Legislature(2021 - 2022)GRUENBERG 120
04/20/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing|| Department of Public Safety, Commissioner | |
| HJR7|| HB73 | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HJR 7 | TELECONFERENCED | |
| *+ | HB 73 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
April 20, 2021
3:05 p.m.
DRAFT
MEMBERS PRESENT
Representative Jonathan Kreiss-Tomkins, Chair
Representative Matt Claman, Vice Chair
Representative Geran Tarr
Representative Andi Story
Representative Sarah Vance
Representative James Kaufman
Representative David Eastman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING
Commissioner, Department of Public Safety
James Cockrell - Soldotna
- HEARD
HOUSE JOINT RESOLUTION NO. 7
Proposing amendments to the Constitution of the State of Alaska
relating to the Alaska permanent fund, appropriations from the
permanent fund, and the permanent fund dividend.
- HEARD & HELD
HOUSE BILL NO. 73
"An Act relating to use of income of the Alaska permanent fund;
relating to the amount of the permanent fund dividend; relating
to the duties of the commissioner of revenue; relating to an
advisory vote on the permanent fund; providing for an effective
date by repealing the effective date of sec. 8, ch. 16, SLA
2018; and providing for an effective date."
- HEARD & HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5
"An Act relating to sexual abuse of a minor; relating to sexual
assault; relating to the code of military justice; relating to
consent; relating to the testing of sexual assault examination
kits; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HJR 7
SHORT TITLE: CONST. AM: PERM FUND & PFDS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD, FIN
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 73
SHORT TITLE: PERM FUND; ADVISORY VOTE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD, FIN
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 5
SHORT TITLE: SEXUAL ASSAULT; DEF. OF "CONSENT"
SPONSOR(s): TARR
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD
03/26/21 (H) SPONSOR SUBSTITUTE INTRODUCED
03/26/21 (H) READ THE FIRST TIME - REFERRALS
03/26/21 (H) STA, JUD
03/27/21 (H) STA AT 1:00 PM GRUENBERG 120
03/27/21 (H) Heard & Held
03/27/21 (H) MINUTE(STA)
04/13/21 (H) STA AT 3:00 PM GRUENBERG 120
04/13/21 (H) Heard & Held
04/13/21 (H) MINUTE(STA)
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
WITNESS REGISTER
JAMES COCKRELL, Commissioner Designee
Department of Public Safety
Juneau, Alaska
POSITION STATEMENT: Speaking as the commissioner designee to
the Department of Public Safety, provided his qualifications and
answered questions.
BRIAN BREFCZYNSKI
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: During the hearing on HJR 7 and HB 73,
provided introductory remarks on behalf of the House Rules
Standing Committee, sponsor by request of the governor.
MIKE BARNHILL, Deputy Commissioner
Department of Revenue
Juneau, Alaska
POSITION STATEMENT: Provided a PowerPoint presentation, titled
"HJR 7: Amending Constitution re Permanent Fund; HB 73:
statutory 50/50 PFD Formula."
BILL MILKS, Assistant Attorney General
Department of Law
Juneau, Alaska
POSITION STATEMENT: During the hearing on HJR 7 and HB 73,
answered questions.
JOHN SKIDMORE, Deputy Attorney General
Office of the Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: During the hearing on HB 5, answered
questions.
JAMES STINSON, Director
Office of Public Advocacy
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: During the hearing on HB 5, answered
questions.
RENEE MCFARLAND, Deputy Public Defender
Public Defender Agency
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: During the hearing on HB 5, answered
questions.
NANCY MEADE, General Counsel
Office of the Administrative Director
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: During the hearing on HB 5, answered
questions.
ACTION NARRATIVE
3:05:16 PM
CHAIR JONATHAN KREISS-TOMKINS called the House State Affairs
Standing Committee meeting to order at 3:05 p.m.
Representatives Tarr, Story, Claman, Kaufman, and Kreiss-Tomkins
were present at the call to order. Representatives Vance and
Eastman arrived as the meeting was in progress.
^CONFIRMATION HEARING
^Department of Public Safety, Commissioner
CONFIRMATION HEARING
Department of Public Safety, Commissioner
3:08:52 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be a confirmation hearing for Commissioner Designee James
Cockrell, Department of Public Safety (DPS).
3:09:06 PM
JAMES COCKRELL, Commissioner Designee, Department of Public
Safety, introduced himself and detailed his family history in
Alaska, as well as his education through college. He discussed
his background in public safety, beginning in 1983 in the Alaska
Wildlife Troopers (AWT) Division. He reported being stationed
in various locations throughout Alaska, eventually ending up in
Anchorage at command level. From there, he became a major with
AWT, transitioned to the Division of Alaska State Troopers
(AST), retired, and came back as a patrol trooper to provide law
enforcement services throughout the Kenai Peninsula. After
another short stint in retirement, he was asked to return as the
colonel for AWT to restructure the aircraft section and
interface with the National Transportation Safety Board (NTSB)
during the investigation into a plane crash in Talkeetna that
killed three people. He noted that he was eventually the
colonel of both divisions [AST and Wildlife Troopers] before
retiring in 2017. After that, he worked as the security manager
for Marathon petroleum. He explained that when the vacancy in
DPS became available several months ago, several respected
department members asked him to come back, which spurred his
interest in returning. He said he ultimately returned because
he felt that he could make a positive difference in DPS and for
Alaskans.
3:14:07 PM
COMMISSIONER DESIGNEE COCKRELL outlined his top priorities for
DPS. Firstly, he said he wanted to bring stability to the
department, adding that he was "thrilled" with its current
colonels and directors. He conveyed his desire to meet the
needs of the department in a professional manner. He noted that
he had no intention of tearing down the department and
rebuilding it; however, he would make "course corrections" as he
saw fit. His second priority was to address rural law
enforcement and support the Village Public Safety Officer (VPSO)
program. He acknowledged that AST could not meet its mission's
needs without VPSOs in the villages. Thirdly, he said he would
prioritize sexual assault and domestic violence. He indicated
that he wanted to reduce the prevalence of both, as Alaska lead
the nation in high rates of domestic violence and sexual
assault. He concluded that the department needed to find better
ways to protect young Alaskans especially in rural areas. He
also touched on the issues with retention and recruitment within
DPS. He explained that the department was struggling to keep an
adequate number of troopers in the field. He reported that
there were currently 44 vacant trooper positions in the AST
division, which he characterized as "unacceptable."
3:20:05 PM
CHAIR KREISS-TOMKINS summarized Commissioner Designee Cockrell's
priorities as follows: agency stability, rural law enforcement,
reducing domestic violence/sexual assault, and retention. He
invited questions from committee members.
3:20:30 PM
REPRESENTATIVE STORY questioned how the department would address
the backlog of rape kits that had gone untested. Additionally,
she reported that although DNA swabs were statutorily required,
they were not being used consistently. She asked how the
commissioner designee would attend to that.
COMMISSIONER DESIGNEE COCKRELL said the issue had been brought
to his attention in the last several weeks. He believed that
some police departments expected DOC to handle the DNA swabs.
He stated that DPS would have to do better, which meant training
and educating troopers to follow the statutory requirements.
REPRESENTATIVE STORY opined that it should be a "day-one
priority." She said she was a surprised to learn that there was
no system in place [regarding DNA swabs] and believed it was
critically important that one be implemented.
COMMISSIONER DESIGNEE COCKRELL assured Representative Story that
it would be prioritized, especially in association with domestic
violence and sexual assault.
