Legislature(2021 - 2022)GRUENBERG 120
04/27/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB163 | |
| HB102 | |
| HB157 | |
| HB118 | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 163 | TELECONFERENCED | |
| += | HB 102 | TELECONFERENCED | |
| += | HB 157 | TELECONFERENCED | |
| += | HB 118 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
April 27, 2021
3:06 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
HOUSE BILL NO. 163
"An Act relating to vehicle title applications."
- HEARD & HELD
HOUSE BILL NO. 102
"An Act relating to the state insurance catastrophe reserve
account; and providing for an effective date."
- MOVED HB 102 OUT OF COMMITTEE
HOUSE BILL NO. 157
"An Act requiring the disclosure of the identity of certain
persons, groups, and nongroup entities that expend money in
support of or in opposition to an application filed for a state
referendum or recall election; and providing for an effective
date."
- MOVED HB 157 OUT OF COMMITTEE
HOUSE BILL NO. 118
"An Act relating to state identifications and driver's licenses
for persons in the custody of the Department of Corrections;
relating to the duties of the commissioner of corrections;
relating to living conditions for prisoners; 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: HB 163
SHORT TITLE: FORM OF SIGNATURE ON VEHICLE TITLE
SPONSOR(s): REPRESENTATIVE(s) SCHRAGE
04/05/21 (H) READ THE FIRST TIME - REFERRALS
04/05/21 (H) CRA, STA
04/13/21 (H) CRA AT 8:00 AM BARNES 124
04/13/21 (H) Heard & Held
04/13/21 (H) MINUTE(CRA)
04/15/21 (H) CRA AT 8:00 AM BARNES 124
04/15/21 (H) Moved HB 163 Out of Committee
04/15/21 (H) MINUTE(CRA)
04/16/21 (H) CRA RPT 6DP
04/16/21 (H) DP: MCCABE, PRAX, MCCARTY, DRUMMOND,
SCHRAGE, HANNAN
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 102
SHORT TITLE: STATE INSUR. CATASTROPHE RESERVE ACCT.
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, FIN
04/08/21 (H) STA AT 3:00 PM GRUENBERG 120
04/08/21 (H) Heard & Held
04/08/21 (H) MINUTE(STA)
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 157
SHORT TITLE: APOC; REPORT REFERENDA/RECALL CONTRIBUTOR
SPONSOR(s): RASMUSSEN
03/31/21 (H) READ THE FIRST TIME - REFERRALS
03/31/21 (H) STA, JUD
04/17/21 (H) STA AT 3:00 PM GRUENBERG 120
04/17/21 (H) Heard & Held
04/17/21 (H) MINUTE(STA)
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 118
SHORT TITLE: EXPANDING PRISONER ACCESS TO COMPUTERS
SPONSOR(s): KREISS-TOMKINS
03/01/21 (H) READ THE FIRST TIME - REFERRALS
03/01/21 (H) STA
03/18/21 (H) STA AT 3:00 PM GRUENBERG 120
03/18/21 (H) Heard & Held
03/18/21 (H) MINUTE(STA)
03/23/21 (H) STA AT 3:00 PM GRUENBERG 120
03/23/21 (H) Heard & Held
03/23/21 (H) MINUTE(STA)
04/01/21 (H) STA AT 3:00 PM GRUENBERG 120
04/01/21 (H) Heard & Held
04/01/21 (H) MINUTE(STA)
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 5
SHORT TITLE: SEXUAL ASSAULT; DEF. OF "CONSENT"
SPONSOR(s): REPRESENTATIVE(s) TARR
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD
03/26/21 (H) SPONSOR SUBSTITUTE INTRODUCED
03/26/21 (H) READ THE FIRST TIME - REFERRALS
03/26/21 (H) STA, JUD
03/27/21 (H) STA AT 1:00 PM GRUENBERG 120
03/27/21 (H) Heard & Held
03/27/21 (H) MINUTE(STA)
04/13/21 (H) STA AT 3:00 PM GRUENBERG 120
04/13/21 (H) Heard & Held
04/13/21 (H) MINUTE(STA)
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
04/20/21 (H) Heard & Held
04/20/21 (H) MINUTE(STA)
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE CALVIN SCHRAGE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 163, as the prime sponsor.
LAUREN MACVAY, Chief Executive Officer
True North Federal Credit Union
Juneau, Alaska
POSITION STATEMENT: During the hearing on HB 163, provided
invited testimony on the proposed legislation.
JEFFERY SCHMITZ, Director
Division of Motor Vehicles
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions pertaining to HB 163.
PALOMA HARBOUR, Fiscal Management Analyst
Office of Management & Budget
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
102.
CRYSTAL KOENEMAN, Staff
Representative Sara Rasmussen
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing on HB 157, answered
questions on behalf of Representative Rasmussen, prime sponsor.
HEATHER HEBDON, Executive Director
Alaska Public Offices Commission
Anchorage, Alaska
POSITION STATEMENT: Answered questions pertaining to HB 157.
LAURA BROOKS, Division Operations Manager
Division of Health and Rehab Services
Department of Corrections
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
118.
JAMES STINSON, Director
Office of Public Advocacy
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
5.
JOHN SKIDMORE, Deputy Attorney General
Office of the Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
5.
RENEE MCFARLAND, Deputy Public Defender
Alaska Public Defender Agency
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
5.
ACTION NARRATIVE
3:06:48 PM
CHAIR JONATHAN KREISS-TOMKINS called the House State Affairs
Standing Committee meeting to order at 3:06 p.m.
Representatives Tarr, Story, Claman, Vance, Kaufman, and Kreiss-
Tomkins were present at the call to order. Representative
Eastman arrived as the meeting was in progress.
HB 163-FORM OF SIGNATURE ON VEHICLE TITLE
3:08:15 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be HOUSE BILL NO. 163, "An Act relating to vehicle title
applications."
3:08:43 PM
REPRESENTATIVE CALVIN SCHRAGE, Alaska State Legislature, as
prime sponsor, introduced HB 163. He paraphrased the sponsor
statement, which read as follows [original punctuation
provided]:
House Bill 163 eliminates the current requirement for
ink signatures on applications for titles and title
transfers within the Department of Motor Vehicles. HB
163 gives flexibility to the DMV to begin using
electronic signatures.
HB 163 does not force the use of electronic
signatures. AS 28.10.211(b) states that "applications
for title or transfer of title must contain the
signature in ink of the owner, or if there is more
than one owner, the signature in ink of at least one
of the owners and the name of each owner stated in the
conjunctive or in the disjunctive." HB 163 deletes the
words "in ink" in both places.
Under the Uniform Electronic Transactions Act of 2004
(AS 09.80.010-09.80.195) electronic signatures satisfy
the general definition of a signature unless otherwise
prohibited. Since the current statute explicitly
requires "ink" signatures for title applications, the
DMV cannot accept electronic signatures.
