL 120
02/22/06 (H) <Bill Hearing Postponed to 2/23/06>
02/23/06 (H) JUD AT 10:00 AM CAPITOL 120
02/23/06 (H) Scheduled But Not Heard
03/15/06 (H) JUD AT 1:00 PM CAPITOL 120
03/15/06 (H) -- Meeting Canceled --
03/20/06 (H) JUD AT 1:00 PM CAPITOL 120
03/20/06 (H) -- Meeting Canceled --
03/22/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
MICHAEL O'HARE, Staff
to Representative Pete Kott
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information regarding HB 414 on
behalf of the sponsor, Representative Kott.
DAVID W. BARANOW, Attorney at Law
Law Office of David W. Baranow
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns with HB 414.
ALLEN M. BAILEY, Attorney at Law
Law Offices of Allen M. Bailey
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns with HB 414.
MICHAEL C. KRAMER, Attorney at Law
Cook, Schuhmann & Groseclose, Inc.
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to HB 414.
SENATOR FRED DYSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 414; spoke as the sponsor of SB 20.
LINDA L. LAYNE, Ph.D.
Troy, New York
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with provisions of the bill and suggested that it be
changed.
TILOMA JAYASINGHE, Esq., Staff Attorney
National Advocates for Pregnant Women (NAPW)
New York, New York
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with provisions of the bill.
ALLISON GOTTESMAN, Co-Chair
Social Action Committee
Alaska Chapter
National Association of Social Workers (NASW)
Soldotna, Alaska
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with provisions of the bill and suggested a change.
BRENDA STANFILL
Interior Alaska Center for Non-Violent Living
Fairbanks, Alaska
POSITION STATEMENT: During discussion of SB 20, expressed her
organization's concerns with the bill on behalf of herself, Kate
Axelarris, and Jessica Stossel.
CLOVER SIMON
Planned Parenthood of Alaska (PPA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with the bill and suggested a change.
JOELLE HALL
Eagle River, Alaska
POSITION STATEMENT: During discussion of SB 20, provided
comments and suggested that the bill be changed.
MICHAEL "WES" MACLEOD-BALL, Executive Director
Alaska Civil Liberties Union (AkCLU)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with provisions of the bill.
ROBIN SMITH
Alaska Pro-Choice Alliance (APCA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 20, provided
comments and suggested that the bill be changed.
KATE BURKHART
Douglas, Alaska
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with provisions of the bill.
AMANDA "MANDY" O'NEAL
Douglas, Alaska
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with the bill.
SARALYN TABACHNICK, Executive Director
Aiding Women in Abuse and Rape Emergencies (AWARE Inc.)
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 20, expressed
concerns with the bill.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 20.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 2:09:49 PM. Representatives
McGuire, Wilson, Gruenberg, Gara, Kott, Coghill, and Anderson
were present at the call to order.
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS
2:10:05 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 414, "An Act relating to allowing a parent or
guardian of a minor to intercept the private communications of
the minor and to consent to an order authorizing law enforcement
to intercept the private communications of the minor." [Before
the committee was CSHB 414(HES).]
2:10:32 PM
MICHAEL O'HARE, Staff to Representative Pete Kott, Alaska State
Legislature, sponsor, said on behalf of Representative Kott that
they've had an opportunity to research one of the issues raised
at the bill's last hearing by Representative Gruenberg, that of
how a parent's ability to intercept a minor's communication - as
provided for via HB 414 - could impact family law disputes
pertaining to divorce and child custody, and that members'
packets now contain responses from questions posed to the Alaska
Bar Association on that issue. Some responses predict unbridled
eavesdropping, recording, and interference in wholly appropriate
communications between children and visitation or custodial
parents, while others predict violations of privacy.
MR. O'HARE relayed that the sponsor has attempted to establish a
balance between the [right of] privacy and the need to protect
[Alaska's] children. Mr. O'Hare mentioned that the
aforementioned responses come from attorneys with a lot of
experience in family law, though he characterized those
responses as simply speculations regarding what might happen
should HB 414 pass. The sponsor, he noted, also requested
information from Legislative Legal and Research Services on this
issue, and the resulting memorandum [by Chuck Burnham,
Legislative Analyst, dated March 21, 2006 - included in members'
packets -] states that in the six years that a similar law in
Georgia has been in place there has been no evidence that that
law has been abused. Mr. O'Hare said he would be willing to
speculate that passage of HB 414 may actually encourage parents
involved in divorce and child custody proceedings to be civil to
each other.
MR. O'HARE said that the goal of HB 414 is to provide parents
with a way of monitoring their children without breaking the law
and without them spending time and money arguing the legality of
intercepting their communications.
[Following was a brief discussion regarding what version of the
bill was before the committee.]
The committee took an at-ease from 2:15 p.m. to 2:16 p.m.
CHAIR McGUIRE clarified that both [CSHB 414(HES)] and a
forthcoming amendment were before the committee; [later labeled
Amendment 1], that proposed amendment read [original punctuation
provided]:
Page 4, after line 5, add:
(12) "parent" means a natural person who is not
prohibited by court order from communicating with the
minor and is the minor's natural or adoptive parent of
the minor's legally appointed guardian; "parent" does
not include a person whose parental rights toward the
minor have been terminated by court order.
MR. O'HARE, in response to questions, explained that although
the original Legislative Research Report written by Mr. Burnham
- Report Number 06.130, - made use of an annotated version of
the aforementioned Georgia statute, the aforementioned follow-up
memorandum of March 21, 2006, is based on information gathered
from several databases and conversations with the state of
Georgia.
REPRESENTATIVE GRUENBERG pointed out that although the March 21,
2006, memorandum says in part, "We found no evidence that the
Georgia court system has been inundated with vicarious consent
recordings in divorce proceedings since the state's wiretapping
laws were amended in the year 2006 to allow parents to record
their child's conversations in certain circumstances", it
doesn't state what research steps were taken to arrive at that
conclusion. His concern, he relayed, is that that conclusion
could be based only on the reported cases the publisher chose to
list in the Georgia law's annotations, and therefore won't
include information found in even just "the digests," which
themselves only contain those cases in which that specific issue
was taken to the appellate court and which subsequently issued a
publishable opinion.
REPRESENTATIVE GRUENBERG said:
A lot of the opinions in most of these courts, now,
including Alaska, are ... Memorandum Orders and
Judgment; they're never published, they do not find
their way into the reported decisions at all. And
what I am saying and what these other lawyers are
saying [is] ..., what happens in the actual trials
that would never show up unless you really made an
extreme investigation of the entire Georgia bar and
the superior court benches. ... Unless [Mr. Burnham]
has done that, he does not have the kind of evidence
that these lawyers who have dozens of year's
experience have, and ... we are all unanimous in
finding problems with this.
REPRESENTATIVE GRUENBERG then mentioned that he would be making
a motion to strike "the final section of the bill and the
conforming thing" because "this" is going to find its way into
divorce courts all over the state.
CHAIR McGUIRE observed that a consensus on this issue has not
been reached.
2:20:15 PM
DAVID W. BARANOW, Attorney at Law, Law Office of David W.
Baranow - after relaying that he has two children, has sent Mr.
O'Hare an e-mail containing his comments on the bill, and that
he practices family law - assured the committee that he and
other family law attorneys are not speculating when they speak
to the issue of either intentional or inadvertent eavesdropping
occurring [in situations involving divorce and child custody].
He elaborated:
Hundreds if not thousands of times over my 26- year
career we are faced with [a] superior court judge
admonishing, ordering, [and] holding people in
contempt for intentionally interfering with telephonic
communication between children and divorced parents.
I think that the intent of this bill to provide a tool
to avoid predation on our children is laudable, and I
applaud it. From ... a family law practitioner's
perspective, it is rife with a great deal of problems
and concerns. The language of the bill itself, the
version that I was able to review, is couched in very
broad terms: "good faith", "best interests of the
child", [and] "good faith belief".