3:23:09 PM
REPRESENTATIVE TARR indicated that she was pleased with the
commissioner designee's priorities for DPS. She pointed out
that there was no statutory requirement for the ongoing
education or training of public safety professionals. She
questioned whether that should be considered if it could be
properly funded. She provided the example of requiring annual
training on newly enacted laws to ensure that troopers were
knowledgeable about DNA swabs.
COMMISSIONER DESIGNEE COCKRELL acknowledged the importance of
training officers, especially on current medical trends. He
believed the more training the better. He explained that the
issue was the cost of training, as that was usually the first
thing to go during budget cuts. Additionally, with the shortage
of officers in the field, he said it was hard to encourage
commanders to send them to a several-week training at the
academy in Sitka. He noted that in-service training on domestic
violence and sexual assault was required every two years. He
was unsure whether passing a statute [that required ongoing
training] would make a difference due to the associated costs
and components, which he proceeded to list. He maintained that
he was supportive of training, as it helped victims and reduced
the department's liability. He stated his interest in ensuring
that every case was investigated thoroughly, properly
documented, and correctly presented to the DA.
3:27:27 PM
REPRESENTATIVE TARR asked the commissioner designee to comment
on rural law enforcement, sexual abuse of a minor statutes, and
capacity issues.
COMMISSIONER DESIGNEE COCKRELL pointed out that cases involving
sexual abuse of a minor were not contained to rural Alaska. In
addition to catching the perpetrator, he emphasized the
importance treating victims' trauma and believed that Alaska was
lacking in that area. He anecdotally reported that most women
had been sexually assaulted before the age of 18 in certain
towns in Alaska. He concluded that the state, as a whole,
needed to do better.
3:29:07 PM
REPRESENTATIVE CLAMAN, referencing Commissioner Cockrell's
resume [included in the committee packet], sought to confirm
that he was a Tier 1 employee.
COMMISSIONER DESIGNEE COCKRELL answered yes.
REPRESENTATIVE CLAMAN questioned how a lack of pensions affected
recruitment.
COMMISSIONER DESIGNEE COCKRELL believed that a retirement system
with defined benefits was crucial to Alaska law enforcement. He
alleged that all officers experienced a "dark side" during
his/her career and that a retirement system was what kept
employees engaged, as they worked towards a foreseeable end
goal. He opined that returning to a pension was critical and
even more important than wages.
REPRESENTATIVE CLAMAN asked whether the lack of a pension was a
factor in losing troopers to other states.
COMMISSIONER DESIGNEE COCKRELL recalled losing several troopers
to the King County Sheriff's Office. He explained that after
five years, the troopers would collect their 401(K) in addition
to money matched by the state and leave. He said that Alaska
was essentially a training ground for several western police
departments.
REPRESENTATIVE CLAMAN questioned how troopers could help reduce
the number of declined sexual assault cases.
COMMISSIONER DESIGNEE COCKRELL mentioned a UA study from 2014
that tracked sexual assault and domestic violence cases. He
indicated that the quality of investigation increased the
chances of getting a conviction or prosecution. He stressed the
importance of performing quality investigations, noting that
there was a quality control system for domestic violence and
sexual assault. Additionally, he believed it was crucial for
victims to be engaged. To that end, he said DPS was looking
into interfacing victims with advocates so that they would not
get lost in the system.
3:35:24 PM
REPRESENTATIVE CLAMAN asked whether increasing the number of
troopers for that specific reason would improve the quality of
investigation or if that would be addressed by more successful
recruitment in general.
COMMISSIONER DESIGNEE COCKRELL stated that more troopers were
needed. He explained that different options were being
considered [to address sexual assault and domestic violence],
including an investigative unit in Western Alaska that would
handle serious violence crimes, such as homicide and sexual
assault. He indicated that ultimately, investigations were
reliant on the individual officers and consistent methods.
REPRESENTATIVE CLAMAN inquired about the ideal number of VPSOs
for the program to work effectively.
COMMISSIONER DESIGNEE COCKRELL suggested that 100 would be
sustainable.
REPRESENTATIVE CLAMAN asked what lessons could be learned in
Alaska from George Floyd and the successful prosecution of Derek
Chauvin [State of Minnesota v. Derek Chauvin].
COMMISSIONER DESIGNEE COCKRELL opined that Alaska State Troopers
had been successful because of how they treated people. He went
on to say that troopers treated people differently than other
law enforcement agencies because typically, they didn't have
backup; therefore, troopers' biggest tool was their voices as
opposed to a firearm or baton. He anecdotally reported that he
had been able to diffuse stressful situations by talking instead
of using force. Nonetheless, he believed that responding to
situations without backup was risky for both the officers and
the public.
3:41:17 PM
REPRESENTATIVE CLAMAN said statistics indicated that Native and
minority populations were overrepresented in Alaska correctional
facilities. He expressed concern that increased sentences were
disproportionately impacting the most disadvantaged populations
and questioned how that situation could be improved.
COMMISSIONER DESIGNEE COCKRELL suggested considering different
options. He acknowledged that incarceration had repercussions,
especially without the involvement of treatment. He suggested
utilizing Tribal resources to "mitigate prison." He relayed
that there were mixed feelings within DPS regarding Tribal
courts; however, he believed that they could be an option for
"minor" misdemeanors and something that should be explored in
further detail.
3:43:24 PM
CHAIR KREISS-TOMKINS inquired about the efficacy of the
therapeutic court system.
COMMISSIONER DESIGNEE COCKRELL said he didn't have much
perspective on it. He opined that with lower-level
misdemeanors, anything that could divert a person from going to
prison would be beneficial. Further, he pondered whether higher
sentences were actually a deterrent for perpetrators of sexual
assault.
REPRESENTATIVE TARR clarified that she had hoped to hear more
about how the lack of capacity and resources impacted the
overall response to crime in rural Alaska.
3:45:36 PM
REPRESENTATIVE EASTMAN asked what benefits were available for
the spouse/next of kin when an officer died on duty and whether
those benefits were appropriate.
COMMISSIONER DESIGNEE COCKRELL understood that healthcare
benefits for a surviving spouse were effective for an additional
10 years; he/she would also receive a full salary until the age
of retirement, he believed. He shared a personal anecdote about
officers who died in the line of duty. He emphasized his belief
that the widow of a fallen officer should be taken care of.
3:48:25 PM
CHAIR KREISS-TOMKINS announced that in deference to the
committee agenda, the confirmation hearing would continue at a
later date. He expressed his excitement about Commissioner
Designee Cockrell's appointment and said he wanted to ensure
that all members would have ample time to ask questions and
discuss the issues with broader relevance to pieces of
legislation and budget items.
3:50:02 PM
The committee took an at-ease from 3:49 p.m. to 3:53 p.m.
HJR 7-CONST. AM: PERM FUND & PFDS
HB 73-PERM FUND; ADVISORY VOTE
3:53:29 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE JOINT RESOLUTION NO. 7 Proposing amendments to
the Constitution of the State of Alaska relating to the Alaska
permanent fund, appropriations from the permanent fund, and the
permanent fund dividend and HOUSE BILL NO. 73 "An Act relating
to use of income of the Alaska permanent fund; relating to the
amount of the permanent fund dividend; relating to the duties of
the commissioner of revenue; relating to an advisory vote on the
permanent fund; providing for an effective date by repealing the
effective date of sec. 8, ch. 16, SLA 2018; and providing for an
effective date."
