Legislature(2007 - 2008)BELTZ 211
04/02/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB112 | |
| SB97 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 112 | TELECONFERENCED | |
| + | SB 97 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 2, 2007
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Charlie Huggins, Vice Chair
Senator Bill Wielechowski
Senator Lesil McGuire
Senator Gene Therriault
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 112
"An Act relating to the statute of limitations for certain
sexual offenses and permitting causes of action for certain
sexual offenses that would otherwise be barred by the statute of
limitations to be brought during a certain one-year period."
MOVED SB 112 OUT OF COMMITTEE
SENATE BILL NO. 97
"An Act relating to identification seals for certain articles
created or crafted in the state by Alaska Native persons;
relating to the Alaska State Council on the Arts; and making
certain identification seal violations unfair trade practices."
MOVED CSSB 97(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 112
SHORT TITLE: STATUTE OF LIMITATION FOR SEXUAL OFFENSES
SPONSOR(s): SENATOR(s) FRENCH
03/12/07 (S) READ THE FIRST TIME - REFERRALS
03/12/07 (S) JUD
03/26/07 (S) JUD AT 1:30 PM BELTZ 211
03/26/07 (S) Heard & Held
03/26/07 (S) MINUTE(JUD)
04/02/07 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 97
SHORT TITLE: ALASKA NATIVE ART IDENTIFICATION SEALS
SPONSOR(s): SENATOR(s) STEVENS
02/26/07 (S) READ THE FIRST TIME - REFERRALS
02/26/07 (S) L&C, FIN
03/08/07 (S) L&C AT 1:30 PM BELTZ 211
03/08/07 (S) Heard & Held
03/08/07 (S) MINUTE(L&C)
03/13/07 (S) L&C AT 1:30 PM BELTZ 211
03/13/07 (S) Moved SB 97 Out of Committee
03/13/07 (S) MINUTE(L&C)
03/14/07 (S) L&C RPT 4DP
03/14/07 (S) DP: ELLIS, BUNDE, DAVIS, STEVENS
03/21/07 (S) FIN RPT 7DP
03/21/07 (S) DP: HOFFMAN, STEDMAN, ELTON, THOMAS,
DYSON, HUGGINS, OLSON
03/21/07 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/21/07 (S) Moved SB 97 Out of Committee
03/21/07 (S) MINUTE(FIN)
03/26/07 (S) JUD REFERRAL ADDED
04/02/07 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
Jim Gorski, Attorney
Anchorage, AK
POSITION STATEMENT: Spoke against SB 112
David Clohessy
Survivor's Network of those Abused by Priests (SNAP)
St Louis, MO
POSITION STATEMENT: Spoke in support of SB 112
Joe Austin
Anchorage, AK
POSITION STATEMENT: Spoke in support of SB 112
Tim Lambkin, Staff
Senator Stevens
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 97
Ted Popley, Legislative Legal Counsel
Juneau, AK
POSITION STATEMENT:
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:35:34 PM. Present at the call to
order were Senator Wielechowski, Senator McGuire, Senator
Therriault, and Chair French.
SB 112-STATUTE OF LIMITATION FOR SEXUAL OFFENSES
1:35:57 PM
CHAIR FRENCH announced the consideration of SB 112. It has had
one hearing already, he noted.
JIM GORSKI, Attorney, Anchorage, said one of his clients is the
Society of Jesus--Oregon Province, also known as the Jesuits. He
was asked to speak on SB 112, and to "approach it from the point
of view from which I know best, which is…litigation." As a
lawyer, his job is to advise a client regarding potential
ramifications of the bill. He said SB 112 seeks to make a
retroactive change to the statute of limitations for certain
civil actions alleging felony sexual assault or abuse. It is a
serious crime that must be eradicated, he said, but SB 112
doesn't assist in that goal. The bill isn't meant to deter or
prevent sexual abuse, but it seeks to create a retroactive
suspension of the statute of limitations to allow adjudication
of potentially expired legal claims.