In practice what that means is that we're going to
have parents that are going to be restricting
communications. It is not speculation. I deal with
this all the time. And ... in another context,
intercepting, monitoring this kind of communication
between other third parties would be a class C felony
in our state. Why is it not the same for parents and
children? Taking it to its worst extreme: What about
the child that is abused or is being abused in the
household and the only place that they can turn is to
the noncustodial parent. If they know that their
conversations are going to be taped, monitored,
interfered with, it's a huge chilling effect on the
ability of that child to be able to relate the
problems that are going on in the home.
And certainly there are other places they can go -
teachers, medical-care providers, and the like - but
it is a mistake, in my opinion, to chill that
communication avenue for the child and the
noncustodial parent. There is abuse - it's rampant -
and I certainly would join in [Representative
Gruenberg's] opinions, here. I don't know where the
research was from; if you look at the annotations,
that's not going to tell what happens down here in the
trenches.
And that's why I wanted to take the time ... [to say]
that if this bill needs to go forward, ... I suggest
strongly that you look into the issue of custodial
parent interference with communications, and either
fashion some protection in that regard or take another
look at the practical impact of this bill. Thank you
very much.
2:23:50 PM
ALLEN M. BAILEY, Attorney at Law, Law Offices of Allen M.
Bailey, after noting that he's provided Mr. O'Hare and
Representative Gruenberg with an e-mail containing his comments,
opined that there are two problems with HB 414, adding that he
is not sure whether either of them can be easily solved. He
elaborated:
The first problem I see as a lawyer ... is that if we
have a court issuing ... what amounts to a private
search warrant to intercept the communications of
another person, the court is granting a search warrant
without probable cause to believe that a crime has
been committed, and I believe that would be ... a
violation of both the [U.S. Constitution] as well as
the Alaska State Constitution's even higher privacy
guarantees. ... I've been a lawyer in Alaska for 32
years, and the majority of my clients are victims of
domestic abuse, and there are many [children] in these
families that are also abused.
I'm concerned that an abusive parent would, in
essence, remove the ability of a child to report
domestic violence or sexual abuse that is occurring in
the home whether there has been a divorce or not.
There are many victims of domestic violence who have
not yet left their partners; some of them are too
frightened to do so because the research shows that
the likelihood of domestic violence and severe
domestic violence increases dramatically at about the
time of separation. So these may be in so called "in-
tact families" where one of the parents is abusing the
other and possibly one of the children.
This would permit such a parent to maintain absolute
control over all communications leaving the home, and
in essence enable that parent to prohibit the child
from calling for help. I think it's a bill that was
drafted for a good reason, because of problems that
have occurred across the country with minors being
victimized by people they meet through electronic
communications, but I don't think this is how that
problem is solved. Thank you.
CHAIR McGUIRE said she hopes that people can see that the bill
is motivated in part by a desire to do what's in the best
interest of the child. She asked Mr. Bailey what he would
suggest to address the perceived problem. Ought they, for
example, preclude the interception of private communications
between children and parents that are involved in custody
hearings or divorces?
2:28:30 PM
MR. BAILEY said he shares concerns about children being drawn
into inappropriate relationships and contacts via telephone or
Internet communications, but he has not been able to come up
with a solution that could be easily incorporated into the bill.
CHAIR McGUIRE, surmising that members are struggling with the
fact that the concept of the bill is in part appealing, also
acknowledged the problem as Mr. Bailey presented it.
REPRESENTATIVE GRUENBERG, referring to the Fourth Amendment and
the Alaska State Constitution's right of privacy, asked Mr.
Bailey and Mr. Baranow whether they see any constitutional
problems with Section 3 of the bill, the section that allows a
parent to intercept phone calls between a child and a third
party without a warrant.
MR. BAILEY opined that if a court is allowed to grant private
search warrants on less than probable cause to believe that a
crime is being committed, "we are in perilous constitutional
waters." If the bill were drafted to permit the issuance of
some sort of court order upon a higher degree of showing that
there is reasonable cause to believe that someone is attempting
to commit a crime against a child, then that might eliminate the
possibility of a constitutional challenge to the bill.
REPRESENTATIVE GRUENBERG indicated that he is concerned that the
language in proposed AS 42.20.320(a)(9) will allow an
interception to take place without any search warrant at all.
2:32:28 PM
MICHAEL C. KRAMER, Attorney at Law, Cook, Schuhmann &
Groseclose, Inc., noting that he is a family law attorney,
indicated that he would be testifying in opposition to HB 414
for a number of reasons. He predicted that the bill will mostly
be utilized by parents involved in separations, divorces, or
child custody battles as free rein to surreptitiously record
contacts between their child and the other parent, and result in
those recordings being used [and abused] in court without
prohibition and to children being directly involved in such
disputes. Although the bill has the stated intent of giving
parents a tool with which to protect children, it goes too far
and will cause many problems without addressing the one problem
that the bill seeks to solve.
MR. KRAMER mentioned that he also has concerns about the bill
from a civil libertarian perspective, in that it will authorize
parents to intrude upon the privacy of anyone under the age of
18; parents could routinely record conversations a child has
whether it be with the other parent or with peers or with a
counselor notwithstanding the provision precluding such. He
opined that children do have a reasonable expectation of privacy
that their phone calls will not be monitored or that their
parents will not authorize law enforcement to put a tap on their
phones and Internet e-mails; such use of HB 414 will lead to a
breakdown in trust between parents and children, thus leading
children to believe that they can't trust their government.
Although the bill has a noble purpose, he remarked, it goes too
far, erodes the constitutional rights of everyone involved, and
would be misused and abused in the legal system, particularly in
divorce and domestic violence proceedings.
REPRESENTATIVE GARA indicated that although he originally shared
Mr. Kramer's concerns, he is now leaning towards the sponsor's
view that a parent's desire to protect his/her child outweighs
the child's desire to have independence. He said he would like
it if an amendment could be crafted that would protect a child
from vindictive parents going through a divorce, but if such
parents are already at the point where they are willing to be
vindictive, then merely telling them they can't be vindictive
through recording their child's conversations with the other
parent won't make them good parents - those parents have already
crossed the line between protecting a child's best interests and
not doing so, and therefore the recording of a child's
conversations won't be the child's biggest problem. Perhaps an
amendment later on in the process will be helpful, but he is
unable to conceive of one at this time, he concluded.
2:39:27 PM
REPRESENTATIVE GRUENBERG offered his understanding that the
courts have said that as a health issue, children have a
constitutional right to certain medical procedures without
consulting with his/her parents - a right of privacy in their
own bodies so to speak. So if a child whose parents are warring
is caught in the middle because his/her telephone conversations
are intercepted, it could have a real effect on that child's
health and mental wellbeing, and therefore, from a
constitutional right of privacy point of view, it seems that the
courts would rule on this issue in the same way.
MR. BAILEY concurred, reiterating his belief that the bill will
run afoul of the privacy guarantees of both the [U.S.
Constitution] and the Alaska State Constitution. The right of
privacy is an important right not to be taken lightly.
MR. BARANOW said he would echo the comments of both Mr. Bailey
and Representative Gruenberg, that the bill would be abridging
the privacy rights guaranteed by both the [U.S. Constitution]
and the Alaska State Constitution. The point of [his concerns]
is to preserve an essential privacy link between parent and
child. He predicted that the adoption of HB 414 will generate
significant appellate litigation, and that privacy rights will
prevail.
CHAIR McGUIRE offered her recollection that the court looks at
privacy rights a bit differently when they pertain to children.
She went on to say that she keeps envisioning a situation in
which there is a predator or a drug dealer - a very real
situation that occurs all the time - in communication with one's
child, and the parent is going to want to go through the law
enforcement process in order to obtain evidence and prosecute
that person; that's the sort of situation that sways her in
favor of the bill. She offered her hope that judges and parents
will exercise some discretion.