3:54:03 PM
BRIAN BREFCZYNSKI, Office of the Governor, relayed that securing
Alaska's fiscal future was the governor's top priority for the
state and its residents. The first step towards achieving that
goal, he said, was to protect the Alaska Permanent Fund and
ensure the continuation of the Permanent Fund Dividend (PFD) for
future generations of Alaskans. He pointed out that after years
of Constitutional Budget Reserve (CBR) and Statutory Budget
Reserve (SBR) spending, the Earnings Reserve Account (ERA) and
its potential depletion was a topic of discussion. He said the
governor recognized the risks associated with that conversation
and offered this legislation in response. HB 73 would establish
a statutory framework to protect the permanent fund and provide
for a sustainable annual draw; further, of the amount available
for appropriation, fifty percent would be designated for
dividends. He conveyed the governor's belief that the will of
the people must be included in this decision; therefore, the
proposed constitutional resolution [HJR 7] would require a vote
of the people. It would also require that any future change to
the dividend formula be approved by the voters. HB 73 would
further provide that a statewide election be held to take an
advisory vote on whether the statutory changes proposed in the
bill were favorable. In closing, he emphasized the governor's
desire for the public to be involved in this process of
protecting the permanent fund and the dividend.
3:57:20 PM
MIKE BARNHILL, Deputy Commissioner, Department of Revenue,
introduced a PowerPoint presentation, titled "HJR 7: Amending
Constitution re Permanent Fund; HB 73: statutory 50/50 PFD
Formula" [hard copy included in the committee packet]. He began
on slide 3, which outlined the objectives of HJR 7: protect the
permanent fund; constitutionally protect the PFD; adopt a one
account structure; preserve the ERA balance; and engage
Alaskans. To protect the fund [first bullet point], he
discussed aligning the permanent fund with a traditional
endowment fund by implementing management practices that would
protect the inflation adjusted value forever, thus balancing the
needs of both present and future generations and protecting
intergenerational equity. In regard to constitutionally
protecting the PFD [second bullet point], the resolution
required that a portion of funds withdrawn from the permanent
fund would be used for a dividend. He noted that the
legislature would control how much of the allocation went
towards the PFD. Adopting a one account structure [third bullet
point] would be more efficient from an investment perspective,
he said, and exhaustion of the fund's income account, the ERA,
would be avoided [fourth bullet point]. He explained that for a
number of years, the permanent fund's trustees had expressed
concern about potentially depleting the ERA. The amount of
distribution from the permanent fund for both the dividend and
the government spending had increased year over year, which
heightened the risk of prematurely exhausting the ERA. He
reiterated that transitioning to a one-account structure would
eliminate that risk. He reported that engaging Alaskans [fifth
bullet point] addressed the governor's desire to
constitutionalize the public's role in approving any changes to
PFD allocations.
4:01:49 PM
REPRESENTATIVE CLAMAN considered a scenario in which the
legislature approved a change to the dividend formula under this
proposal, but the voters did not approve the constitutional
change. He asked whether the formula change would take effect.
MR. BARNHILL believed that a formula change by the legislature
would be effective regardless of whether the constitutional
measure was enacted. He explained that an advisory vote did not
have legal implications and that a statutory change was still
the legislature's responsibility.
REPRESENTATIVE CLAMAN asked whether the advisory vote would be
required if the constitutional amendment did get the necessary
two-thirds vote in the legislature or was rejected by the
voters.
MR. BARNHILL said it would not be required; however, he noted
that the advisory vote was a provision in HB 73, so it would be
required if the bill were to pass.
4:03:58 PM
CHAIR KREISS-TOMKINS pointed out that slide 3 summarized several
points of agreement, including the notion that ad hoc draws were
bad; a one-account structure was better than the current two-
account structure; and to protect the permanent fund forever for
future generations of Alaskans. He asked whether the
administration was of the same opinions.
MR. BARNHILL confirmed and expressed appreciation for the
chair's acknowledgement. He believed that there were more
shared opinions than points of contention, adding that the
administration put forward these proposals in an effort to find
maximum consensus.
4:05:20 PM
REPRESENTATIVE EASTMAN questioned what "the time of adoption" on
page 3, line 8, of HJR 7 referred to.
MR. BARNHILL explained that the constitutional measure required
a two-thirds vote by each body of the legislature. It would
then be on the ballot for approval by voters at the next general
election - the earliest being November 2022. If it were to pass
by a majority vote, the measure would take effect 90 days from
the date of the election. He further noted that Representative
Eastman was referring to transitional language in Section 3 of
HJR 7, which would apply to the FY 24 budget.
4:07:20 PM
BILL MILKS, Assistant Attorney General, Department of Law,
directed Representative Eastman to Section 1 of [Article XIII]
in the Constitution of the State of Alaska, which specified that
a new amendment becomes effective 30 days after certification of
the election returns.
REPRESENTATIVE EASTMAN sought verification that an amendment was
"adopted" 30 days after the election certification.
MR. MILKS believed it would be reasonable to interpret that an
amendment would be adopted when it becomes effective.
REPRESENTATIVE EASTMAN proposed a scenario in which "the
legislature were to pass a law ... after the vote but before the
amendment [was] effective." He asked whether the amendment
would "tie back to" the newly passed legislation or the
legislation passed prior to the public vote.
MR. MILKS clarified that the only public vote that was legally
effective was the vote on a constitutional amendment. He
pointed out that HB 73 had a provision pertaining to an advisory
vote, which would not create law.
MR. BARNHILL resumed the presentation on slide 4, which reviewed
the mechanics of HJR 7. He explained that the proposed
resolution would transition the permanent fund to a single,
protected account. It would also add the percent of market
value (POMV) distribution method to the constitution. He noted
that in 2018, the legislature statutorily enacted a POMV formula
in Senate Bill 26, which applied the distribution percentage to
a lagging five-year market average of the permanent fund. He
defined a "lagging five-year average" as the first five of the
last six years. Further, under this proposal the legislature
would be responsible for specifying a distribution percentage;
the legislature would also have the authority to fix that
distribution percentage by statute. He added that ultimately,
enshrining that percentage in a constitutional measure could be
accomplished at the legislature's discretion. He conveyed that
HJR 7 would establish the PFD in the constitution by specifying
that a percentage of the POMV distribution must be allocated to
the dividend. He reiterated that the governor was proposing to
leave the specification of that percentage to the legislature to
enact by statute. Alternatively, in HB 73, the governor
proposed that the legislature enact a 50 percent allocation to
the PFD. He further noted that the proposed resolution [HJR 7]
would require a vote of the people to approve any change to the
PFD program.
4:12:35 PM
CHAIR KREISS-TOMKINS questioned whether DOL was of the opinion
that with passage of HJR 7 as written, the statutory formula,
whatever it may be, shall be appropriated and supersede the
legislature's "subjective desires for appropriation."
MR. BARNHILL deferred to Mr. Milks.
MR. MILKS remarked that as drafted, HJR 7 specified that a
portion of the appropriation from the permanent fund shall be
allocated for the PFD. Further, Section 2, subsection (c),
stated that the amount allocated for the dividend shall be
provided by law.
CHAIR KREISS-TOMKINS said he understood the language in the
proposed resolution. He asserted that he was looking for a
direct answer to a direct question: whether DOL was of the
opinion that the formula was constitutionally guaranteed and
effectively superseded the legislature's constitutional right to
appropriate an amount other than the formula.
MR. MILKS said, "that is what HJR 7 provides in Section 2."
CHAIR KREISS-TOMKINS asked for confirmation that Mr. Milks and
DOL believed that "that is what would happen constitutionally."
MR. MILKS replied that's how HJR 7 was drafted. He suggested
that it was consistent with Wielechowski v. State of Alaska, in
which the court decided that without a constitutional amendment,
the PFD amount would be decided by the legislature.
CHAIR KREISS-TOMKINS asserted that he had not heard a direct
answer to his question. He pointed out that the language in the
proposed resolution was not as specific as a constitutional
amendment that were to provide for the dividend formula. He
asked if the broader language in HJR 7 would constitutionally
guarantee whatever formula was in statute, thus superseding the
legislature's constitutional right to appropriation.