HB 163 will give the Department the latitude to
determine for itself if it wants to accept electronic
signatures in the cases of title transfers and title
applications. Covid has taught us that electronic
signatures can provide extra convenience to Alaskans
in remote or rural parts of the state and can provide
long-term efficiencies for the DMV.
3:11:42 PM
LAUREN MACVAY, Chief Executive Officer, True North Federal
Credit Union, said she was speaking in favor of HB 163. She
stated that although simple, the bill would open the door to a
significant amount of progress. She explained that electronic
signature was used for many important things in Alaska; however,
vehicle titling required a "wet" signature. She reported that a
growing number of other states were implementing electronic lien
and titling solutions to various degrees, but the "in ink"
language in AS 28.10.211(b)(1) was preventing Alaska from
exploring the benefits of modern technology, which had impacts
on the DMV and its operation, as well as True North and its
members. She explained that "ESign" had enabled True North to
acquire members all throughout the state, despite its branches
being in Juneau and Anchorage. Further, True North could open
new memberships and close consumer and home equity loans
electronically, which was a huge benefit when the pandemic hit.
She emphasized that the credit union could not, however,
complete any loan electronically that required a title
application to secure the lien. When that occurred, the loan
was held up until the original signatures were obtained.
Another option, she explained, was to put the burden of securing
the title work back on the borrower, then closing the loan and
providing the borrower with the title application, from which
point that individual would be required to go through the DMV
process. She added that in that scenario, the title would be
forwarded back to the credit union at the end. She said neither
scenario was a good option, and both created inconveniences for
everyone involved. She stated that if True North was able to
secure electronic signature of title paperwork, the process
would be far more convenient for members and more efficient for
the credit union. She reiterated that by removing the words "in
ink" from statute, the proposed legislation would remove the
critical first barrier to progress. She encouraged the
committee to move the bill forward for that reason.
3:14:55 PM
REPRESENTATIVE TARR sought to understand the relationship
between the Division of Motor Vehicle (DMV) component and the
bank component. She specifically inquired about a scenario
involving a cash transaction at the DMV.
3:15:40 PM
JEFFERY SCHMITZ, Director, Division of Motor Vehicles,
Department of Administration, asked Representative Tarr to
rephrase her question.
REPRESENTATIVE TARR proposed a scenario in which someone was
[buying] a car from another individual with cash and without the
involvement of a bank. She asked how the title transfer would
occur in that circumstance.
MR. SCHMITZ stressed that the proposed legislation would only
remove the impairment created by the "in ink" requirement;
further, the business procedures that would be implemented after
changing the language had not been vetted in detail due to the
current statutory language. He reiterated that there had been
no evaluation on how a title transfer or cash transaction would
actually transpire; therefore, he declined to comment on that
scenario. He maintained that the proposed legislation would
simply "open the door" to vetting the process. He surmised that
a customer-to-customer transaction would likely be completed via
portal and the DMV would be informed that the transfer occurred.
3:18:57 PM
REPRESENTATIVE CLAMAN understood that in order to borrow money
from True North to buy a car, the loan could be completed
electronically; however, the title transfer would require its
physical presence at the DMV for a signature. He asked if that
was correct.
MS. MACVAY answered, "Yes." She explained that the loan note
could be signed electronically, but the loan would not be
disbursed until the title application was received with the
signed title in hand.
REPRESENTATIVE CLAMAN understood that the next step in borrowing
involved placing a lien on the title, which would be released
after the loan was paid off entirely. He questioned how that
process would change if electronic signatures were allowed.
MS. MACVAY said currently, when a borrower paid off a car loan,
the lien on the title would be signed off and released. The
title would then be mailed back to the borrower. However, she
noted that people did not always open their mail from financial
institutions, which had resulted in titles being thrown away.
REPRESENTATIVE CLAMAN asked how electronic signature would
change that process.
MS. MACVAY indicated that there were many answers to that
question depending on the type of system the [DMV] would set up
and how [True North] would interface with it. She explained
that there were purely electronic lien and titling systems
through which the lien could be released. That type of
paperless system would be much faster and more efficient, she
said; consequently, she believed that the end game should an
entirely paperless method.
3:23:21 PM
REPRESENTATIVE CLAMAN considered a scenario in which the
borrower sold the car before the loan was paid off. He asked
how electronic signature would allow the old owner to get
his/her lien released and allow the new owner to receive the
title as expeditiously as possible.
MS. MACVAY believed electronic signature would be beneficial
because True North would be able to note that the lien had been
satisfied, which would allow the owner and the buyer to complete
the transaction.
3:25:07 PM
REPRESENTATIVE SCHRAGE expressed his appreciation for the
opportunity to present HB 163. He said he looked forward to
seeing the bill advance in the near future, as it would provide
flexibility to the DMV and help Alaskans better conduct their
businesses, as well as modernize state statute.
CHAIR KREISS-TOMKINS announced [that HB 163 was held over.]
HB 102-STATE INSUR. CATASTROPHE RESERVE ACCT.
3:25:58 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 102, "An Act relating to the state
insurance catastrophe reserve account; and providing for an
effective date."
3:26:59 PM
CHAIR KREISS-TOMKINS opened public testimony. After
ascertaining the no one wished to testify, he closed public
testimony and invited questions from the committee.
3:27:15 PM
REPRESENTATIVE EASTMAN asked whether the funds in the State
Insurance Catastrophe Reserve Account were available for
appropriation by the legislature.
3:27:37 PM
PALOMA HARBOUR, Fiscal Management Analyst, Office of Management
& Budget, Office of the Governor, answered yes. She said the
legislature could appropriate this funding for any purpose, as
there was no such thing as a dedicated fund.
REPRESENTATIVE EASTMAN assumed that the funds were swept into
the Constitutional Budget Reserve (CBR) at the end of the fiscal
year. He asked if that was correct.
MS. HARBOUR replied, "That is not correct." She stated that
just because the funding could be appropriated did not mean it
required further appropriation to spend. For that reason, it
was not subject to the sweep, she said.
REPRESENTATIVE EASTMAN questioned whether Legislative Legal
Services was of the same opinion as Ms. Harbour.
CHAIR KREISS-TOMKINS invited closing comments from committee
members on HB 102.
3:29:28 PM
REPRESENTATIVE TARR pointed out that if legislators could find
additional bills like HB 102 that saved the state millions of
dollars, their work would be easier.
REPRESENTATIVE VANCE agreed. She believed that the proposed
legislation exemplified the wise financial decisions that
Alaskans had been waiting for. She added that she was happy to
support this bill.
REPRESENTATIVE CLAMAN agreed that there were many positive
aspects of the bill and stated his support for it; however, he
indicated that it would not come without risk because "when
everyone self-insures, it only takes a couple of catastrophic
losses for somebody to come back and say, 'what were you all
thinking.'" He said he would be remiss not to recognize that
the decision came with some degree of risk, but it would be a
risk worth taking.
REPRESENTATIVE STORY thanked the bill sponsoring for providing
the 10-year history of [state property premiums and losses].
Additionally, she thanked Representative Claman for addressing
the potential risk.