MR. KRAMER offered his understanding that a "Glass warrant" is
routinely used in situations where the police believe that
someone is going to make an incriminating statement over the
phone; the police can go to a judge, present probable cause that
such a conversation is going to occur, and they can then record
that phone conversation pursuant to a Glass warrant. He
suggested that Glass warrants could be used as an alternative to
what's being proposed in HB 414, which he characterized as an
"entirely new invasion of privacy and abrogation of parental
rights." There are already many entirely legal tools available
for parents to monitor their children, he opined: a parent can
get a child's cell phone records, and read and review all the
web sites that the child is perusing. "I don't agree that this
bill is going to strengthen families or ... effectively prevent
criminals from contacting our children," he stated, and
reiterated his suggestion that Glass warrants could be used to
address the concerns about predators communicating with
children.
2:47:13 PM
CHAIR McGUIRE agreed, but pointed out that most parents aren't
aware of the existence of Glass warrants; furthermore, a Glass
warrant would only be suitable in situation where there is a
likelihood that the communications will be ongoing.
REPRESENTATIVE GRUENBERG suggested that one way of curing [his
and others' concerns] would be to delete section 3 - which, he
remarked, allows rampant wiretapping - and then simply focusing
on Section 1, which, in the context of a criminal case, allows
the court to consider an application asking for authorization to
intercept a communication. He indicated that he would be
willing to offer a conceptual amendment "to allow a warrant to
issue on probable cause," and to allow the [underlined] language
to constitute probable cause. In other words, if the parent, in
good faith and with an objectively reasonable belief that it's
necessary, signs an affidavit, then that "may" constitute
probable cause; leave it up to judicial discretion, but
specifically state that that may, in an appropriate case,
constitute probable cause. Recognize, however, that if there is
an emergency - for example, a parent overhears his/her child
being told by someone to meet him/her down the street and bring
a [suitcase] - then the "law of warrant-less searches" would
allow the parent to contact the police and have the police take
action. He suggested that reference to that "law," could also
be incorporated into the bill.
2:51:03 PM
SENATOR FRED DYSON, Alaska State Legislature, concurred with the
comments expressed by Representative Gara, and opined that it is
important to protect a parent's right to know what his/her
children are doing and what they're involved in. He pointed out
that some children are actually perpetrators, and so being able
to know that about one's children is valuable. He relayed a
personal example wherein unbeknownst to him a foster daughter
living in his home embezzled money from two men she was
"servicing" as a prostitute, and another situation wherein a
young girl living with his daughter was selling OxyContin at
school and in the neighborhood and was "hooking" and bringing
"johns" into his daughter's home. A parent's ability to know
about this sort of behavior, whether conducted by a foster child
or a birth child, is critical, particularly if there are younger
children in the home. He encouraged the committee to come down
on the side of letting parents have the ability to know what
their children are doing, and to realize that children
themselves will do very bad things including molesting younger
children and setting homes on fire.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 414.
2:54:01 PM
REPRESENTATIVE KOTT made a motion to adopt Amendment 1 [text
provided previously]. There being no objection, Amendment 1 was
adopted.
2:55:10 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 2: on page 1, line 8, after "order", add the words,
"based upon probable cause"; and on page 1, line 9, after,
"application," add the words, "that there is probable cause,
which may include a finding".
REPRESENTATIVE GRUENBERG explained that his intent is to specify
in the bill that the underlined language may in and of itself
constitute probable cause, that the court may find that that is
the only probable cause, and, if so, that would be legally
sufficient; the underlined language being, "a parent or guardian
of a minor has consented to the interception of a communication
of the minor in good faith and based on an objectively
reasonable belief that it is necessary for the welfare of the
minor and in the best interest of the minor or that".
CHAIR McGUIRE surmised, then, that the intent of Conceptual
Amendment 2 is to allow judicial discretion in a situation
involving a contentious divorce battle or a contentious child
custody battle.
REPRESENTATIVE GRUENBERG concurred.
REPRESENTATIVE GARA objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG, in response to a question, explained
that via Conceptual Amendment 2, the standard of probable cause
would apply as would the underlined language, and that
underlined language could be sufficient, in and of itself, to
constitute probable cause. He said the reason he is not being
more specific with the language in the bill is that he wants the
judge to be able to question the reasoning behind the request on
a case-by-case basis. In response to another question, he said
he intends for the judge to have the discretion to turn down the
request if the facts in the affidavit are insufficient, but if
it can be established via the affidavit that an interception is
necessary for the welfare of the minor and in the minor's best
interest, it will be allowed.
CHAIR McGUIRE offered her understanding, however, that
Conceptual Amendment 2 would mandate the issuance of an order
authorizing the interception of the minor's communication as
long as the application is made in good faith and based on an
objectively reasonable belief that an interception is necessary
for the welfare of the minor and in the minor's best interest.
REPRESENTATIVE GRUENBERG offered that under the bill's current
language, there is no requirement of probable cause even though
that is a constitutional requirement. The concept of probable
cause means that the jury could find, based upon the facts of
the affidavit, a certain fact. And under that constitutional
requirement, there must be judicial discretion. He said he is
only proposing to put that requirement in there, that there must
be a finding of probable cause such that there is some
underlying fact that could be supported in a court of law.
CHAIR McGUIRE said she is fine with that concept, but suggested
that Representative Kott follow how the courts end up using the
proposed language in order to see whether that use conforms to
his intent. She posited that adoption of Conceptual Amendment 2
will help the bill meet constitutional muster better and allow
for judicial discretion. She added that her intent is that as
long as all the criteria outlined in Section 1 as amended by
Conceptual Amendment 2 are met, then an order would be
authorized.
REPRESENTATIVE GRUENBERG said that is his intent as well.
REPRESENTATIVE GARA pointed out that the proposed statute
already provides for judicial discretion because language on
page 1, line 7, says "may", not "shall". He offered his belief,
however, that Conceptual Amendment 2 - specifically, the
language that is being proposed as an addition to page 1, line 9
- will allow the courts to grant wiretaps even more often than
the sponsor intends.
REPRESENTATIVE GARA suggested that Conceptual Amendment 2 be
limited to the change proposed to line 8 and not include the
change proposed to line 9.
REPRESENTATIVE GRUENBERG pointed out, though, that currently
under a Glass warrant, there could be probable cause that
doesn't involve the testimony of a parent at all, and he doesn't
want to eliminate that possibility.
3:06:51 PM
CHAIR McGUIRE asked whether there were any further objections to
Conceptual Amendment 2. There being none, Conceptual Amendment
2 was adopted.
3:07:03 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 3, to
delete the all the language beginning on page 2, line 18,
onward.
CHAIR McGUIRE sought clarification that it is Representative
Gruenberg's intent to delete the definition [provided for via
Section 4 and Amendment 1].
REPRESENTATIVE GRUENBERG indicated that he did intend to do so
because [it is his understanding] that that definition would
only apply to Title 42 as a conforming change.
CHAIR McGUIRE clarified, then, that Amendment 3 would delete
Sections 3 and 4 of HB 414.
REPRESENTATIVE KOTT objected, adding his belief that without
Sections 3 and 4 of the bill, there will still be parents
recording their children's conversation but they would be doing
so illegally. With regard to communications occurring over the
Internet, although there is software available that would allow
a parent to monitor his/her child's Internet usage, such
software would not be usable for most parents. He pointed out
that the bill was engendered by a custodial situation in which
the child's behavior was changing dramatically, and when the
parent [recorded] the conversations the child was having with
the other parent, the parent found that there was a "lot of
mischief going on," and had that gone on any longer, there would
have been irreparable psychological damage done to the child.
REPRESENTATIVE KOTT opined that from the standpoint of the
child's welfare, the parent ought to have the ability to monitor
his/her child's conversations regardless of whether they are
with a predator or the other parent.
REPRESENTATIVE GRUENBERG said he is very troubled about the
constitutional issue raised by the bill, but acknowledged that
perhaps the situation that engendered the legislation did
warrant the recording of the child's conversations. He
suggested that perhaps one way of solving the issue would be to
have some sort of requirement that there be an application to
the court for an order - perhaps ex parte, perhaps not - either
in advance or at least immediately after a recording is taken -
in other words, asking that the court issue a retroactive order
- authorizing the recording.