MR. MILKS answered yes, this constitutional [resolution]
(indisc.) the dividend and shall provide for a portion of the
amount to the dividend.
4:17:12 PM
REPRESENTATIVE VANCE, referring to the language "as provided by
law" in Section 2, subsection (c), asked whether that provision
would be satisfied "if the legislature chose to come up with a
number as an appropriation."
MR. MILKS explained that "by law" referred to a statute, not a
law that was enacted as an appropriation bill, as specified in
Section 3, subsection (d), of HJR 7.
4:18:45 PM
MR. BARNHILL continued the presentation on [slide 5] and
outlined considerations for a distribution percentage in regard
to HJR 7. He relayed that the permanent fund was "manually"
inflation proofed through an annual appropriation from the ERA
to the Principal, which was calculated by a statutory formula.
However, in a modern one-account structure, such as an
endowment, the inflation proofing would occur through a
distribution percentage. Slide 5 read as follows [original
punctuation provided]:
• Legislature establishes the distribution
percentage in statute
-POMV is currently 5% of the lagging 5-year
average market value
• Limits spending while allowing the fund to grow
to keep up with inflation
• Spend only the real return over time.
-Example:
square4 Total return: 7%
square4 Inflation: 2%
square4 Real return: 5%
• Liming spending to 5% inflation-proofs the
Permanent Fund.
MR. BARNHILL explained that the real return was calculated by
subtracting annual inflation from total return. In modern
institutional fund practice, inflation proofing was accomplished
by only spending the real return while retaining the inflation
return, thus preserving the growth associated with inflation.
He emphasized that inflation could change over time and returns
could be volatile. He reported that the permanent fund's real
return and spending rate varied over time; however, for most
years, the spending rate was less than the real return, which
indicated growth. He noted that in HJR 7, the governor proposed
that the distribution percentage could be statutorily adjusted
by the legislature to prevent overspending from the fund. He
pointed out that the inherent flexibility in HJR 7 was similar
to HJR 1, which used the phrased "not more than 5 percent."
That language would allow the legislature to monitor the rate of
spending versus the rate of return and prevent the fund from
erosion by inflation, he said.
4:23:50 PM
REPRESENTATIVE TARR, returning to Section 2, subsection (c),
inquired about the timing in which the legislature was relayed
the total return and inflation rates. She understood that those
rates were assessments of economic conditions that were
typically received "after the fact."
MR. BARNHILL indicated that there was an established practice of
using the lagging five-year market average; consequently, when
entering a budget cycle, it was clear what the formula was
proposing with respect to spending. He suggested that the
lagging five-year rolling return could be used to determine
whether it was under or over the spending level. He added that
his overarching recommendation was to keep an eye on things by
reporting these figures annually.
REPRESENTATIVE TARR observed that a reporting requirement, which
was absent from the current language, could which be a friendly
inclusion to strengthen the proposal.
MR. BARNHILL acknowledged that it could be included in statute.
He noted that the effective rate of spending had been presented
to the House Special Committee on Ways and Means. He maintained
that he was discussing these figures to emphasize to policy
makers that this was the method to avoid eroding the fund by
inflation.
4:26:59 PM
REPRESENTATIVE VANCE asked why five percent was the appropriate
POMV rate for the fund's long-term sustainability.
MR. BARNHILL conveyed that the governor proposed 5 percent as a
starting place with an expectation of continued discussion. He
explained that 5 percent was standard in the world of
endowments, institutional funds, and foundations. He noted that
in foundations, 5 percent was hardwired into the internal
revenue code to maintain tax exempt status. He understood that
5 percent was raising some anxiety because there was concern
that the current bull market would settle, and it could be
harder to accomplish a real return of 5 percent. He assured
members that 5 percent was currently sound and that investments
had been "phenomenal" this year.
REPRESENTATIVE VANCE inquired about 5 percent in relation to the
tax-exempt status.
MR. BARNHILL clarified that he did not intend to imply that the
permanent fund was subject to the internal revenue code laws on
foundations. He explained that the permanent fund was tax
exempt on the grounds of being a state fund. He noted that
there had been three opinions rendered by outside counsel in the
past 30 years, all of which had affirmed that tax exempt status.
4:30:47 PM
CHAIR KREISS-TOMKINS inquired about policy calls that could
jeopardize the permanent fund's tax-exempt status.
MR. BARNHILL offered to follow up with the requested
information. He recalled that the last opinion, which was
rendered in 2003 by the law firm of Steptoe & Johnson, indicated
that the permanent fund would be tax exempt as long as it was
managed as a state fund.
CHAIR KREISS-TOMKINS asked whether the administration would be
opposed to a lower POMV draw of 4.5 percent in statute or in the
constitution. He relayed that a more restrictive draw would
MR. BARNHILL declined to comment on behalf of the
administration. He recommended treating the present and the
future as equally as possible. Therefore, by growing the fund
at the rate of inflation, today's beneficiaries would have the
same access to the fund as the beneficiaries of tomorrow. He
emphasized that the the notion of intergenerational equity was
important to endowments and cautioned against anything that
would "hardwire" underspending of the fund to save for the
future.
4:34:46 PM
MR. MILKS, in response to a question from Representative
Eastman, said the process proposed in HJR 7 would provide for
one way in which the permanent fund distribution could be
changed: a law passed by the legislature that was then affirmed
by a majority of voters.
REPRESENTATIVE EASTMAN clarified that he was asking about
calculating the amount for the dividend amount and whether that
could be passed through a ballot measure.
MR. MILKS explained that [subsection (b)] in Section 2 of HJR 7
would set a POMV draw from the permanent fund, as provided by
law; subsection (c) of Section 2 specified that a portion of
that amount would be allocated for dividend payments, as
provided by law; subsection (d) of Section 2 further specified
that changing the amount allocated for dividend payments would
require a law passed by the legislature that must then be
approved by voters. He summarized that the proposed resolution
offered a unique process to change the allocation regarding
dividends involving legislation then confirmation by voters.
REPRESENTATIVE EASTMAN stated that his constituents periodically
suggested "[taking] the permanent fund and ... [paying] it out
to Alaskans and be done with the whole permanent fund and
dividends, etcetera." He asked if this resolution were to pass,
how that idea could be achieved.
MR. MILKS said that concept would still require a constitutional
amendment if HJR was adopted.
4:38:10 PM
REPRESENTATIVE EASTMAN considered a scenario in which 32
legislators voted to set the percentage at 100 percent and
designated the entirety to dividends. He questioned what would
stop that situation from happening.
MR. MILKS acknowledged the resolution provided that an amount of
the POMV may be appropriated and that the POMV would be set by
law. Additionally, it would require that an amount of that sum
be paid in dividends, as provided by law. He reiterated that a
change would require the voters' approval.
MR. BARNHILL in response to Representative Eastman, pointed out
that the constitution utilized the word "permanent," which must
mean something, he said. Secondly, he touched on the emerging
concept of prudent spending, noting that Representative
Eastman's suggestion would fall into the realm of imprudent
spending. He resumed the presentation on [slides 6] and
explained that HB 73 would implement HJR 7 by setting the
statutory POMV at 5 percent and the statutory PFD allocation at
50 percent. The bill would also schedule an advisory vote on
the PFD formula to be held 90-120 days after adjournment. He
noted that HB 73 would stand on its own without the passage of
HJR 7.
4:41:56 PM
REPRESENTATIVE VANCE returned to subsection (b) in Section 2 of
HJR 7, which stated that "the legislature may appropriate from
the permanent fund to the general fund an amount as provided by
law". She asked what would occur if the legislature chose not
to appropriate from the permanent fund to the general fund, as
subsection (c) specified that there "shall" be an allocation for
dividends.