REPRESENTATIVE EASTMAN appreciated the administration's effort
in bringing down costs, as reflected in the proposed
legislation. Nonetheless, he believed that per the Constitution
of the State of Alaska, the money would be swept from the CBR,
which would allow the legislature to "make proposals like this
bill in the form of a permanent fund that isn't subject to that
penalty." He said he would be inclined to create a dedicated
fund for this purpose because it would make sense financially
and legally; however, he said the legislature was "trying to
have [its] cake and eat it too." For that reason, he stated
that he would be hesitant to support the bill at this time.
3:33:26 PM
REPRESENTATIVE KAUFMAN, in response to Representative Eastman,
suggested amending the bill.
CHAIR KREISS-TOMKINS echoed the initial comments. He
characterized the bill as "terrific policy," and said he was
very glad to see the administration bring it forward. He
acknowledged the risk but believed the legislature would be
paralyzed if it allowed the sweep to dictate its every decision.
He pointed out that the sweep had almost always been reversed
without fail. Further, he opined that failing to reverse the
sweep did not serve a productive purpose.
3:35:28 PM
REPRESENTATIVE CLAMAN moved to report HB 102 out of committee
with individual recommendations and the accompanying fiscal
notes. Without objection, HB 102 was moved from the House State
Affairs Standing Committee.
HB 157-APOC; REPORT REFERENDA/RECALL CONTRIBUTOR
3:36:02 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 157, "An Act requiring the disclosure of
the identity of certain persons, groups, and nongroup entities
that expend money in support of or in opposition to an
application filed for a state referendum or recall election; and
providing for an effective date."
CHAIR KREISS-TOMKINS opened public testimony. After
ascertaining the no one wished to testify, he closed public
testimony.
3:36:46 PM
CRYSTAL KOENEMAN, Staff, Representative Sara Rasmussen, Alaska
State Legislature, on behalf of Representative Rasmussen, prime
sponsor of HB 157, stated that additional documents had been
disbursed to the committee in response to questions from the
previous bill hearing. She specifically referenced the flow
chart, which outlined the various reporting requirements for
candidates, initiatives, recalls, and referendums.
3:37:46 PM
CHAIR KREISS-TOMKINS welcomed questions from the committee.
3:38:29 PM
MS. KOENEMAN, in response to Representative Kaufman, provided an
overview of the flow chart on page 4 of the document titled,
"Additional Info - Response to STA" [included in the committee
packet]. She explained that for candidates, the expenditures
and contribution tracking began when they declared their
candidacy and paid the initial fee to the Division of Elections
(DOE). Similarly, for initiatives, the expenditures and
contribution tracking began when the initial application was
properly filed with the lieutenant governor through DOE. For
recalls, the expenditures and contributions began if and when a
special election was called, which was the final step in the
process. Lastly, for referendums, the expenditures and
contribution tracking began when it appeared on the ballot of
the first statewide primary, general, or special election held
more than 180 days after adjournment of the legislative session
at which the act was passed. Consequently, she pointed out that
if the funding gathered for a recall or referendum was expended
prior to certification, it would never be reported.
3:42:05 PM
REPRESENTATIVE CLAMAN, in reference to the last step of the
referendum process, sought to clarify what "180 days after
adjournment of the legislative session" meant specifically.
MS. KOENEMAN said she was unsure.
3:43:28 PM
HEATHER HEBDON, Executive Director, Alaska Public Offices
Commission, explained that the process of getting a recall or
referendum on the ballot was not overseen by APOC; therefore,
she could not offer further clarity.
MS. KOENEMAN surmised that it was at the end of the full
legislative session. Nonetheless, she offered to verify with
DOE.
3:44:30 PM
REPRESENTATIVE VANCE, in reference to the flow chart, sought to
confirm that the proposed legislation would move the reporting
requirements from the final step to the first step for recalls
and referendums.
MS. KOENEMAN confirmed. She said the bill would align the
reporting requirements for recalls and referendums with that of
candidates and initiatives; therefore, the reporting would
commence at the beginning.
3:44:59 PM
REPRESENTATIVE EASTMAN referred to the language on page 6, lines
15-16, which read, "(iii) a recall application under AS
15.45.480 or who file a recall application under AS 15.45.480;".
He opined that the language appeared duplicative and asked why
it was drafted in that way.
MS. KOENEMAN explained that the language was referencing any
group of two or more individuals who organized [for] the purpose
of filing a recall or those who had filed a recall application.
She noted that it was conforming language, as recommended by the
drafters.
REPRESENTATIVE EASTMAN questioned whether this language would
apply to "anyone who files a group to put forward a recall
application."
MS. KOENEMAN answered yes. She expounded that any groups, non-
group entities, individuals, persons, and etcetera that this
language applied to would be subject to the modified reporting
requirements.
3:47:40 PM
MS. KOENEMAN, in response to a question from Representative
Eastman, explained that current statute specified a threshold of
$500. She elaborated that the reporting requirements would
commence when the initiative, committee, person, group, or non-
group entity received contributions exceeding $500 or expended
more than $500. Additionally, she said there was a threshold of
$5,000 for candidates.
REPRESENTATIVE EASTMAN asked whether the bill sponsor had
considered bringing the $500 threshold up to $5,000.
MS. KOENEMAN said the bill sponsor was not interested in
modifying the existing structure. She indicated that the goal
was to align statutes so the requirements would be identifiable
across the board.
CHAIR KREISS-TOMKINS informed the committee that an amendment
had come in after the deadline due to an administrative error.
Given that the sponsor of the amendment was on the next
committee of referral, he said his preference was not to
consider the amendment. Nonetheless, he invited Representative
Vance to highlight any themes or policy issues that members
should be aware of, given that many of them would also be in the
next committee of referral.
3:50:48 PM
REPRESENTATIVE VANCE explained that she had spoken with the bill
sponsor about adding municipalities to the statute, so that
there would be consistent transparency statewide. She conveyed
that municipalities could choose to follow statutory reporting
requirements or not; therefore, this would not impose the
requirements on a municipality that had not already elected to
follow the statutory guidelines. She believed the amendment
would merit a conversation.
CHAIR KREISS-TOMKINS said he looked forward to potentially
having that conversation in the near future.
3:52:21 PM
REPRESENTATIVE EASTMAN opined that the bill would "[lump] a lot
of things together into one basket." He shared his
understanding that recalls were of a different nature because
there had not been a successful recall from office. He believed
that the reporting requirements for recalling a governor or
lieutenant governor would not make sense for the recall of a
local official, for example, because there were less resources
available for those efforts. He indicated that he was hesitant
to move forward with the proposed legislation. He concluded
that citizens should be able to organize the recall of a local
official without involving attorneys with deep pockets.
3:54:56 PM
REPRESENTATIVE KAUFMAN inquired about the relative dollar
amounts and questioned putting them in statute due to inflation.
He believed that political issues related to money were
associated with larger amounts than $500 or $5,000. Therefore,
he suggested reconciling the financial thresholds to allow
grassroots efforts to organize without being "bogged down" with
higher level accounting.