REPRESENTATIVE KOTT said he would be willing to work with
Representative Gruenberg on that idea before the bill goes to
the House floor.
REPRESENTATIVE GRUENBERG withdrew Amendment 3.
3:15:24 PM
REPRESENTATIVE ANDERSON moved to report CSHB 414(HES), as
amended, out of committee [with individual recommendations and
the accompanying fiscal notes].
CHAIR McGUIRE stated that there was an objection for the purpose
of discussion.
REPRESENTATIVE WILSON asked that Representative Kott also give
consideration to possibly adding language that would prevent
situations in which these recordings are used to put the child
in the middle of a divorce [or custody battle], because she
would like protect the child from such misuse.
REPRESENTATIVE GRUENBERG suggested that Representative Wilson
assist he and the sponsor in developing such language.
REPRESENTATIVE KOTT pointed out that regardless of whether the
bill progresses, there will still be parents who will put their
children in the middle of their fights with each other.
3:17:51 PM
REPRESENTATIVE WILSON removed her objection.
CHAIR McGUIRE asked whether there were any further objections to
the motion to report CSHB 414(HES), as amended, from committee.
There being none, CSHB 414(JUD) was reported from the House
Judiciary Standing Committee.
SB 20 - OFFENSES AGAINST UNBORN CHILDREN
3:18:09 PM
CHAIR McGUIRE announced that the final order of business would
be CS FOR SENATE BILL NO. 20(JUD), "An Act relating to offenses
against unborn children." [Adopted as the work draft on 2/15/06
was CSSB 20(2d JUD).]
SENATOR FRED DYSON, Alaska State Legislature, sponsor, relayed
that he agrees that the language on page 3, lines 23-25, and
page 4, lines 3-5, is of dubious value, and therefore he won't
object to the deletion of that language; that language read:
(b) In a prosecution under this section, except for a
multiple birth, 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.
3:20:35 PM
LINDA L. LAYNE, Ph.D., relayed that she is a medical
anthropologist whose specialty is pregnancy law; that she has
published a book on the subject, [Motherhood Lost]; and is
producing an educational television series advocating for better
care of women who miscarry or suffer still birth. She said:
Each year in the U.S. there are nearly a million
pregnancy losses, [and] the vast majority of these
losses occur before 37 weeks gestation. The bill
you're considering essentially criminalizes pregnancy
loss. My research shows that the loss of a wished-for
pregnancy is often very traumatic, and even in cases
such as miscarriage clusters because of toxic
exposure, women have a tendency to self-blame. So the
last thing women need after a loss is to be confronted
by an interrogating police officer.
Although the bill quite rightly exempts the nearly 1
million women who have elective abortions, it leaves
the equal number of women who suffer spontaneous
abortions vulnerable to criminal investigation. Such
investigations clearly increase the stress, and it
exacerbates the grieving process. I'm afraid this law
would also undermine maternal and fetal health by
discouraging women from seeking prenatal care or
hospital-based births if they're afraid of arrest.
And that's why every leading medical and child welfare
group that's addressed this issue has unanimously
opposed laws like these that would hold women legally
responsible for the outcomes of their pregnancies.
Furthermore, I'm afraid a bill like this would ...
have an unfair effect on racial minorities. Black
women have significantly higher rates of pregnancy
loss, preterm births, and very-low-birth-weight
babies, and in the states that have similar laws, it's
overwhelmingly black women who are being arrested for
poor reproductive outcomes. I'm in favor of reducing
violence against pregnant women, but I urge you ...,
rather than focusing on unborn victims, to keep the
focus on pregnant women and adopt enhanced penalties
for violence against them.
It may be helpful to think of them [in terms] ... of
an analogy with police officers, as a specially
protected category. Like police officers, pregnant
women provide an essential service to society, and,
like the police, they risk their lives in so doing.
Although much less common than in earlier eras,
pregnancy still brings with it the risk of death -
several hundred American women die every year because
of complications during pregnancy and childbirth. And
homicide of pregnant women is an even greater risk.
So I support your efforts to deter such crimes, but
urge you to do so by adopting legislation that
enhances penalties for attacks on pregnant women,
rather than opening the door for making women
criminally liable for the outcomes of their
pregnancies. Thank you.
3:23:39 PM
REPRESENTATIVE ANDERSON offered a hypothetical situation in
which a pregnant women drinks alcohol and then has a spontaneous
abortion. He asked whether such a woman could be prosecuted
under the bill.
DR. LAYNE explained that under proposed AS 11.41.280(b) and AS
11.41.282(b), such a woman would be subject to a felony charge
because the very fact that a child is born before 37 weeks
gestation with weight at birth of 2,500 grams or less is prima
facie evidence of serious physical injury. Thus a woman, on top
of having to endure her own feelings of grief for the loss of a
wanted pregnancy, would be subject to a criminal investigation.
REPRESENTATIVE ANDERSON noted that the sponsor is amenable to
eliminating those provisions. He asked Dr. Layne whether the
deletion of those provisions would address her concern.
DR. LAYNE said that overall, her preference would be for the
bill to go in the direction of providing for enhanced penalties
for violent crimes against pregnant women, rather than focusing
on the outcome of a pregnancy, because no pregnancy is
guaranteed a healthy outcome.
REPRESENTATIVE ANDERSON mentioned that he too has concerns about
the bill as it is currently written.
3:27:24 PM
REPRESENTATIVE GARA made a motion adopt Conceptual Amendment 1,
to delete the language on page 3, lines 23-25, and page 4, lines
3-5. There being no objection, Conceptual Amendment 1 was
adopted.
REPRESENTATIVE GARA offered his belief that there is a consensus
among many members of the committee that the penalties against
those who assault pregnant women ought to be enhanced. He made
mention of a proposed amendment that would enhance the penalties
for those who cause a miscarriage or harm a pregnant women,
surmising that a lot of the debate will be on the question of
whether this type of penalty enhancement should be done via a
bill that uses the term, "unborn child" or whether the bill
should [also] be altered so as to avoid a Roe v. Wade debate.
3:30:09 PM
TILOMA JAYASINGHE, Esq., Staff Attorney, National Advocates for
Pregnant Women (NAPW), remarked that although many may believe
that SB 20 will protect pregnant women and their fetuses from
abuse, because it is not clear that the bill is not intended to
be used as a basis for arresting pregnant women and new mothers,
it will, in fact, undermine the health of pregnant women and be
very bad for babies. She elaborated:
We know that similar bills have been used as a
justification to arrest literally hundreds of pregnant
women. For example, in Utah ... Melissa Roland gave
birth to twins, one of whom was stillborn; Melissa was
arrested for murder for not consenting to a [cesarean
section] ... two weeks earlier. What this bill says
in effect is that women have to guarantee a healthy
birth outcome. Pregnancy, as you all know, is a
possibility and not a promise. No state legislature
in this country has taken the step of requiring women
to guarantee the outcome of their pregnancies under
the threat of criminal penalties.
This bill also suggests that with respect to women who
are domestic violence [DV] victims, while it cannot be
used alone, it can be used as a factor permitting
arrest when it never should be used as a reason.
Whether a woman's pregnancy is at risk because her
employer won't provide her with a safer work station,
or her community won't help reduce the level of
mercury in the fish that she eats, or ... her
boyfriend batterers her, none of those should be a
basis for investigating and arresting her if she can't
guarantee a healthy outcome of her pregnancy.
Every leading public health and child welfare group
unanimously [opposes] the prosecution of pregnant
women and new mothers, even when bills specifically
target pregnant women using illegal drugs, because
they understand that the threat of arrest will deter
these women from seeking the care that will help them
and their babies. If you are, in fact, concerned
about pregnant women and their unborn fetuses, the
last thing you would do is enact this bill as it's
currently written because it opens the door to the
possibility of arrest to any woman who decides to
continue her pregnancy to term despite health concerns
and other risks. It has, actually, the effect of
coercing abortion rather than promoting ... continuing
to term. ...