MR. BARNHILL deferred to Mr. Milks. Nonetheless, he questioned
whether the legislature would ever find themselves in that
scenario.
MR. MILKS acknowledged that page 2, line 1, states that the
legislature "may" appropriate from the permanent fund while line
6 states that a portion "shall" be appropriated for dividend.
He concluded that if any money came from the permanent fund, a
portion shall be allocated for dividends.
CHAIR KREISS-TOMKINS understood that despite the unlikely
scenario, the administration had confirmed that it would be an
elective decision.
MR. BREFCYNSKI said despite the wording, it was not the
governor's intent that the dividend would be elective. He added
that the administration was fully prepared to engage in
conversations about amending that language if necessary.
4:44:56 PM
REPRESENTATIVE VANCE requested a fiscal model of the fund's
potential growth under this proposal to understand its economic
impact.
MR. BARNHILL said he would be happy to prepare that for the
committee.
4:45:55 PM
CHAIR KREISS-TOMKINS announced that HJR 7 and HB 73 were held
over.
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
4:46:07 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act
relating to sexual abuse of a minor; relating to sexual assault;
relating to the code of military justice; relating to consent;
relating to the testing of sexual assault examination kits; and
providing for an effective date."
4:47:08 PM
The committee took an at-ease from 4:47 p.m. to 4:51 p.m.
4:51:37 PM
CHAIR KREISS-TOMKINS noted that there were experts available to
answer questions pertaining to criminal law and rape kits.
After ascertaining that there were no immediate questions from
committee members, he stated that in Alaska, the legal age of
marriage was 16 or younger with the proper authorization.
4:52:33 PM
REPRESENTATIVE TARR, prime sponsor of HB 5, interjected to note
that for 16- and 17-year-olds, marriage required written
parental consent. Marriage involving 14- or 15-year-olds
required written parental consent, as well as a court hearing in
which the parents and the minor child were involved. Permission
from the Superior Court was also required in addition to proof
that the marriage was in the best interest of the minor. She
reiterated for purposes of the proposed legislation, that 16-
and 17-year-olds could get married with written parental
consent.
CHAIR KREISS-TOMKINS in regard to statutory rape, questioned
whether it mattered if the individuals were married.
REPRESENTATIVE TARR understood that sexual assault laws applied
to married couples. She explained that HB 5 included a
provision to account for [sexual assault] involving, for
example, a 16-year-old and a 27-year-old who were unmarried.
CHAIR KREISS-TOMKINS asked Mr. Skidmore to comment on the age of
consent versus age of marriage in Alaska.
4:55:14 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Department of Law, in response to Chair Kreiss-Tomkins,
said he agreed with Representative Tarr's analysis. He
explained that in terms of consent, marriage wasn't a factor in
regard to sexual assault laws. Alternatively, he speculated
that when considering statutory rape of a minor - also referred
to sexual abuse of a minor (SAM) - [marriage] might only be a
factor if the age difference between the two individuals was
more than 10 years, should the bill pass. He added that was
unsure whether marriage would be an exception under those
circumstances.
CHAIR KREISS-TOMKINS requested that Mr. Skidmore follow up with
information on whether a marital exemption exists legally.
4:56:47 PM
JAMES STINSON, Director, Office of Public Advocacy, Department
of Administration, understood that there was not a specific
provision for SAM statutes. He noted that there could be an
affirmative defense made for consensual sexual activity within a
marriage in that age range; however, he maintained that one did
not currently exist for SAM charges.
4:57:39 PM
REPRESENTATIVE EASTMAN questioned whether marriages from other
states or jurisdictions with a lower age of consent were
recognized in Alaska.
MR. SKIDMORE answered yes, marriages from other states were
recognized in Alaska; however, he divulged that it was not an
area of law that he was explicitly familiar with.
4:58:36 PM
REPRESENTATIVE CLAMAN sought to confirm that Mr. Stinson had
said that there was no marital defense for a SAM charge at this
time.
MR. STINSON confirmed to the best of his knowledge.
4:59:33 PM
RENEE MCFARLAND, Deputy Public Defender, Public Defender Agency,
Department of Administration, stated that AS 11.41.445 made
marriage an affirmative defense for the purposes of the SAM
statute if the victim was the legal spouse of the defendant
unless the offense was committed without the victim's consent.
REPRESENTATIVE CLAMAN sought to confirm that sexual relations
between a 17-year-old and a 30-year-old would be a crime unless
they were married.
MR. SKIDMORE confirmed [that before the marriage it would be a
crime and after they were married it would not].
REPRESENTATIVE CLAMAN asked for verification that a marriage in
another state at the age of 16 would be valid in Alaska for the
purposes of this affirmative defense.
MR. SKIDMORE sought to confirm that Representative Claman had
asked whether the affirmative defense would be recognized for
ages 16 and 17.
REPRESENTATIVE CLAMAN confirmed.
MR. SKIDMORE answered yes, [that that the affirmative defense
would be recognized for a 16-year-old and a 17-year-old.]
5:02:05 PM
REPRESENTATIVE VANCE asked for confirmation that the bill was
proposing "that anything less than 10 years with a minor under
the age of 18 would no longer be considered statutory rape."
MR. SKIDMORE attempted to clarify the question.
REPRESENTATIVE VANCE inquired about the statutory rape statutes.
MR. SKIDMORE explained that SAM statutes indicated that minors
did not have the ability to consent at age 13, 14 or 15 when
there was a certain age gap between the offender and the victim.
For those minors (ages 13, 14, or 15), the proposed legislation
would make it a higher-level offense when the age gap between
the victim and the offender was 10 years; additionally, with a
10-year age gap between the victim and the offender, the bill
would add a conduct if the victim was 16 or 17.
CHAIR KREISS-TOMKINS concluded that in present law, a 16-year-
old could have consensual sex with a 26-year-old (or someone
older) and a 17-year-old could have consensual sex with a 27-
year-old (or someone older); however, should the bill pass,
those sexual relations would constitute SAM in the first degree.
5:05:08 PM
REPRESENTATIVE VANCE requested a visual representation of
present statutes compared to the proposed legislation to better
understand the implications of the bill.
REPRESENTATIVE TARR directed attention to Section 4, paragraph
(1), on page 3, lines 27-31 of SSHB 5. She explained that for
ages 13, 14, and 15, the bill would increase the "penalty" if
the age gap [between the victim and the offender] was 10 or more
years. Additionally, for 16- and 17-year-old victims, the bill
would create a crime when the age gap between the victim and the
offender was 10 or more years.
CHAIR KREISS-TOMKINS pointed out that there could be scenarios
in which a 17-year-old and a 27-year-old were in a consensual
sexual relationship. He understood that SAM 1 was an
unclassified felony with a minimum of 20 years in prison;
therefore, per previous conversations about rates of
incarceration and "proportionality," he said he wanted to flag
that as an area that was slightly concerning.
REPRESENTATIVE TARR said in regard to the sentencing ranges, she
was trying to work with a number of organizations to balance
victims' rights against offenders' rights. She relayed that on
average, perpetrators of child sexual abuse had more than 100
victims; further, that there was no standard for effective
treatment. She added that reoffending and recidivism was common
for sex offenses. She stated that the level of harm was
troubling and expressed her hope that as a result of changing
the laws, high-frequency perpetrators would be incarcerated.
5:11:30 PM
REPRESENTATIVE CLAMAN sought to confirm that presently, a 16- or
17-year-old could legally engage in sexual relations with a 30-
year-old.