CHAIR KREISS-TOMKINS said he appreciated the legislation;
further, he acknowledged the comments from Representatives
Eastman and Kaufman, adding that there were good conversations
to be had about the appropriate level of reporting and
regulation for small, grassroot political efforts.
3:56:30 PM
REPRESENTATIVE CLAMAN moved to report HB 157 out of committee
with individual recommendations and the accompanying fiscal
notes. Without objection, HB 157 was moved out of the House
State Affairs Standing Committee.
HB 118-EXPANDING PRISONER ACCESS TO COMPUTERS
3:56:58 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 118, "An Act relating to state
identifications and driver's licenses for persons in the custody
of the Department of Corrections; relating to the duties of the
commissioner of corrections; relating to living conditions for
prisoners; and providing for an effective date."
CHAIR KREISS-TOMKINS, prime sponsor of HB 118, reminded the
committee that the proposed legislation had been amended in the
previous hearing [4/1/21]; however, after conversations with
committee members and additional collaboration between his and
Representative Vance's offices, he would be reopening the
amendment process.
3:57:57 PM
REPRESENTATIVE VANCE moved to adopt Amendment 3, labeled 32-
LS0024\B.6, Radford, 4/19/21, which read:
Page 6, line 26, following "care":
Insert "but may not be used to directly access
the Internet by computer terminal or other automated
means not requiring the assistance of or intervention
by another person"
REPRESENTATIVE CLAMAN objected.
3:58:01 PM
REPRESENTATIVE VANCE thanked the chair for accommodating her
questions and concerns. She conveyed that she had spoken with
the Department of Corrections (DOC) about its intention for
providing access to computers. She explained that the proposed
amendment specified that inmates may not directly access the
Internet, indicating that the computers would only be utilized
for rehabilitation and the purposes specifically outlined in the
bill.
CHAIR KREISS-TOMKINS attested to Representative Vance's work
with the department on Amendment 3.
3:59:27 PM
The committee took a brief at-ease.
3:59:40 PM
CHAIR KREISS-TOMKINS noted that the department would be
available shortly. He said he could relay both written and
verbal correspondence that confirmed that the department was
aware of Amendment 3 and had no objection to it.
4:00:17 PM
REPRESENTATIVE CLAMAN directed attention to Section 4,
subparagraph (I), on page 6 of HB 118, which addressed
prisoners' access to computers and specified the rules of
compliance. He asked why that subsection needed further
clarification.
REPRESENTATIVE VANCE indicated that the goal of Amendment 3 was
to establish consistency across every correctional agency rather
than each facility abiding by different criteria.
REPRESENTATIVE CLAMAN expressed concern that different
facilities would have different needs and that the proposed
language would restrict their ability to make reasonable
decisions regarding the appropriate access for each facility.
4:01:53 PM
REPRESENTATIVE VANCE relayed that the language in Amendment 3
was written by [DOC] to capture their intent for providing
computer access, such as employment, and education. She
understood that the proposed language would not prohibit "the
activities that they feel that they need moving forward."
CHAIR KREISS-TOMKINS inquired about the agency's position on
Amendment 3.
4:03:24 PM
LAURA BROOKS, Division Operations Manager, Division of Health
and Rehab Services, DOC, explained that concerns had been raised
about how inmates might access the internet; therefore, the
language in Amendment 3 was intending to clarify that there may
be occasions in which an offender could access the internet, but
only with staff supervision. She considered the example of the
electronic Medicaid application process, adding that an inmate
would only be eligible to do that under the direct supervision
of a staff member. Otherwise, the computers/tablets would be
channeled through a secure platform that would not allow direct
access to the Internet.
4:04:57 PM
REPRESENTATIVE CLAMAN understood that the existing language in
subparagraph (I) provided DOC with the authority to regulate the
allowable access. He asked whether Ms. Brooks agreed.
MS. BROOKS said, "That's correct."
REPRESENTATIVE CLAMAN concluded that in the past, the goal was
to limit computer access in prisons; however, as time went on,
the lack of computer access in prisons hurt the inmates' ability
to engage in reform programs. He maintained his concern that
the language in the proposed amendment regarding staff
supervision may not be necessary in the future due to advances
in technology. He said he could understand some of the interest
in this precaution today but given the slowness with which the
legislature made adaptations to realities on the ground, he
believed the language in Amendment 3 would be overly restrictive
going forward. He opined that presently, staff supervision was
an appropriate inclusion under subparagraph (I); however, by
requiring it in statute, DOC would not be able to easily
dispense with it.
MS. BROOKS acknowledged his concern about tying the department's
hands. However, she said she could not foresee a time when DOC
would provide inmates with access to the Internet due to the
potential of them accessing victims. She believed that given
the anticipated programming, the language in Amendment 3 was
appropriate because it would allow the department to provide
supervision when an inmate needed access to something that
required internet access.
REPRESENTATIVE CLAMAN questioned what would happen if an
application for benefits required internet access. He surmised
that the language in Amendment 3 would require that the inmate
be supervised while filling out the application.
MS. BROOKS confirmed that it would require that level of
supervision.
4:08:50 PM
REPRESENTATIVE EASTMAN asked why DOC would object to an inmate
having access to the internet aside from the concern about
contacting victims.
MS. BROOKS said there were many security concerns that she did
not want to mention publicly. She conveyed that primarily,
allowing internet access would be a serious breach of security
due to the massive amount of information available online.
REPRESENTATIVE EASTMAN asked whether the department was
concerned that in five years, inmates would have increased tools
and techniques for hacking and could misuse the internet access
should they ever achieve it.
MS. BROOKS replied, "That's probably always a concern." She
reiterated that the department wanted to ensure that if the
tablets were used for accessing the Internet, the access would
be well supervised.
REPRESENTATIVE EASTMAN inquired about "the intervention," which
was referenced in Amendment 3.
MS. BROOKS stated that the intervention would be a "side-by-side
review," meaning that a medical social worker or institutional
probation officer would sit with the inmate while he/she
completed the paperwork.
4:11:02 PM
REPRESENTATIVE KAUFMAN asked whether the language "intervention
by another person" was too broad.
MS. BROOKS acknowledged that possibility. She reiterated that
the department's goal was to make the proposed legislation safe;
therefore, if the committee felt that the wording needed to be
adjusted, DOC would not object. She explained that the
department wanted to ensure that the use [of tablets] would be
available for the intended purpose of rehabilitation and that
they would be protected and confined to only that purpose.
4:12:14 PM
CHAIR KREISS-TOMKINS expressed his surprise that there seemed to
be a sense that DOC did not recognize the obvious: that no one
wanted inmates contacting victims. He assured the committee
that if a victim were to be contacted, the commissioner would be
replaced, as it would be a career-ending public relations (PR)
story. He emphasized that Ms. Brooks and Commissioner Dahlstrom
knew that, and the committee should know that too. He pointed
out that the verbiage could be endlessly litigated, but the
commonsense understanding should be the accepted assumption that
there would be no circumstance in which DOC would allow
prisoners to freely communicate with victims or anyone else via
the Internet.