Enhancing punishment is the better the way to go. In
North Carolina they address this issue in a really
constructive manner by keeping the focus on the
pregnant woman and acknowledging the additional loss
she suffers when she and her unborn child are harmed,
rather than [by] creating a separate victim status for
her fetus. These models ... reflect the harmful
effect the loss of a pregnancy has on the woman
herself without bringing all [the] additional issues
that arise when you make the fetus a separate victim.
The way to protect the unborn and their mothers is not
by opening the jailhouse door, but by promoting the
alternatives that honor and protect them.
This bill [in its current draft] sends the message to
women ... that if you are at risk for a premature
birth, miscarriage, or stillbirth, or if you have any
doubts about your ability to produce a perfectly
healthy baby, abort or else face the prospect of being
arrested and sent to jail. And I'm sure that is
definitely not the message [the legislature wants to
send]. Thank you.
3:34:15 PM
ALLISON GOTTESMAN, Co-Chair, Social Action Committee, Alaska
Chapter, National Association of Social Workers (NASW), said
that while [the Alaska Chapter] commends the thought behind the
bill - stopping offenses against unborn children - it cannot
support the bill as currently written. She went on to say:
I can only stress the importance that the only way to
keep children safe is to keep their mothers safe. I
appeal to you today to amend this bill to have
enhanced penalties but not against the pregnant woman
herself. ... There are serious fears that the way this
bill is drafted, [it] would lock up more pregnant
women than their perpetrators. I am requesting that
the language of the bill be either reworked or include
a statement that reads: "Nothing in this Act is
intended to grant personhood to the unborn child". I
thank you very much for your time today.
3:35:30 PM
BRENDA STANFILL, Interior Alaska Center for Non-Violent Living,
relayed that her organization cannot support the bill [as
currently written], though is in support of enhanced penalties
[for those who harm a pregnant woman] and the recognition that a
woman has lost her child.
CHAIR McGUIRE noted that Ms. Stanfill's comments were also
spoken on behalf of Kate Axelarris and Jessica Stossel - also
from the Interior Alaska Center for Non-Violent Living.
3:36:54 PM
CLOVER SIMON, Planned Parenthood of Alaska (PPA), relayed that
her main concern is that SB 20 does not contain an exemption for
acts that a woman commits, and that in order for PPA to fully
support the bill and even the enhanced penalties, it would
definitely need to include an exemption for acts undertaken by a
woman. She said that she has read through all the other states'
laws pertaining to unborn victims, and the majority of those
laws have an explicit exemption for acts that a woman commits,
opining [that adding a similar provision] would be the best way
to protect women from getting prosecuted under SB 20.
3:37:56 PM
JOELLE HALL relayed that she would be testifying as a woman who
has had premature delivery and who would not have appreciated
being the subject of an investigation, particularly given that
her premature children have turned out just fine and that lots
of babies with problems are born right on time. She urged the
committee to find some way to prosecute people for these
egregious crimes other than making them separate crimes.
3:39:00 PM
MICHAEL "WES" MACLEOD-BALL, Executive Director, Alaska Civil
Liberties Union (AkCLU), referred to a question posed at the
bill's last hearing regarding whether inclusion of a
recklessness standard would protect a woman from prosecution for
her own behavior, and offered his understanding that under a
recklessness standard, one would have to be aware of a risk but
consciously disregard it, with that disregard being a gross
deviation from the standards of a reasonable person. Because of
this, he opined, the question of whether a woman's behavior is
reckless while at the same time being innocent is really in the
eye of the beholder. It is conceivable, therefore, that a
zealous prosecutor could envision behavior as reckless while
others might view the behavior as understandable under some
circumstances.
MR. MACLEOD-BALL said that in such a case, a woman could be
indicted and prosecuted, and even if the jury interprets the
[recklessness] standard with the degree of reasonableness that
he, for example, would apply, the woman would still have gone
through a criminal prosecution and been subjected to all the
stress and expense associated with it. Recklessness is an
element of manslaughter as defined in the version of the bill
before the committee, but it is not an element of the separate
crime of criminally negligent homicide of a fetus. The standard
for criminal negligence, he offered, is where the person fails
to perceive the risk. And although there is a requirement that
the harm be caused by a dangerous instrument, the definition for
dangerous instrument is quite broad: anything under the
circumstances that can cause death or injury. He opined that a
fact question being interpreted differently by a zealous
prosecutor than by a reasonable person could mean the difference
between a prosecution and no prosecution.
MR. MACLEOD-BALL relayed that the AkCLU also believes that the
language that would exempt a woman who remains in a violent
domestic situation from the standard of extreme indifference has
problems of its own. First, it says that the decision to remain
in the violent situation cannot constitute extreme indifference.
So what else beyond the decision to remain in that situation
would allow a finding of extreme indifference? It seems to him,
he remarked, that a mere scintilla of evidence added to the
decision to remain in the violent situation would be enough for
some prosecutors to bring a case. For example, what if there is
evidence that the woman was not in favor of the pregnancy and
wanted to have an abortion before then deciding to keep the
pregnancy, or evidence that she decided to drink in addition to
returning to the violent home? Are those additional items that
could be added to the decision to return to that violent
situation and thereby create that assertion of extreme
indifference by the prosecutor?
MR. MACLEOD-BALL, continuing, remarked that second, the bill
doesn't contain language that suggests that the decision to
return or remain in a violent domestic situation can't be used
as evidence of reckless behavior, nor is there language to
suggest that it couldn't be used as evidence to establish
criminal negligence. He asked the committee to consider those
issues as the bill moves through the process. In conclusion, he
said, "We reiterate our support of a different kind of bill that
would include enhanced penalties."
3:43:02 PM
ROBIN SMITH, Alaska Pro-Choice Alliance (APCA), said that the
APCA supports the intent of SB 20 - men who attack and sometimes
kill their pregnant wives and girlfriends should be punished
more severely if the fetus is injured or dies. The most
appropriate method to punish these offenders, however, is to
charge them with enhanced penalties, rather than creating a new,
separate crime, and there are several reasons why enhanced
penalties are preferable to creating a new crime. For example,
enhanced penalties might result in longer prison terms, would
avoid the problematic issue of when life begins, and would avoid
the potential prosecution of pregnant women that could result in
deterring them from seeking appropriate healthcare. She offered
her hope that the bill will be changed to strictly address
enhanced penalties rather than focusing on prosecuting pregnant
women.
3:44:52 PM
KATE BURKHART relayed that she would be discussing two points,
with the first building upon Mr. Macleod-Ball's testimony. She
said:
The breadth of certain portions of the bill as written
rises to a level of ambiguity and vagueness which
could lead to questions of constitutionality. The
well-accepted standard for ambiguity in legislation is
that if a law fails to give adequate notice of the
conduct that is prohibited, or if its imprecise
language encourages arbitrary enforcement by allowing
prosecuting authorities undue discretion to determine
the scope of its prohibitions, it will fail a test of
constitutionality.
I know there has been plenty of testimony about
unintended situations where this bill could be
applied, where the conduct of a pregnant woman is
actually criminalized. In South Carolina, where there
is legislation similar to this in effect, so far there
have been 80 women arrested on the basis of their
conduct during their pregnancy. And so the fear that
this bill will indeed lead to prosecution and
incarceration of pregnant women for their conduct to
themselves is not unreasonable.
Also, given the fact that [the phrase], "extreme
indifference to the value of human life" is not
actually defined but is instead evaluated based upon a
series of factors - which include the social utility
of the actor's conduct, the magnitude of the risk
created, the ability to foresee harm and the
likelihood of harm, and the actor's knowledge of the
risk - there is a great deal of breadth to what will
fall within the scope of the bill. And it's for those
reasons that I do believe that certain aspects of the
bill - especially those dealing with manslaughter,
criminally negligent homicide, assault [in the first
degree], and assault [in the second degree] - may fail
[a] test of constitutionality.