MR. SKIDMORE replied yes, as long as the sexual conduct was
consensual. He added that no SAM statute specified that a 16-
or 17-year-old could not consent.
REPRESENTATIVE CLAMAN inquired about DOL's position on the bill
in its current form.
MR. SKIDMORE said DOL was neutral.
REPRESENTATIVE CLAMAN asked whether there had been any research
on the potential impact of this bill on Native communities,
which were already overrepresented in the Department of
Corrections (DOC).
REPRESENTATIVE TARR answered yes, she explained that she had
worked closely with Alaska Native women in drafting the proposed
legislation to reflect their experiences. More recently, she
reported working with the Alaska Native Justice Center, as well
as the Alaska Network on Domestic Violence and Sexual Assault.
She maintained that the goal was to listen to survivors and
incorporate their personal experiences in balance with the
criminal justice system response.
REPRESENTATIVE CLAMAN said he appreciated that response, but it
lacked statistical data on the real overrepresentation of
minority communities in Alaska's jails. He asked a statistical
analysis on how the bill would impact the prison population.
REPRESENTATIVE TARR stated that she did not, as she did not
possess the resources to conduct such research. She maintained
that her strong support for human rights and survivors was
always reflected in the legislation she sponsored.
5:14:34 PM
REPRESENTATIVE VANCE inquired about the percentage of sexual
assault offenders in DOC facilities. She reported that at least
59 percent of Alaskan women had experienced violence in an
intimate relationship. She relayed that her constituents would
want to exercise the full extent of the law against sexual
assault crimes especially against children. She opined that
Alaskans were not thinking about the prison "capacity" when it
came to justice for crimes against children. She urged her
fellow lawmakers to take those beliefs into account.
CHAIR KREISS-TOMKINS asked Ms. Meade to estimate the percentage
of inmates that were incarcerated in Alaska correctional
facilities for crimes of sexual misconduct.
5:16:53 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, declined to estimate that figure
and deferred the question to DOC.
REPRESENTATIVE VANCE questioned the percentage of sexual crimes,
either fully prosecuted or not, that came through the courts.
MS. MEADE offered to follow up on the number of sexual
misdemeanors and felonies that were filed.
5:17:51 PM
REPRESENTATIVE CLAMAN explained that his prior request for data
stemmed from apprehension about the consistently increasing
prison sentences without any meaningful benefit in terms of
public safety. He expressed his concern about the impending
impacts on minority communities. He acknowledged Representative
Vance's comments and the importance of imposing "no mercy"
against some crimes; however, he recalled his experience in
rural communities where the threat of 15- or 20-year sentences
factor into people's unwillingness to come forward. He conveyed
apprehension about the idea of incarcerating a 30-year-old who
was engaging in consensual sex with a 17-year-old and sending
him/her away for a minimum of 20 years on an unclassified
felony. He reiterated that he asked the data related questions
to better understand the impact that these decisions would have.
He maintained his belief that the intention of the proposed
legislation was well placed, but he was not sure it would result
in the desired effect.
REPRESENTATIVE TARR said she agreed with Representative Claman
and Representative Vance. She recalled that when she initially
presented the legislation, she had questioned the appropriate
"criminal justice response" and the appropriate length of
incarceration to no longer cause harm. She said she was not
capable of answering that alone or hearing the stories of human
suffering. She reiterated that she was asking for help and
emphasized that she would be receptive to ideas. She further
noted that she had considered a sentence of 7-10 years for
first-time offenders. She expressed her hope that as a woman
who had never felt safe living in Alaska, the legislature would
give the proposed legislation serious consideration and evaluate
the human rights of everyone involved.
5:22:57 PM
CHAIR KREISS-TOMKINS asked Mr. Skidmore to speak to the data on
declined prosecutions and why they occur; additionally, he asked
to what extent an insufficient definition of consent was a
factor.
MR. SKIDMORE said he did not know the rate of declinations;
however, the vast majority of declinations were due to
insufficient evidence, he reported. He explained that much of
that was associated with the nature of sexual assault, where
they occur, and the type of evidence that was generally
available. He opined that changing the definition would not
change the ability to accept a significantly higher number of
cases for evidentiary reasons; nonetheless, it would allow cases
that had been declined as a result of "a lack of use of force or
coercion" to be accepted. He shared his belief that it would be
challenging to provide a statistic analysis of how [the proposed
legislation] would increase cases, noting that the same
challenges would continue to exist because many sexual assaults
occur between two individuals only; therefore, changing the
definition would not likely change the evidence of consent
that's available. He added that despite the continuous
challenges, [DOL] was working on ways to improve investigatory
practices and prosecutorial training. He concluded by
reiterating that sexual assault would continue to be a difficult
crime to prosecute.
CHAIR KREISS-TOMKINS sought to confirm that Mr. Skidmore had
stated that the reason many prosecutions were declined was due
to a deficit of evidence rather than the deficient definition of
consent.
MR. SKIDMORE answered yes. He went on to explain that the
numbers indicated that there was a significant difference in the
number of cases reported to law enforcement compared to the
number of cases referred to DOL. He added that he was unsure of
whether the unrefereed cases were driven by the definitional
problem or a lack of evidence. For that reason, he said he was
hesitant to definitively quantify the proposed legislation's
potential impact.
5:28:56 PM
REPRESENTATIVE CLAMAN understood that the present definition
that had been applied by both by law enforcement officers and
the prosecutor's office was based on the court analysis of the
statute rather than the statutory language itself. He asked
whether that was correct.
MS. MCFARLAND replied that she was not aware of many cases in
which the court had strayed too far from the language in the
statute. Further, she relayed that the court had read a
requirement into the sexual assault statutes that the defendant
recklessly disregard the lack of consent, which was not provided
in the statute itself.
REPRESENTATIVE CLAMAN recalled hearing that the consent language
focused the inquiry more on the victim and less on the offender
by inviting the defense to raise questions about how the victim
may or may not have communicated his/her consent or thereof in
the past. He asked if the statute change would put more focus
on the victim or the offender.
MR. SKIDMORE said he did not have a sense whether this would
change how the defense bar sought to defend sexual assault
cases. He opined that the issue of consent was a question of
the perpetrator's assessment of that lack of consent; however,
talented and creative defense attorneys could return to how that
assessment was influenced by a victim's words or conduct. He
said it would always be one of the issues involved in litigating
these types of cases.
5:33:14 PM
REPRESENTATIVE CLAMAN asked whether the proposed changes to the
consent law would put more focus on the victim compared to the
current statute.
MS. MCFARLAND relayed that the Public Defender Agency believed
that compared to the current definition, the proposed changes
would switch the focus to the victim. She added that the
present statute focused on the defendant's conduct of coercing
the victim, whereas the proposed definition entails a freely
given reversible agreement. She opined that switching from
whether the defendant coerced the conduct to whether there was a
freely given agreement would shift the focus from the
defendant's conduct to the victim.
REPRESENTATIVE CLAMAN asked Ms. McFarland to illustrate her
previous statement with a hypothetical scenario.
MS. MCFARLAND said it was hard to come up with a hypothetical on
the spot because the proposed definition expanded the type of
conduct that would fall under the statute.
REPRESENTATIVE CLAMAN directed the question to Mr. Stinson.