REPRESENTATIVE KAUFMAN said he had no distrust in his heart. He
explained that he had wanted to know whether additional wording
would clarify the amendment.
4:14:08 PM
REPRESENTATIVE TARR referenced a letter from the American Civil
Liberties Union (ACLU) of Alaska [included in the committee
packet], which read [original punctuation provided]:
Providing meaningful access to technology is arguably
more important than establishing statutory permission
to do so. There is, for instance, nothing in HB 118
to require DOC to meet certain standards for computer
access, and nothing to permit DOC from arbitrarily
restricting access to computers.
REPRESENTATIVE TARR highlighted the importance of reentry
services for successful reintegration in the community; further,
she said [reentry services] were deeply meaningful for the
continuation of addiction treatment, for example. She shared
her understanding that the proposed legislation would provide a
critical service. She believed that on one end, access should
be restricted to protect victims, while on the other end, there
should be meaningful access to allow for the provision of
services and the best opportunity for success upon release into
the community.
CHAIR KREISS-TOMKINS concurred.
4:15:58 PM
REPRESENTATIVE VANCE thanked DOC for collaborating on the
language in Amendment 3. She explained that her goal was to
clarify the statutory intent for legal matters and to "maintain
the public trust." She believed that the legislature's primary
obligation was to ensure the public's safety and that providing
rehabilitation came second to that; further, she said that the
legislature lived in the middle ground of providing both. She
stated that she wanted to make it clear to the public that the
intent was not to allow unbridled access to the internet and
that computer access would be specific to reentry needs.
4:17:25 PM
REPRESENTATIVE CLAMAN opposed the language in Amendment 3. He
believed that the intent was well-taken but that the language
was confusing. He said he had great confidence that DOC would
only approve what was appropriate and that the existing language
in HB 118 provided all the necessary direction. He added that
he completely agreed with the chair's comments and believed that
it would be a mistake to include restrictions that would hinder
the already challenging efforts of rehabilitation. He
reiterated that he did not support Amendment 3 because DOC had
all the necessary authority to restrict access; further, that
the department already did that exceptionally well. He further
noted that under the Constitution of the State of Alaska, one
purpose for criminal justice administration was not higher than
other. He added that rehabilitation was one of several goals,
all of which were to be balanced equally or appropriately
depending on the circumstances of the person, victim, or crime.
CHAIR KREISS-TOMKINS considered the scenario posed by
Representative Claman in which the platform would only allow
access to one URL, such as the Medicaid enrollment website, and
there would be zero percent chance of contacting a victim or
performing other nefarious activity. He asked Ms. Brooks
whether an inmate would be directly supervised in that scenario
if accessing that one URL was in was in the best interest of
his/her rehabilitation or reform.
MS. BROOKS believed that it was the department's first duty to
protect the public and that rehabilitation and reentry fell
below that. She said if the committee wanted to make changes to
the wording it would be a policy call. She reemphasized that
DOC would protect the public to the best of its ability while
providing this computer access.
CHAIR KREISS-TOMKINS pointed out that in the aforementioned
scenario there would be a zero percent chance of jeopardizing
public safety because of the technical platform being utilized.
He asked whether direct supervision would be ideal if the
inmates were doing something for their reform or rehabilitation
and the risk was mitigated to zero.
MS. BROOKS said having staff supervise that type of access would
be the safest route. She said she did not know if there could
ever be a zero percent chance [of risk]; therefore, staff
supervision would be required to mitigate as much risk as
possible.
4:22:22 PM
REPRESENTATIVE EASTMAN, recalling his previous experience in law
enforcement, said he didn't know that there would ever be a
warden or prison supervisor who would be able to make an
affirmation of zero percent risk. He said that level of
certainty was not realistic with today's technology.
4:23:54 PM
CHAIR KREISS-TOMKIN believed that ultimately, it came down to
how much [the legislature] trusted DOC to do its job well. He
added that he trusted the department's personnel to evaluate
those risks. He announced that HB 118 was held over.
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
4:24:30 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."
4:25:25 PM
REPRESENTATIVE Tarr, prime sponsor of HB 5, noted that
additional support documents had been distributed to the
committee [hard copy included in the committee packet]. The
material addressed the rape by fraud provisions and included the
2019 Felony Sex Offense Report. She concluded by quoting an
attorney who said, "Rape is like a murder where the victim
doesn't die." She believed that statement captured the severity
of the crimes being considered in this legislation.
4:26:59 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 1, labeled 32-
LS0065\G.1, Radford, 4/20/21, which read:
Page 3, following line 2:
Insert new bill sections to read:
"* Sec. 3. AS 11.41.432(b) is amended to read:
(b) Except as provided in (d) - (f) [(d) OR (e)]
of this section, in a prosecution under AS 11.41.410 -
11.41.427, it is not a defense that the victim was, at
the time of the alleged offense, the legal spouse of
the defendant.
* Sec. 4. AS 11.41.432 is amended by adding a new
subsection to read:
(f) It is a defense to a crime charged under
AS 11.41.410(a)(5) or 11.41.420(a)(5) that the
offender is married to the person and neither party
has filed with the court for separation, divorce, or
dissolution of the marriage."
Renumber the following bill sections accordingly.
Page 6, line 19:
Following "Act,":
Insert "AS 11.41.432(b), as amended by sec. 3 of
this Act, AS 11.41.432(f), enacted by sec. 4 of this
Act,"
Delete "sec. 3"
Insert "sec. 5"
Page 6, line 20:
Delete "sec. 4"
Insert "sec. 6"
Page 6, lines 20 - 21:
Delete "sec. 5"
Insert "sec. 7"
Page 6, line 21:
Delete "sec. 6"
Insert "sec. 8"
Page 6, line 22:
Delete "sec. 7"
Insert "sec. 9"
Delete "sec. 8"
Insert "sec. 10"
Page 6, line 23:
Delete "sec. 9"
Insert "sec. 11"
Page 6, line 24:
Delete "sec. 11"
Insert "sec. 13"
Page 6, line 25:
Delete "secs. 1 - 9 and 11"
Insert "secs. 1 - 11 and 13"
Page 6, line 26:
Delete "Section 10"
Insert "Section 12"
REPRESENTATIVE CLAMAN objected.
REPRESENTATIVE EASTMAN, in explanation of Amendment 1, opined
that two individuals who were married and engaging in sexual
relations should not be prosecuted "under these kinds of
situations." He believed that spouses should be exempt from the
criminal sanctions [in the rape by fraud provisions].
REPRESENTATIVE TARR stated that she did not support Amendment 1
because it would be applied to the rape by fraud section. She
explained that the rape by fraud provisions were intended to
apply to a circumstance in which the offender misrepresented
his/her physical identity and recklessly disregarded that the
victim would not have consented to engaging in a sexual
relationship had the offender's real identity been known.