The other issue that I would bring the committee's
attention to is that a man who assaults his wife who
is not pregnant will, if he is charged, most likely be
charged with a misdemeanor whatever the extent of her
injuries - that's just a fact of life, almost every
legal advocate in this state would testify to that;
however, if she's pregnant and she sustains the same
injuries but there's an impact to the fetus, now it's
a felony. So the public policy implications of this
are that the fetus is more important than the woman,
and it takes away the woman's value; the woman's value
is no longer linked to her own inherent humanity but
only to the fact that she has a womb, and that
certainly cannot be the point of the bill.
The intent of the bill is to protect women from
violence and to protect pregnant women from violence,
and we know that they are twice as likely to be
battered during their pregnancy as not. And so the
intent is great, but as drafted, I think that the
ambiguities lead to some serious constitutional
questions, and, the way that the penalties are set,
what we're saying is, pregnant women are more
important than just women. Thank you.
3:49:20 PM
AMANDA "MANDY" O'NEAL noted that she is five and a half months
pregnant. After relaying that a lot of the points she'd
intended to make have already been expressed, she pointed out
that as a pregnant woman, she worries about a lot of things
every day, and gave examples. She stated that she does not want
to add to the stress of worrying about her [unborn] child the
stress regarding whether she could be prosecuted for flying in a
floatplane, for example, as she is required to do for her job.
She also pointed out that there are a lot of women who have
high-risk pregnancies, like herself, and that when this is the
case, a variety of doctors and others will offer different
recommendations regarding how she should behave and what actions
she should take, and it is up to her to determine the best
course of action while keeping in mind that there are risks in
being pregnant and that there are no guarantees of a positive
outcome.
MS. O'NEAL said that all she wants is for people to respect the
fact that with a little education, she can make the proper
decisions on her own, and ought to be able to do so without the
fear of prosecution, particularly given that a fear of
prosecution could keep her from seeking out further educational
opportunities. In conclusion, she pointed out that without her,
there is no baby - the baby would just be an idea; therefore, if
the goal is for she and her baby to be safe, the best way to go
about it would be to ensure that she is safe.
3:51:40 PM
SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse
and Rape Emergencies (AWARE Inc.), relayed the following
concerns:
This bill seems to carry greater concern for the
unborn child than for the woman carrying the unborn
child, as if the cargo has greater value than the
vessel, and it puts pregnant women at risk for all
sorts of consequences in the event she miscarries,
delivers a stillborn child, or her baby is born with
physical injury. This bill does not speak about the
pregnant woman experiencing this loss. When pregnant
women are injured during domestic violence, the intent
is often to cause physical and emotional harm to the
pregnant woman. Crimes against pregnant women because
they are pregnant, are crimes against women, and
stopping violence against women stops violence against
future children as well.
I wholeheartedly support legislation that protects
pregnant women and their future children. I support
legislation that enhances penalties on attacks of
women who are pregnant. I support legislation that
acknowledges and punishes the additional loss and harm
experienced by pregnant women. I support legislation
that prohibits the shackling of women who are pregnant
and already in jail. I support legislation that
promotes pregnant women's health through advocacy of
healthy behavior, including the development of safe
and available and effective services for women and
families when substance abuse treatment and mental
health services are necessary, and mandatory training
for medical providers in miscarriage management,
including interpersonal violence training and
screening.
Pregnant women in safe shelter or in violent
relationships are in highly stressful situations, and
we work to support and encourage them with healthy
coping alternatives. And we also understand that
every woman survives violence in her own individual
way; adding to her confusion and fear by threatening
criminal prosecution will cut off more women from
seeking the support they need.
I urge you to create legislation that protects
pregnant women, rather than place them at risk.
Please send the message that violence against pregnant
women is unacceptable and that those who assault them
will be aggressively punished, by instituting enhanced
penalties for these crimes.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 20.
3:55:55 PM
REPRESENTATIVE GARA, in response to a suggestion, made a motion
to adopt Amendment 2 - labeled 24-LS0197\U.1, Luckhaupt, 2/20/06
- as amended to read:
Page 1, line 1:
Delete all material and insert:
"An Act enhancing penalties for crimes committed
against pregnant women."
Page 1, line 3, through page 7, line 18:
Delete all material and insert:
"* Section 1. AS 11 is amended by adding a new
chapter to read:
Chapter 32. Enhanced Penalties.
Sec. 11.32.100. Penalties for crimes committed
against pregnant women. (a) Notwithstanding another
provision of this title or AS 12, if a person commits
a crime defined in this title against a pregnant woman
who the person knew or should have known to be
pregnant that results in a miscarriage or stillbirth,
the crime shall be punished in the following manner:
(1) a crime defined as murder in the first
degree under AS 11.41.100 shall be punished by a
sentence of 40 - 99 years;
(2) a crime defined as murder in the second
degree under AS 11.41.110 shall be punished by a
sentence of 30 - 99 years;
(3) a crime defined in this title as a
class A felony shall be punished as an unclassified
felony in the manner provided for unclassified
felonies in AS 12.55.125;
(4) a crime defined in this title as a
class B felony shall be punished as a class A felony
in the manner provided for class A felonies in
AS 12.55.125;
(5) a crime defined in this title as a
class C felony shall be punished as a class B felony
in the manner provided for class B felonies in
AS 12.55.125;
(6) a crime defined in this title as a
class A misdemeanor shall be punished as a class C
felony in the manner provided for class C felonies in
AS 12.55.125;
(7) a crime defined in this title as a
class B misdemeanor shall be punished as a class A
misdemeanor in the manner provided for class A
misdemeanors in AS 12.55.135.
(b) The penalties in (a) of this section do not
apply to acts committed
(1) during a legal abortion to which the
pregnant woman, or a person authorized by law to act
on the pregnant woman's behalf, consented or for which
the consent is implied by law;
(2) during any medical treatment of the
pregnant woman or the fetus; or
(3) by a pregnant woman against herself.
(c) In this section,
(1) "miscarriage" means the interruption of
the normal development of the fetus, other than by a
live birth or by an induced abortion, resulting in the
complete expulsion or extraction of the fetus from a
pregnant woman;
(2) "stillbirth" means the death of a fetus
before the complete expulsion or extraction from a
woman, other than by an induced abortion, irrespective
of the duration of the pregnancy.
* Sec. 2. AS 12.55.125(a) is amended to read:
(a) A defendant convicted of murder in the first
degree shall be sentenced to a definite term of
imprisonment of at least 20 years but not more than 99
years. A defendant convicted of murder in the first
degree enhanced under AS 11.32.100(a)(1) shall be
sentenced to a definite term of imprisonment of at
least 40 years but not more than 99 years. A
defendant convicted of murder in the first degree
shall be sentenced to a mandatory term of imprisonment
of 99 years when
(1) the defendant is convicted of the
murder of a uniformed or otherwise clearly identified
peace officer, fire fighter, or correctional employee
who was engaged in the performance of official duties
at the time of the murder;
(2) the defendant has been previously
convicted of
(A) murder in the first degree under
AS 11.41.100 or former AS 11.15.010 or 11.15.020;
(B) murder in the second degree under
AS 11.41.110 or former AS 11.15.030; or
(C) homicide under the laws of another
jurisdiction when the offense of which the defendant
was convicted contains elements similar to first
degree murder under AS 11.41.100 or second degree
murder under AS 11.41.110;
(3) the court finds by clear and convincing
evidence that the defendant subjected the murder
victim to substantial physical torture; or
(4) the defendant is convicted of the
murder of and personally caused the death of a person,
other than a participant, during a robbery.