5:36:28 PM
MR. STINSON remarked:
Currently, there's essentially the rape the shield
statute which prevents impermissible evidence being
admitted ... 'because a victim had sexual relations
with certain people, they are therefore likely to have
had sexual relations with the defendant' - that's
impermissible. But evidence of a victim's prior
sexual conduct is admissible if it's relevant to a
material issue in the case. So, for example, if their
individual relationship had a certain type of consent
or certain types of ritual or habit - that might be
admissible. I think when you're dealing with
affirmative consent, there is at least the possibility
that a creative attorney could make the argument that
what they're seeking to admit is testimony from other
people who may have been a partner of that person who
had consent in a certain way from that victim. And,
so, I think the argument there would be, we're not
admitting this for the purpose of showing that because
the victim had sexual relations with these other
people that therefore, it's likely that she also
consented to the defendant. ... 'For example, this
person always wink, says these words, and does this,
and that's their signal that they are ready to engage
in relation.' If in a small community you had people
that had testimony like that, I could see that there
would be an argument before a trial court judge that
the manner of affirmative consent is what you're
seeking to admit and that its irrelevant because the
defendant had awareness that that was the type of
affirmative consent that that person gives and that it
was the same type of affirmative consent given in the
past. So, I can see an attorney making that type of
arguments. ... I think that that is an example of how
it potentially bends ... the rape shield law.
REPRESENTATIVE CLAMAN proposed a hypothetical scenario in which
a person met another individual in a bar wherein they drank and
danced "suggestively" before going back to one of his/her homes
and engaging in [sexual] relations. The next night the same
person engaged in similar conduct with a different person who
had witnessed the actions of the prior night, which was followed
by an allegation of nonconsensual sex. He asked whether this
was the kind of scenario that Mr. Stinson had referenced.
MR. STINSON said Representative Claman's scenario would be more
tenuous and would become fact specific about what actually
happened after the bar. He explained that the scenario he [Mr.
Stinson] had posed was alluding to a community reputation. He
reiterated that these scenarios typically become fact specific
and whether a trial judge would admit evidence of that would
depend on those specific facts.
5:41:33 PM
REPRESENTATIVE VANCE asked whether the law was more inclined to
lean on the victim's reputation or whether he/she gave consent.
MR. STINSON stated that the law was "absolutely designed" to
look at whether or not the individual gave consent. He added
that the purpose of the rape shield statute was to prohibit
generalized evidence of somebody's "reputation" in the
community. He explained that these scenarios were being
examined on whether a pattern of specific types of affirmative
consent would rise to a level of relevancy that a court could
admit with a change in the law.
MR. SKIDMORE agreed with Mr. Stinson that the rape shield law
was designed to protect against someone's reputation. As a
prosecutor, he maintained that just because a person agreed to
sleep with one person did not mean that they agreed to sleep
with someone else. He continued to explain that just because an
individual engaged in an activity, such as dancing, with one
person, it could not be construed as consent. He concluded that
this law was trying to convey that affirmative consent must be
sought. Further, he believed that if this law were to pass,
there would be more litigation around the rape shield statute
and many defense lawyers would attempt creative arguments to
admit different types of evidence. Whether or not courts admit
it, he said, would be fiercely litigated.
CHAIR KREISS-TOMKINS asked if the legislature were to adopt a
definition of affirmative consent for sexual relationships, how
consent while given in an impaired state would be seen under the
law.
5:45:45 PM
MR. SKIDMORE explained that he had not seen any case law
suggesting that intoxication created the inability to consent.
Nonetheless, he said it was possible to drink to the point in
which someone was not capable of consenting. He added that the
law examined when a person became incapacitated from the level
of intoxication. Further, he said he was unsure how the courts
would ultimately interpret this issue in terms of the proposed
definition of freely given consent. He maintained he could not
imagine that simply because one person had one or two drinks of
alcohol, that he/she was incapable of consenting. He conveyed
that it was still incumbent upon the defendant to recklessly
disregard a substantial and unjustifiable risk that there was
not consent. He defined reckless as "the disregard of a
substantial and unjustifiable risk that that circumstance
exists." He further noted that recklessness in its definition
was from the perspective of the sober person; therefore, if the
defendant was intoxicated, they were still evaluated from the
standpoint of a sober person.
5:48:23 PM
CHAIR KREISS-TOMKINS sought to confirm that Mr. Skidmore had
suggested that if an individual had been drinking and gave
consent, the courts would adjudicate where the line was between
incapacitation, which would constitute sexual assault, and
freely given consent. He asked whether that was a fair summary.
MR. SKIDMORE confirmed. He added that at some point, courts
would provide guidance to the jury, which allowed them to decide
on whether the facts as they were presented met the elements of
the offense.
CHAIR KREISS-TOMKINS asked Mr. Stinson how intoxication would
relate to freely given affirmative consent.
MR. STINSON agreed with Mr. Skidmore that if intoxication did
not amount to incapacitation, the individual should be able to
give consent; however, he noted that there could be fact-
specific scenarios that cause pause.
CHAIR KREISS-TOMKINS inquired about "sex with an incapacitated
person" under current law.
MR. STINSON believed that sexual assault [in the second degree]
was a class A felony; therefore, engaging in sexual relations
with an individual who was asleep or incapacitated was illegal
and considered sexual assault.
REPRESENTATIVE TARR pointed out that Section 5, paragraph (1),
of SSHB 5 was intended to address Representative Claman's line
of questioning regarding the rape shield law, as referencing an
individual's "reputation" was often how survivors were attacked
in the court room.
5:53:05 PM
CHAIR KREISS-TOMKINS considered a scenario in which a married or
unmarried couple had a healthy, consensual relationship. He
asked how those cases would be treated when there was no word or
action of affirmative consent, but it was a consensual sexual
encounter between the two individuals.
MR. SKIDMORE said the bill was written to consider words,
conduct, and the totality of the circumstances. He believed
that those factors in addition to the previous relationship,
conduct, and understanding between the individuals would all
play into whether there was a substantial and unjustifiable risk
that there was not consent in that particular circumstance. He
reiterated that all of that would be taken into consideration
and should be able to protect against a misunderstanding. He
opined that those considerations would also make some cases more
difficult for prosecution to prove; nonetheless, he believed it
was the only way that this could truly be approached from both a
policy and a legal perspective.
MR. STINSON conveyed some concern from the defense perspective
that adding "specific to the conduct at issue" and the
additional definition of "freely given" would compartmentalize
each sexual contact or separate the course of sexual conduct.
He said it seemed to suggest that a positively expressed word or
action would be necessary for every step of the way. He
concluded that the defense perspective was fearful of whether
normative sexual conduct could be captured. He remarked:
I understand that you would still have a reckless
mental state. I guess the question I would pose is
that if it has to be specific to the conduct at issue
and if it has to be positively expressed by word or
action then, I think, it's difficult at least on paper
to say that you wouldn't be reckless going up and
having sexual contact with somebody without a
positively expressed word or action because it's
specific to the conduct at issue.
MR. STINSON said he would be happy to hear Mr. Skidmore's
perspective as to whether it would be a reckless action by
default to ever presume consent, even within the context of a
relationship, arguably.
MR. SKIDMORE understood the concept expressed by Mr. Stinson;
however, he said he fundamentally disagreed on the basis that
within a relationship with that level of consent, the
individuals typically knew that certain things were okay. He
conveyed that he had difficulty imagining a situation involving
two people in a long-term relationship being submitted to law
enforcement and prosecutors, or that a jury would find beyond a
reasonable doubt that there wasn't affirmative consent by words
or conduct due to the history that would be found within that
relationship. Nonetheless, he said that issue had been a topic
of conversation amongst prosecutors.
6:00:18 PM
CHAIR KREISS-TOMKINS questioned how the history of a healthy,
consensual relationship would be taken into account if that was
not allowable with the rape shield law.
MR. SKIDMORE explained that the rape shield law protected
against bringing in instances of sex with a different person.