MR. GORSKI explained that the statutes of limitations were
created to preserve the integrity of the process. The question
could be asked for any wrongdoing: why not file suit at any
time? But since the formation of our country, limitations were
recognized as a necessary component for a fair and well-ordered
system of jurisprudence. The U.S. Supreme Court has suggested
they are vital to the welfare of society, and they are found in
all systems of enlightened jurisprudence. They are attempts at
striking a balance. Due process is a fundamental constitutional
right that requires substantial fairness in the resolution of
disputes. Older claims have increased difficulties in obtaining
reliable adjudications, which require reliable and competent
evidence. Common sense recognizes that adjudications become less
reliable with the passage of time. Evidence may be lost, key
witnesses may be gone, and witness testimony becomes less
reliable as memories fade and recollection of events becomes
colored by intervening experiences.
1:41:03 PM
MR. GORSKI said statues of limitation reduce mistakes and
erroneous decisions. The statutes give stability to the law and
to society, and they encourage the prompt resolution of disputes
and allow parties to predict potential liabilities. Alaska has
statutes of limitations for all kinds of claims, he added, and
they are aligned with statutes across the country.
1:41:59 PM
SENATOR HUGGINS joined the committee.
MR. GORSKI said the key issue with statutes of limitations is
the accrual date of the cause of action, which is when the
statute begins to run. The accrual date of a tort action is when
the injury is inflicted. Alaska has a number of tolling
provisions that provide some exceptions. "These tolling
provisions are very important to your consideration of SB 112,"
he stated. They delay the start date of the limitations to
insure that the limitations are applied fairly. Examples include
minors who can wait until the age of 18 and people who are
incapacitated. There is a delayed discovery tolling, which is
not in Alaska statutes, but it is in case law as articulated by
the Alaska Supreme Court as in most courts around the country.
This tolling provision applies to those who don't know they were
injured by someone's conduct; the statute doesn't begin to run
until the plaintiff or the claimant knows that this person's
tortious conduct injured them. It's a discovery process, and the
classic example is a surgeon leaving a sponge in a patient's
stomach and not discovering it until later.
MR. GORSKI concluded that under current statutes of limitation,
later claims are not prevented under the aforementioned
criteria. If a claimant could have filed a timely action but
chose not to do so, the statute of limitations does apply. He
said SB 112 would change the law. "As I read it, for tort claims
involving allegations of felony sexual abuse, the applicable
statute of limitations depends on when the claim arose. For
claims arising before October 1, 2001, the general two-year
statute of limitation and 10-year statute of repose apply,
subject to any relevant tolling provisions…For claims arriving
after October 1, 2001…the legislature has modified the statute
of limitations prospectively to allow those claims to be
initiated at any time." SB 112 does not have any effect on
prospective legal claims, and it will not affect any claims
preserved under current tolling provisions. "What it does is
make a narrow retroactive change to the law to affect only legal
claims which may, depending on the application of the tolling
provisions, have expired."
MR. GORSKI asked the purpose of this if it is not going to serve
as a deterrent. This bill is problematic. Other than in
California, such efforts have not been successful, because there
is recognition that there's a threat to the integrity of the
legal process. "To retroactively suspend the statute of
limitations impairs the reliability that we put in our system of
jurisprudence to resolve disputes in a timely fashion where the
evidence is fresh in everybody's minds." The bill's retroactive
suspension allows allegations of past wrong-doing with no
consideration for how long ago it occurred. Schools, boroughs,
correctional facilities, and other public entities, and private
entities such as the Cub Scouts or churches risk being subjected
to claims from many, many years ago, when the people involved
aren't even around, he noted. It increases the risk of
inaccurate and fraudulent claims. There may be no one to
disprove or challenge someone's allegations, he said. If the
alleged perpetrator is dead and the victim is alive, it's not a
dialog; it's a monolog. That is not the way our system
functions, he stated. There is also difficulty in the lack of
notice that such claims would be resurrected, unlike the 2001
legislation where everybody is on notice. Here, there is no
notice on the record or in the statute that suggests that these
old claims could be resurrected. Going back 30 years is
difficult-the IRS only looks back six years.