Moreover, she said she could not think of a circumstance in
which [rape by fraud] would apply to a married couple.
CHAIR KREISS-TOMKINS asked Representative Eastman to provide a
scenario that he was attempting to solve or prevent with the
proposed amendment.
REPRESENTATIVE EASTMAN remarked:
There have been situations where, you know, a spouse
is thinking that their partner is having an affair,
and as part of catching their partner in the act they
switch places and pretend to be the person that ...
they think their spouse is having an affair with.
REPRESENTATIVE EASTMAN claimed that these kinds of situations
had happened and would continue to happen. He continued by
recounting the story line from a Shakespeare play, titled "All's
Well That Ends Well." He believed it was not possible to
conceive of all the situations in which [the rape by fraud
provisions] could be used against an innocent spouse. Further,
he believed that charging a spouse with rape for having slept
with [his/her spouse] would be wrong.
CHAIR KREISS-TOMKINS asked Mr. Stinson whether he had
encountered a scenario that Amendment 1 would apply to during
his time in criminal law.
4:33:01 PM
JAMES STINSON, Director, Office of Public Advocacy, Department
of Administration, said he had not encountered that scenario.
He understood that the rape by fraud provisions were trying to
capture a person who had impersonated a different actual person
that was in a relationship with someone. Ultimately, he
believed that the proposed amendment would come down to a policy
call on whether it should be considered rape in the event of a
spousal relationship wherein one of the individuals thought that
he/she was having an affair with somebody but was actually
sleeping with his/her spouse.
4:34:49 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Department of Law, said in his 22 years of experience
he had never encountered a case that was similar to what
Representative Eastman had laid out in his hypothetical. He
shared his understanding that Representative Eastman was
proposing that a person had engaged in sexual relations with
his/her spouse while believing that the spouse was a third
person; further, that person would not have actually consented
to having sex with the actual spouse. He said despite what
Shakespeare wrote, it did not seem like a realistic case that
would be referred for prosecution. Nonetheless, if
hypotheticals could be strained to the point that it would be
[referred to prosecution], he asked why the legislature would be
interested in passing a law that protected an individual who
could only have sexual relations with another person by
trickery. He said he was having difficulty understanding that
concept, and that it would be up to the committee to make the
policy call.
4:36:38 PM
REPRESENTATIVE CLAMAN echoed Mr. Skidmore's observations. He
said he was having a hard time conceiving the circumstance
described by Representative Eastman; further, he opined that the
application to marriage defense in that scenario was used
inappropriately. He explained that in the last few years, the
legislature had spent a lot of time looking in detail at AS
11.41.432(b), which was the provision relating to the marriage
defense, as well as other subsections on defenses in AS
11.41.432. He believed that Amendment 1 was proposed in
reference to a narrow and "somewhat bizarre" set of
circumstances that were hard to imagine. Further, he pointed
out that [the legislature] had worked hard to try to eliminate
the marriage defense except in limited circumstances, such as
the Alzheimer's scenario. He concluded by reiterating his
opposition to the proposed amendment.
4:38:08 PM
REPRESENTATIVE VANCE inquired about the flexibility in statute
when considering Alzheimer's cases pertaining to consent.
MR. SKIDMORE relayed that AS 11.41.432 described that "the
marriage defense is an affirmative defense when the offender was
married to the person, neither party is filed for divorce or
separation or dissolution. The the victim in that case is
capable of consenting and does, in fact, consent while capable
of understanding the nature of consequences." He recalled that
the concerns that had been raised during the legislative
testimony were related to the difficult situations in which a
person was capable of consenting on Monday but on Tuesday,
because of the nature of Alzheimer's disease, was not capable of
consenting. He opined that from that standpoint, there was an
affirmative defense; further, that prosecutors had discretion in
any case that was presented to them to determine whether it
appropriately met the elements and could be proven beyond a
reasonable doubt. He believed that the statute contained all
the necessary flexibility as written.
REPRESENTATIVE VANCE questioned how the proposed amendment would
affect that discretion in those types of scenarios.
MR. SKIDMORE clarified that Amendment 1 did not pertain to
Alzheimer's. Instead, he explained that the amendment was
trying to look at a scenario in which one spouse was trying to
commit a fraud on the other spouse by impersonating someone
else. He said he struggled with the concept that a spouse
wouldn't recognize his/her own spouse. He remarked:
But assuming for arguments sake that ... I can change
my appearance in some capacity that I can actually
fool the person with whom I have the most intimate
relationship on the planet with, my spouse - I can
fool that person into thinking that I'm another
person. In that scenario, this amendment would say
... the spouse that is the victim didn't want to
engage in a sexual act with their actual spouse but
was only willing to engage in that sexual act with a
third person outside of the marriage and in that
circumstance now, what this amendment would say is
'well, if you really have a relationship that's
dissolved that significantly and they are incapable of
recognizing who their own spouse is, and they engage
in a sexual act with them and they only did it because
of fraud, this amendment would now say that's going to
be protected.
MR. SKIDMORE concluded that the policy question for the
committee was whether to protect the conduct of the spouse that
committed that fraud.
4:43:35 PM
REPRESENTATIVE CLAMAN asked if Amendment 1 were to pass, what
the impact would be of making "this" a defense rather than an
affirmative defense.
MR. SKIDMORE believed that the difference was that an
affirmative defense required the defendant to put forth some
evidence that established that scenario; alternatively, a
defense didn't require the defendant to put forward anything
affirmatively but required the prosecution to disprove it.
4:45:03 PM
REPRESENTATIVE EASTMAN inquired about the statute of limitations
that would apply to the rape by fraud provisions should the bill
pass into law.
MR. SKIDMORE stated that sexual assault did not have a statute
of limitations.
REPRESENTATIVE EASTMAN pointed out that Mr. Skidmore had
mentioned that [the rape by fraud provisions] would only apply
when a spouse would not have consented to sexual relations [had
he/she known the true identity of the offender]; however, as he
understood it, that concept was not clearly stated in the bill.
Additionally, he recalled testimony from a previous hearing that
had indicated that a person's prior behavior did not equate to
consent. He asked for further clarification.
MR. SKIDMORE confirmed that previous conduct did not necessarily
equate to consent for a particular incident. Nonetheless, he
explained that as a prosecutor, his obligation would be to prove
that the victim did not consent. He anticipated that if
Amendment 1 were adopted, in any case in which he would try to
bring a charge under the [rape by fraud provision], the defense
attorney would argue "this was their spouse, you're telling me
they weren't considering [having] sex with their spouse?" He
believed that was the consent issue that the prosecution would
be faced with under this subsection. He continued to explain
that identity was the factor in question under this provision
and whether the victim truly did not perceive the actual
identity of the offender. He added that dressing up as someone
else would not be enough. He remarked:
I could try and make myself look like Brad Pitt ...
and so, if I attempted to do that, I don't think my
wife would ever be fooled into thinking that I was
Brad Pitt. And so, the question is if I was
pretending to be him, and I tried to engage in some
sort of sexual act with my wife ... did she consent to
that sex with me or was she truly fooled...