* Sec. 3. AS 12.55.125(b) is amended to read:
(b) A defendant convicted of attempted murder in
the first degree, solicitation to commit murder in the
first degree, conspiracy to commit murder in the first
degree, kidnapping, or misconduct involving a
controlled substance in the first degree shall be
sentenced to a definite term of imprisonment of at
least five years but not more than 99 years. A
defendant convicted of murder in the second degree or
a class A felony enhanced under AS 11.32.100(a)(3)
shall be sentenced to a definite term of imprisonment
of at least 10 years but not more than 99 years. A
defendant convicted of murder in the second degree
shall be sentenced to a definite term of imprisonment
of at least 20 years but not more than 99 years when
the sentence is enhanced under AS 11.32.100(a)(2) or
when the defendant is convicted of the murder of a
child under 16 years of age and the court finds by
clear and convincing evidence that the defendant (1)
was a natural parent, a stepparent, an adopted parent,
a legal guardian, or a person occupying a position of
authority in relation to the child; or (2) caused the
death of the child by committing a crime against a
person under AS 11.41.200 - 11.41.530. In this
subsection, "legal guardian" and "position of
authority" have the meanings given in AS 11.41.470.
* Sec. 4. AS 12.55.155(c) is amended by adding a
new paragraph to read:
(33) the defendant was convicted of an
offense specified in AS 11.41. and knew ore reasonably
should have known that the victim was pregnant"
* Sec. 5. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY. AS 11.32.100, enacted by sec. 1
of this Act, and AS 12.55.125(a) and (b), as amended
by secs. 2 and 3 of this Act, apply to crimes
committed on or after the effective date of this Act."
REPRESENTATIVE GARA, in response to a question, explained that
the intent of Amendment 2, as amended, is to impose stiffer
penalties against a person who assaults or does worse to a
pregnant woman thereby causing a miscarriage or stillbirth when
the person knew or should have had reason to know that the woman
was pregnant, with the stiffer penalties resulting in sentences
at least as long as is currently provided for in CSSB 20(2d JUD)
because such crimes shall be punished as if they were a higher
level crime. In similar situations that don't result in a
miscarriage or stillbirth, the sentence shall be enhanced via an
aggravator.
REPRESENTATIVE COGHILL objected to Amendment 2, as amended.
REPRESENTATIVE GARA opined that there should be enhanced
penalties - more serious penalties, greater sentences - when one
attacks, murders, or assaults a pregnant woman and causes a
miscarriage, but indicated that he doesn't want the bill to
include language that could later be used to reverse Roe v.
Wade. Representative Gara surmised that the sponsor would
prefer that the bill continue to use the term, "unborn child".
3:59:33 PM
REPRESENTATIVE ANDERSON surmised that the rationale for the bill
is to respond to situations such as occurred to Laci Peterson,
but pointed out that her husband didn't care that his wife was
pregnant and so such a bill wouldn't have deterred him from
killing her. Representative Anderson said he views the bill as
intending to protect pregnant women from violence, but
acknowledged that it does have a tendency to protect the unborn
child over the mother. Representative Anderson opined that if
one knowingly hurts a pregnant women, he/she should be punished
more severely, but he does not want a woman prosecuted for
actions she herself undertakes - such as participating in
outdoor activities - that unintentionally result in a
miscarriage.
REPRESENTATIVE GARA concurred. He opined that although current
law does not go far enough with regard to protecting pregnant
women from assault or worse, there are still a few problems with
the bill, one of those being whether the term, "unborn child"
could be used to challenge Roe v. Wade. He, therefore, has
decided to create [language] that will protect women against
assault while staying away from a Roe v. Wade debate. Another
problem with the bill, he remarked, is that proposed AS
11.41.170 - which establishes the crime of criminally negligent
homicide of an unborn child - will criminalize a pregnant woman
if she causes the death of her fetus by means of a dangerous
instrument, and the courts have already said that a car, for
example, is a dangerous instrument; therefore, a woman could be
criminalized for getting into a car accident that results in a
miscarriage or stillbirth. He said: "I don't think it is right
for us to come up with a new way to criminalize conduct by a
pregnant woman who does not intend to harm her [fetus]."
REPRESENTATIVE GARA reiterated his earlier comments and compared
the sentencing scheme in the bill with the sentencing scheme in
Amendment 2, as amended, characterizing those sentencing schemes
as functionally equivalent. For example, for a crime committed
against a pregnant woman that results in her death and in the
death of her fetus, where the bill proposes two 20-year
sentences, Amendment 2, as amended, proposes one 40-year
sentence, and so on. Essentially, in each instance, the bill
provides for two crimes with separate sentences, whereas
Amendment 2, as amended, provides for one crime with one
sentence, with that one sentence being at least as long if not
longer than what the bill proposes via two sentences.
4:13:37 PM
SENATOR DYSON relayed that the original bill included language
stating that nothing in it would allow a woman to be prosecuted
for her own actions, but Senate members wanted to protect an
unborn child from the mother's reckless conduct. He said he
would not object to reinserting the language that protects the
mother from prosecution, but indicated that he is strongly
opposed to changing the bill such that it would no longer
provide for two crimes - one for actions taken against the
mother, and one for actions taken against the unborn child. One
of the main points of SB 20, he indicated, is to establish that
an unborn child is worthy of protection, and he went on to note
that Ms. Carpeneti from the Department of Law would be able to
explain why the bill's current language would make prosecuting a
mother for her own actions highly unlikely.
SENATOR DYSON, in response to comments, again indicated that he
would be strongly opposed to any amendment that would eliminate
the bill's provisions establishing two separate crimes - one for
actions taken against the mother, and one for actions taken
against the unborn child - as that would defeat the purpose of
SB 20, that purpose being to establish that an unborn child has
intrinsic value of its own and is worthy of protection. He
relayed that the original version of SB 20 stipulated that its
provisions would "not apply to acts that ... (3) are committed
by a pregnant woman against herself and her own unborn child".
REPRESENTATIVE ANDERSON indicated that he would not support a
bill that has the potential to allow a pregnant woman to be
prosecuted for her own actions.
SENATOR DYSON pointed out that if the committee wishes to
reinsert the aforementioned language, it will also need to make
other changes to the bill as well.
4:23:02 PM
REPRESENTATIVE GARA said:
I don't mean any disrespect by not technically having
a second crime with a second name for when you cause a
miscarriage. That doesn't mean that we do not value a
woman's pregnancy or the baby that she's carrying,
just like it doesn't mean we don't value the lives of
the victims who survive somebody who was killed in a
murder. When you murder somebody - and, as you know,
that has occurred in my family - ... the crime is
murder. There is no separate crime because the victim
had a son, a daughter - there is no separate crime for
each victim in the family who remains alive - the
crime is called murder. When we've developed the
crime of murder, we meant no disrespect to the
interests of those people who still survived, [people]
who were in some way hurt almost as much as the person
who died.
So I do not agree with the argument that just because
we don't have a separate named crime for every victim
of a murder or assault, we somehow disrespects all of
the victims - I don't buy it. And I say that in a
manner that's a little bit emotional, A, out of my own
experience, and, B, because I take some offense. I
take some offense that you believe that I think one
crime is just like another crime. So I would ask you
to think about the fact that we impose the same
sentences you want to impose and really our difference
is one of language. But I don't ... disrespect the
fact that a woman who has a miscarriage has lost a
baby - I value that as a separate interest.
And then this whole thing about what language you're
using -- ... I'm sorry that we disagree about the use
of the [words], "unborn child", ... [but]
unfortunately I know that that language is being used,
frankly, because of the broader abortion debate -
maybe not because [of], but it's going to have an
impact on the broader abortion debate. That's why I'm
trying to avoid it. I don't consider somebody after
they've been born, a born child; I consider them a
child. And frankly I personally consider somebody
that a woman is carrying during her pregnancy, a baby.
That's what I consider it, because I don't look up my
Black's Law Dictionary when I come up with these
terms; I don't know what the technical word should be
- I just know how I speak.
So I don't think we need to have this fight about
[how] you should technically have to call somebody,
but ... when you tell me that I'm not properly
recognizing the interest of a baby because I don't
call it an unborn child, I would tell you, I also
don't call a baby who is born, a born child. So I
don't ... feel guilty for not calling a baby an unborn
child.