He reiterated that the rape shield law was intended to protect
against the assumption that just because an individual had been
willing to engage in sexual conduct with one or more partners,
he/she was willing to engage in sex with literally anybody. He
argued that he could find a case that allowed previous sexual
conduct between the same people to be deemed relevant in a case
of sexual conduct.
6:02:14 PM
REPRESENTATIVE CLAMAN returned to the topic of intoxication. He
referenced AS 11.81.630, as well as the definition of
"knowingly" in AS 11.81.900(a)(2) and "reckless" in AS
11.81.900(a)(3), all of which were focused on intoxication as a
defense raised by the defendant. He sought to confirm that that
the defendant was considered as if he/she was sober. He asked
whether that was correct.
MR. SKIDMORE replied in the affirmative. He explained that in
considering intoxication as a defense, the focus was on how
intoxication impacted the defendant's ability to form the
required "mens rea," or mental element. Further, he was unsure
how the question of whether intoxication or any consumption of
alcohol would impact a victim's ability to provide consent would
be answered.
REPRESENTATIVE CLAMAN clarified that he was not asking about the
extreme scenarios in which an individual may have been on the
margin of being able to give consent because of the level of
intoxication. He inquired about someone who was considered a
"happy drunk" and whether that would be meaningful in whether
that person would be able to give consent.
MR. SKIDMORE answered yes, both the level of the victim's
intoxication and whether he/she was consenting in that
circumstance would be considered. He said he did not see
anything that would suggest that simply because that person had
been drinking that it took away his/her ability to consent.
CHAIR KREISS-TOMKINS asked Mr. Stinson to comment from the
defense bar perspective.
6:06:52 PM
MR. STINSON agreed with Representative Claman that it was
designed to prevent a defendant from arguing that a mental state
was not met due to intoxication, which only happened with
specific intent crimes. He explained that while he agreed with
Mr. Skidmore that there was not a legal bar for the victim to
consent in that scenario, the defendant would be looked at
potentially as a sober person and whether he/she consciously
disregarded the substantial and unjustifiable risk that there
was not affirmative consent. He concluded that a "happy drunk"
who was not incapacitated could give consent; further, a
defendant would not be able to use intoxication as any kind of
defense for misperceiving consent.
MS. MCFARLAND opined that the proposed legislation would likely
increase the amount of litigation in these cases, as it would
present many questions about what it means to consent and how
intoxication plays into that.
6:10:39 PM
MS. MCFARLAND in response to a question from Representative
Claman, stated that the state would consider the conduct at the
time and would have to prove that there was not consent and that
that the defendant recklessly disregarded that consent.
REPRESENTATIVE TARR pointed out that the fiscal notes indicated
that the proposed legislation would result in additional
litigation. Further, she emphasized that women were not
included in the process of drafting the current laws [regarding
sexual assault] nor were they involved in the consideration of
this policy. Additionally, as a disproportionate number of
survivors were women, she said she wanted to make sure that
their voices were not lost. She believed that women wanted
affirmative consent because in the current form of the law,
their right to consent had already been taken away. She
referenced the 50-60 letters of support and opined that the
proposed legislation should advance in the interest of public
safety.
6:13:30 PM
CHAIR KREISS-TOMKINS believed that members were united on the
desired outcome; however, he wanted to ensure that he was
confident in understanding the framework when considering
legislation that involved changes to criminal law. He noted his
appreciation for the passion Representative Tarr had given to
this issue for many years.
REPRESENTATIVE TARR further clarified that in the possibility
the legislative record would be looked to in future litigation
regarding the definition of affirmative consent, the intent was
not to require a verbal agreement for each [compartmentalized]
act during a sexual encounter. She added that words, actions,
and the totality of the situation were intended to be included.
6:15:09 PM
CHAIR KREISS-TOMKINS directed the following question to Mr.
Stinson:
If you have a couple in a healthy consensual
relationship and ... one person is looking to initiate
a sexual encounter and ... they put their hand on the
other person in a sexual manner, which falls within
the scope of some of the sexual misconduct laws in the
hopes of initiating ... sex. How do you look at that
in terms of [whether that would fall] within the
definition of sexual misconduct and affirmative
consent framework and where are the lines?
MR. STINSON acknowledged that the legislative perspective was
helpful to state on the record because the goal was not to
criminalize normative sexual behavior. That being said, he
expressed concern that within the affirmative consent framework,
the ultimate goal was to ensure that one party wouldn't have to
do something to express the fact that he/she was not consenting;
instead, he/she would have to do something that would
[affirmatively] express consent. He explained that in looking
at a normative sexual relationship between two people, they may
without initiate sexual contact without any prompting or consent
specific to the conduct at issue. He said typically, within
those types of relationships, a person would either respond
positively or negatively. At that point, in a committed
relationship, even sexual contact could rise to the level of
criminality if an indication to stop was not listened to. He
maintained that the defense was concerned that a plain reading
of the proposed legislation could be interpreted counter to the
legislature's desired outcome. He continued to convey that the
definition of affirmative consent in the bill seemed to suggest
that there would have to be some initiation on the part of the
person receiving the sexual contact or sexual advance. He
concluded that ultimately, deciding whether to further clarify
that language would be a policy call on behalf of the
legislature. Additionally, he surmised that the "conduct at
issue" was included in the legislation to capture the scenario
in which a person did not give expressed consent, nor did he/she
resist or say "stop." He said it would also be up to lawmakers
to decide what responsibility, if any, would be on another party
to object to a course of sexual contact at a given time.
6:20:36 PM
REPRESENTATIVE STORY expressed her appreciation for the
discussion and shared her belief that something had to be done
about the definition [of consent]. She expressed her hope that
the committee would continue its work on the proposed
legislation to ensure that everyone was comfortable with the
final product.
REPRESENTATIVE CLAMAN observed that sometimes hearings raise
more questions than answers. He said he would prefer the
opportunity to follow up and reflect on some of these questions.
REPRESENTATIVE VANCE asked Representative Tarr why the language
"competent person" and "may be reversed at any time for any
reason" was not included in the bill.
REPRESENTATIVE TARR stated that the original definition [of
consent] included "by a competent person;" however, the language
was removed after conversing with DOL about the statutory
redundancy of mental state, which was addressed in sexual
assault in the second degree, she relayed. She explained that
"reversible" was included in the definition to maintain
consistency with the current education regarding consent. She
said the goal was to utilize the right language to allow for
effective prosecution of sexual assault crimes; therefore, if
"specific to the conduct at issue" would be legally problematic,
it shouldn't be included.
6:27:04 PM
CHAIR KREISS-TOMKINS announced that HB 5 was held over.
6:28:21 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 6:28
p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| James Cockrell Resume_Redacted.pdf |
HSTA 4/20/2021 3:00:00 PM |
|
| HJR 7 Fiscal Note - 1-2-021821-GOV-N.PDF |
HSTA 4/20/2021 3:00:00 PM |
HJR 7 |
| HJR 7 Transmittal Letter - 01.19.21.pdf |
HSTA 4/20/2021 3:00:00 PM |
HJR 7 |
| HJR 7 Version A.PDF |
HSTA 4/20/2021 3:00:00 PM |
HJR 7 |
| HB 73 Fiscal Note - 1-2-021821-REV-N.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Fiscal Note - 2-2-021821-GOV-Y.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Fiscal Note - 3-2-021821-GOV-Y.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Transmittal Letter - 01.19.21.pdf |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Version A.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HJR 7 and HB 73 Hearing Request Memo.pdf |
HSTA 4/20/2021 3:00:00 PM |
HB 73 HJR 7 |
| HJR 7 and HB 73 PowerPoint - Dept of Revenue 041921 - Final.pdf |
HSTA 4/20/2021 3:00:00 PM |
HB 73 HJR 7 |