REPRESENTATIVE EASTMAN maintained his concern about
criminalizing conduct that was taking place within the
[confines] of marriage, which he believed shouldn't be criminal.
4:53:33 PM
REPRESENTATIVE CLAMAN maintained objection
4:54:01 PM
A roll call vote was taken. Representative Eastman voted in
favor of the adoption of Amendment 1. Representatives Tarr,
Story, Claman, Vance, Kaufman, and Kreiss-Tomkins voted against
it. Therefore, Amendment 1 failed by a vote of 1-6.
4:54:56 PM
REPRESENTATIVE VANCE moved to adopt Amendment 2, labeled 32-
LS0065\G.4, Radford, 4/26/21, which read:
Page 5, line 6:
Delete "person"
Insert "victim"
Delete "defendant"
Insert "offender"
Page 5, line 12:
Delete "defendant"
Insert "offender"
Page 5, line 14:
Delete "defendant's"
Insert "offender's"
Page 5, line 15:
Delete "defendant"
Insert "offender"
CHAIR KREISS-TOMKINS objected for the purpose of discussion.
4:55:00 PM
REPRESENTATIVE VANCE explained that Amendment 2 would provide
consistency in the bill language by replacing "person" with
"victim" and replacing "defendant" with "offender" on page 5.
CHAIR KREISS-TOMKINS questioned whether the inserted language
differed from other criminal law statutes. Additionally, he
asked why the bill was not originally drafted with the proposed
language in Amendment 2.
REPRESENTATIVE VANCE said she did not know the answer.
CHAIR KREISS-TOMKINS asked Mr. Stinson whether the language
proposed in Amendment 2 was consistent with other criminal law
statutes.
4:57:32 PM
MR. STINSON said he was unsure whether there would be a legal
significance. He explained that the person being charged was
designated as the "defendant" whereas the victim witness was
referred to as the "victim" or "alleged victim" during course of
the proceedings.
REPRESENTATIVE CLAMAN, after a quick perusal through AS
11.41.410, AS 11.41.420, and AS 11.41.425, noted that the
statutory language referred the "offender" rather than the
"defendant." Therefore, he believed that changing "defendant"
to "offender," as proposed in Amendment 2, would be more
consistent with the language in AS 11.41.410. However, he said
he was fairly certain that that the use of the word "victim" was
unusual because it would imply a conviction. He shared his
belief that deleting "person" and inserting "victim," as
proposed in Amendment 2, would draw the conclusion that a crime
had been committed.
REPRESENTATIVE EASTMAN pointed out that referring to a party as
a "petitioner" did not necessarily mean that their petition was
valid. Nonetheless, he agreed with Representative Claman that
to decide that a crime had been committed ahead of time would
prejudice the entire process.
5:01:27 PM
RENEE MCFARLAND, Deputy Public Defender, Alaska Public Defender
Agency, noted that sexual assault and sexual abuse of a minor
statutes used the word "offender" in reference to the defendant.
Further, sexual abuse of a minor statutes used the word "victim"
in provisions pertaining to individuals being charged with
conduct involving their children or people in positions of
authority. She also noted under AS 11.41.470, "victim" was
defined as "the person alleged to have been subjected to sexual
assault in any degree or sexual abuse of a minor in any degree."
Additionally, the current definition of "without consent" used
the word "defendant." Ultimately, she concluded that the
statutory language used "offender" in reference to the offense
at issue, "defendant" when addressing consent, and "victim" when
discussing certain aspects of sexual abuse of a minor.
5:03:00 PM
REPRESENTATIVE TARR pointed out that in "common language," there
was an ongoing effort to transition the verbiage from "victim"
to "survivor." She acknowledged that the effort was outside of
the law; nonetheless, it was part of the cultural change around
these issues. Regarding the use of "offender" instead of
"defendant," she said she was comfortable with the change if it
would maintain consistency.
CHAIR KREISS-TOMKINS asked Mr. Skidmore whether the Department
of Law (DOL) had a position on Amendment 2.
MR. SKIDMORE reported that the word "victim" was used in AS
11.41.410(a)(4)(B) and AS 11.41.420, as well as subsequently
defined in AS 11.41.470(7). He said DOL had no objections to
the use of the word "victim." He submitted that the statutes
were somewhat inconsistent in their use of "person" versus
"victim." He said he understood Amendment 2 to be an attempt at
clarifying the definition of consent in terms of who was being
discussed. He believed it would be a policy call for the
committee.
5:06:14 PM
REPRESENTATIVE KAUFMAN surmised that the ideal statutory
language would be the most neutral wording that correctly
identified the "players." He asked Mr. Skidmore whether there
was a benefit to using the terms "person" or "defendant," which
were more neutral, as opposed to "victim" and "offender."
MR. SKIDMORE agreed with the concept of using the most neutral
terms in statute in addition to providing clarity. He continued
to defer to the committee on whether Amendment 2 would provide
clarity.
CHAIR KREISS-TOMKINS maintained his objection. He said he was
in favor of using neutral legal language and that it was up to
the defense and the prosecution to make their case, as opposed
the statutory language. Further, he pointed out that there had
been no confusion around the existing language.
5:09:06 PM
REPRESENTATIVE VANCE stated that the purpose of Amendment 2 was
to clarify who was being described in the definition of consent.
She pointed out that the terms "victim" and "offender" were used
in Section 4 of SSHB 5; therefore, she believed the proposed
amendment would create consistency. Nonetheless, she deferred
to the will of the committee.
REPRESENTATIVE STORY inquired about the bill sponsor's position
on Amendment 2.
REPRESENTATIVE TARR said she was opposed at this time. She
expressed interest in continuing to work with Representative
Vance on the language as the bill moved forward.
5:11:09 PM
REPRESENTATIVE VANCE withdrew Amendment 2. She announced that
Amendment 3 would not be offered at this time.
5:12:37 PM
REPRESENTATIVE TARR moved to adopt Amendment 4, labeled 32-
LS0065\G.6 Radford, 4/26/21, which read:
Page 2, line 9:
Delete "who is"
Insert "whom the offender has"
Page 2, line 11, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual penetration if
the person knew the offender's real identity"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 2. AS 11.41.410(b) is amended to read:
(b) Sexual assault in the first degree,
(1) under (a)(1) - (4) of this section, is
an unclassified felony and is punishable as provided
in AS 12.55;
(2) under (a)(5) of this section, is a
class A felony and is punishable as provided in AS
12.55."
Renumber the following bill sections accordingly.