SENATOR DYSON said: "I mourned with my middle daughter, and we
wept, when she lost two children. She and I believed she lost
something of value - it wasn't just a pregnancy - there's
another two more grandkids of mine I don't have." He then
offered another example:
This gal and her dead son, when she buried him. Her
husband beat her until the child died within her and
was born stillborn. When she finally crawled out of
the home and got help, they took her to the hospital,
[and] she delivered a dead child. She said: "My own
injuries [were] life-threatening. I nearly died. I
spent three weeks in the hospital. During the time I
was struggling to survive, the legal authorities came
and spoke to my sister; they told her something she
found incredible, they told her [that] in the eyes of
Wisconsin law, nobody had died on the night of
February 8th."
I don't know how we can say that it's not a Homo
sapiens child that died. And if you choose to
eliminate the second crime, here, that's a statement
that people of this state get to make through their
elected officials - that's your choice - but I feel
very strongly about it; 28 other states have done it
on one level and it's in federal law. Various polls
run between 56 and 82 percent of how many people think
that if you kill a child while you're assaulting its
mother, [you've] got two victims. ...
REPRESENTATIVE WILSON asked for an explanation regarding the
standards of reckless and negligent.
SENATOR DYSON, in response to a different question, reiterated
his understanding that according to the Department of Law, the
standards in the current bill are high enough to make it
unlikely that a woman would be prosecuted for her own actions.
4:32:01 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), in
response to a concern expressed earlier, said that [CSSB 20(2d
JUD)] tracks a lot of the state's current murder and assault
statutes. For example, the phrase, "extreme indifference to the
value of human life" is an element of the crime of murder in the
second degree, and so it is not language that a court would have
difficulty applying or that a prosecutor would have difficulty
making a reasonable decision about.
REPRESENTATIVE GRUENBERG asked whether a pregnant woman driving
negligently could be prosecuted under the bill for criminally
negligent homicide of an unborn child if she gets in an accident
that causes her to have a miscarriage.
REPRESENTATIVE WILSON asked whether the same could be done in a
situation involving a pregnant woman who goes skiing during her
eighth month of pregnancy.
REPRESENTATIVE ANDERSON added a stipulation to Representative
Gruenberg's example that the pregnant woman did not intend to
cause any harm to her unborn child by her actions in driving
negligently.
SENATOR DYSON offered his understanding that the charges a woman
might face under the bill for what she does to her unborn child
are no different than what she would face had she given birth to
that child and it was sitting beside her in the car - his
intention is for the standard to be the same.
MS. CARPENETI, in response to questions, said it is very
unlikely that the woman would be charged, because the bill
recites criminally negligent homicide the same way current law
does, that is to say that a person acts with criminal negligence
with respect to a circumstance, which would be the death of a
child, when the person fails to perceive a substantial and
unjustifiable risk that the result will occur and that the
circumstances exist. Furthermore, the risk must be of such a
nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that a reasonable
person would observe in the circumstances. Therefore, she
surmised, in the example about a pregnant woman driving too fast
over icy roads, the DOL wouldn't bring a charge because the
circumstances don't rise to the level of criminal negligence.
She added, "Criminally negligent homicide - we ... often
prosecute drunk driving [as that] when you kill somebody, or,
depending on the circumstances, it could be [charged as]
manslaughter because the conduct is reckless, or you could even
get, sometimes, [a charge of] murder in the second degree for
drunk driving that causes a wreck and kills someone."
4:37:04 PM
REPRESENTATIVE WILSON surmised, then, that SB 20 is simply
saying that the death of an unborn child can be counted as a
murder.
MS. CARPENETI explained that SB 20 would require that the harm
occurred via the use of a dangerous instrument for that to be
the case, whereas under current law, the crime of criminally
negligent homicide does not have such a requirement.
SENATOR DYSON characterized [that requirement] as a higher
standard.
REPRESENTATIVE GRUENBERG noted that a car is [considered] a
dangerous instrument.
REPRESENTATIVE GARA offered his understanding, however, that
currently, if a pregnant woman, while driving, gets into a car
accident and a miscarriage results, her behavior would be
considered negligent driving, whereas if Senator Dyson's bill
passes, the same circumstance could result in the woman also
being charged with murder.
MS. CARPENETI offered her belief that Representative Gara is
correct in his understanding because current law regarding
homicide doesn't consider a fetus a person.
REPRESENTATIVE GRUENBERG directed members attention to page 2,
lines [26-30] - proposed AS 11.41.17 - and again pointed out
that a car is considered a dangerous instrument and that a
violation of this proposed statute would be a class B felony,
and offered his understanding that this would be equivalent to
manslaughter; proposed AS 11.41.170 in CSSB 20(2dJUD) read:
(a) A person commits the crime of criminally
negligent homicide of an unborn child if, with
criminal negligence, the person causes the death of
an unborn child by means of a dangerous instrument.
(b) Criminally negligent homicide of an unborn child
is a class B felony.
MS. CARPENETI clarified that criminally negligent homicide is a
class B felony, manslaughter is a class A felony, and murder is
an unclassified felony.
REPRESENTATIVE GRUENBERG offered his understanding that in a
situation involving a car wreck, the intent of the bill is to
say that even if the baby is not yet born but dies, the person
could be charged as if the baby had been born and dies; in other
words, the person could be charged with criminally negligent
homicide.
CHAIR McGUIRE remarked on the difficulty of struggling with
where to draw line on this issue. She elaborated:
We want to be careful that women aren't seen as mere
vessels but that they are lives, and that they have
their own life and their own worth and that the
choices they make are worthwhile and important and
difficult. You heard the pregnant woman that
testified earlier - and I just experienced it - you do
worry every single day that what you eat has enough
nutrition and that you're not overworking yourself but
then if you don't work how do you make a living and
provide for your child. ...
And so I sit here today, Senator Dyson, and I can ...
feel the pain of my committee because in some ways,
[Amendment 2, as amended, addresses] ... part of ...
the concern but gets us away from this other, "respect
of unborn life" as you referred to it, but then if we
keep the bill the way it is, you end up in
circumstances where I think you have women, hopefully
acting in good faith, making choices that may lead to
their imprisonment. I don't know that we want to see
that, I don't even know if we have enough room in our
jails as it is right now. There's testimony that in
South Carolina, 80 women were arrested. ...
CHAIR McGUIRE relayed that she would hold the bill over and
allow all parties to give the issues raised further
consideration.
SENATOR DYSON offered the suggestion that the committee go back
to the original language that ensured that a woman could not be
prosecuted for her own actions. He surmised that there are
people who are worried that adoption of CSSB 20(2d JUD) would
recognize in law that an unborn human child has intrinsic worth
on its own, and he acknowledged that this would produce a
dichotomy in the way Americans view this issue. He reiterated
his belief that it would be unlikely that a pregnant woman would
be prosecuted for her own actions under the bill as currently
written.
4:45:58 PM
CHAIR McGUIRE expressed an interest in discussing that issue
further. Regardless of one's feeling for Roe v. Wade, it has
achieved a civil balance in this country, she remarked, adding
that she does not want the House Judiciary Standing Committee to
be used a vehicle to go back to [the days prior to Roe v. Wade
with regard to how abortion is viewed]. She surmised that
Representative Gara is merely attempting to address that issue
as it might relate to SB 20. She then asked Representative Gara
to think about the "eggshell plaintiff" theory when giving
further consideration to Amendment 2, as amended; that theory
provides that when one causes harm to another, he/she is
responsible for all the harm that is caused regardless of intent
or awareness, and one of the problems with Amendment 2, as
amended, she opined, is that it would only apply if the person
knew or should have known that the victim was pregnant.
REPRESENTATIVE GARA said that's a very good point. He suggested
that perhaps the best way to do it would be to enhance the
penalties as has been discussed and then have an aggravator
apply when a person causes a miscarriage, regardless of whether
he/she intended that to happen and regardless of whether he/she
knew the victim was pregnant. He indicated that he is convinced
that such a situation will be taken seriously by the courts, and
so would be amenable to an amendment or revision to amendment 2,
as amended.
[CSHB 20(2d JUD), as amended, was held over with the question of
whether to adopt Amendment 2, as amended, left pending.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:48 p.m.
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