Page 2, line 31:
Delete "who is"
Insert "whom the offender has"
Page 3, line 2, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual contact if the
person knew the offender's real identity"
Page 6, line 19, following "AS 11.41.420(a), ":
Insert "AS 11.41.420(b), as amended by sec. 2 of
this Act,"
Delete "sec. 2"
Insert "sec. 3"
Delete "sec. 3"
Insert "sec. 4"
Page 6, line 20:
Delete "sec. 4"
Insert "sec. 5"
Page 6, lines 20 - 21:
Delete "sec. 5"
Insert "sec. 6"
Page 6, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 6, line 22:
Delete "sec. 7"
Insert "sec. 8"
Delete "sec. 8"
Insert "sec. 9"
Page 6, line 23:
Delete "sec. 9"
Insert "sec. 10"
Page 6, line 24:
Delete "sec. 11"
Insert "sec. 12"
Page 6, line 25:
Delete "secs. 1 - 9 and 11"
Insert "secs. 1 - 10 and 12"
Page 6, line 26:
Delete "Section 10"
Insert "Section 11"
REPRESENTATIVE EASTMAN objected for the purpose of discussion.
5:12:44 PM
REPRESENTATIVE TARR stated that Amendment 4 was designed to
"tighten" up the language in the rape by fraud provisions.
Additionally, she said it would reclassify the crime. She
relayed that lines 5-9 of Amendment 4 were intended to clarify
that rape by fraud would apply to situations in which people
misrepresented their physical identity to gain consent for
sexual penetration or sexual contact, as opposed to
circumstances wherein someone was dishonest about his/her
education status or income, for example. She said the second
part of the amendment addressed the sentencing provisions. She
noted that sexual assault in the first degree was an
unclassified felony with a 15-20-year prison sentence for the
first offense. Amendment 4, she explained, would make rape by
fraud a class A felony, whereas sexual contact by fraud would be
a class B felony. She reasoned that the crime of rape by fraud
involved some premeditation, so situating it a class A felony
would differentiate it between sexual assault involving use of
force and other circumstances.
5:20:34 PM
REPRESENTATIVE EASTMAN asked, "should the ... meaning of the
amendment basically be 'with reckless disregard for the fact
that'?"
REPRESENTATIVE TARR stated that the offender would act with
reckless disregard that the person would not have consented had
the offender not concealed his/her physical identity.
REPRESENTATIVE EASTMAN questioned whether it was "reckless
disregard that it might be possible."
REPRESENTATIVE TARR believed that was correct.
REPRESENTATIVE EASTMAN asked whether "non-consent" would become
an element of the crime.
REPRESENTATIVE TARR understood that consent would be in question
in addition to whether the person acted with reckless disregard
to the sexual assault that took place.
REPRESENTATIVE EASTMAN asked, "to what extent does that the
person would not have consented does that need to be established
as part of the crime."
5:24:06 PM
MR. SKIDMORE said from DOL's perspective, the lack of consent
would absolutely be an element of the crime. He pointed out
that sexual conduct between two adults was not in and of itself
illegal - only the lack of consent made it illegal. He
explained that the lack of consent in this case was determined
by the fact that a fraud had occurred, and the fraud meant that
there wouldn't have been consent had the person known the other
individual's true identity.
REPRESENTATIVE EASTMAN expressed his confusion. He asked
whether rape by fraud was a situation in which the act of fraud
had deprived the victim of being able to consent or "if they had
wanted to consent if they knew the offender's real identity,
does that negate the crime?"
MR. SKIDMORE sought to verify that Representative Eastman was
asking whether it was a crime if [the victim] didn't consent
because of the fraud and would it not have been a crime if [the
victim] knew the person's real identity.
REPRESENTATIVE EASTMAN answered yes. He asked if the victim had
known the real identity and would have consented under those
circumstances, would the crime of rape by fraud have not
occurred.
MR. SKIDMORE remarked:
Yes, I think if they actually know the person's real
identity, or if they had known the person's real
identity and they would have consented had they known
the real person's identity, then I don't think you
have a crime of sexual assault because they were still
consenting to the sexual conduct. What the crime of
sexual assault under this particular subsection is
trying to get at is the circumstance in which a person
did not want to consent to that conduct with that
person, but if they were consenting under some other
circumstance, that's kind of what we talked about for
the earlier amendment. How in the world would that
ever get reported to law enforcement? If they're
consenting to it, then what is it that law
enforcement's investigating?
CHAIR KREISS-TOMKINS observed that there were "dimensions upon
dimensions" of hypotheticals with this particular section of
statute. For that reason, he said he found it discomforting in
terms of [the legislature's] ability to anticipate all scenarios
and consequences, intended or otherwise. Nonetheless, he said
he appreciated that Amendment 4 was trying to narrow and refine
[the language].
5:28:46 PM
REPRESENTATIVE KAUFMAN inquired about the term "physical
identity," as opposed to "identity." He questioned whether
"physical" was the appropriate wording.
REPRESENTATIVE TARR reported that she had discussed that wording
with Legislative Legal Services in an attempt to carefully
select the language. She explained that the drafter believed
that adding "physical" would help clarify the intent. She
addressed the built-in protections in the criminal justice
system, explaining that the police would have to investigate and
feel that they found sufficient evidence to prove beyond a
reasonable doubt that a crime had occurred; further, it would
have to get "screened in" by the prosecutors. Consequently, she
stated that many of the "what if" scenarios would never come to
fruition because of the built-in protections along the way.
REPRESENTATIVE KAUFMAN asked Mr. Skidmore to comment on the use
of "physical" versus "actual" or some other adjective.
MR. SKIDMORE acknowledged that in reading Amendment 4, he had
the same concern about how to differentiate "physical identity"
from "characteristics, traits, or accomplishments," as some of
those could be physical. He suggested that "actual" or "true"
could be an appropriate replacement and provide the type of
clarity that the committee was looking for.
5:34:09 PM
REPRESENTATIVE VANCE believed that the language in Amendment 4
was getting closer to capturing the intent. She asked for the
bill sponsor's perspective on replacing "physical" with
"actual." Additionally, she asked Mr. Skidmore whether "actual
identity" would provide more flexibility for the prosecution.
MR. SKIDMORE was unsure whether it would broaden opportunity.
He did, however, believe that it would provide clarity as to the
committee and the sponsor's intent.
CHAIR KREISS-TOMKINS asked for Mr. Stinson's perspective on the
relative merits of "actual" versus "physical" and the clarity
afforded by one versus the other.
MR. STINSON said he could understand the tension with either
word. He shared his understanding that the legislative intent
was to prevent a situation where a person was impersonating
someone's girlfriend, boyfriend, spouse, significant other, and
etcetera. He believed that Amendment 4 was closer to capturing
that intent; however, he pointed out that it could still allow
for a situation in which an individual impersonated a celebrity
to gain consent to engage in sexual relations with another
person. Nonetheless, he noted that there would still be obvious
protections built in to whether that would get reported,
charged, and so forth.
5:39:59 PM
REPRESENTATIVE CLAMAN suggested allowing more time for
Representative Vance and Representative Tarr to discuss and come
to an agreement on the issue before moving forward with the
amendment.
5:40:21 PM
CHAIR KREISS-TOMKINS announced that HB 5 was held over.
5:41:07 PM
CHAIR KREISS-TOMKINS provided closing remarks and reviewed the
upcoming schedule.
5:41:40 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 5:41
p.m.