MR. GORSKI said that presently no one is denied access to
Alaska's legal system for these old claims. He said he can speak
to that with first-hand knowledge. "However, as the forum is
chosen by the claimant for resolution, i.e. the courts of
Alaska, we necessarily have to look at those claims and evaluate
those claims in rules in the light of the forum." He said Father
Whitney has a standing offer to virtually anybody to sit down
and talk about the claims. "Not everybody takes us up on that
offer for any number of different reasons," he said. Of the
claims Mr. Gorski is personally aware of, there are 2 from the
1950s, 34 from the 1960s, 60 from the 1970s, only 7 in the
1980s, and nothing since. He said the issue has pretty much
resolved itself over the passage of time. Of the 15 identified
perpetrators involved in his litigations, 10 are deceased, and
many have been dead for 10 or 20 years. He said trial dates have
been set in 8 matters, so the cases are moving forward and being
brought to resolution. Discovery is ongoing, and at the end of
the day, present law strikes a proper balance between the rights
of victims and the rights of the alleged perpetrators. He said a
balance is difficult "in these very tragic matters," but the
Supreme Court says to find out if there is valid reason for the
delay. If there is no valid reason, then the statute of
limitations applies. Mr. Gorski concluded that current law
should stand.
1:52:42 PM
SENATOR THERRIAULT asked if there is no statute of limitations
for the offenses being talked about.
CHAIR FRENCH said there is a statute of limitations that was
changed in 2001 when the legislature decided that "from this day
forward, you can prosecute any sex crime whenever you get to
court on it. But for those sex crimes that occurred in the past,
you can't change the statute of limitations with respect to them
because of the expos facto clause." So sexual assault in the
past, where there may even be a full confession or a child
support order, cannot be prosecuted criminally.
SENATOR THERRIAULT asked if the burden of proof would have been
much higher for the civil.
CHAIR FRENCH said yes, beyond reasonable doubt to a unanimous
jury verdict. There is no possibility of anyone going to jail,
and the burden of proof is lower. It is preponderance of the
evidence, but it still requires a unanimous jury verdict, he
explained. He asked if Mr. Gorski is arguing about whether this
is an expos facto violation or if he is just saying that the
system has come to a balance, and that balance is better
preserved by not looking backwards and subjecting a defendant to
a stale claim.
MR. GORSKI said the expos facto clause primarily focuses on
criminal types of statutes. "I think there is a potential
constitutional concern about doing the same thing on the civil
side, and each one is always a little bit factually oriented.
It's one thing if the person--the alleged perpetrator--is still
alive and here; it is another thing completely when the alleged
perpetrator is dead and gone." Constitutional concerns could
include an expos facto analysis, but it is not called that in
the civil sense because the expos facto clause is criminally
oriented.
SENATOR HUGGINS said, "I am assuming we're talking about
punitive effect of dollars. Is that what we're looking at here?"
MR. GORSKI said yes, the claims being asserted are all a matter
of dollars. The church has routinely offered to pay for
counseling, and they have paid many, many dollars for that. But
it's a question of finding a just result, and the Jesuits have
worked mightily to help people, but at the end of the day it is
a question of dollars.
SENATOR McGUIRE said she is interested in the new concept of
"being allowed to say that you have a revelation about
something, but you don't have to reveal it because in an
ecclesiastical sense, God supersedes our government and our
laws." She asked how that plays into the cases. She asked how
other states handled the issue of deceased defendants.
1:57:52 PM
MR. GORSKI said she is alluding to the Doctrine of Mental
Reservation. A number of deposed priests have said they will
tell the truth. It is a civil court of law, not an
ecclesiastical court. He surmised that the doctrine suggests
that it may be okay to not tell the truth if there is a greater
good that could be generated. One example is hiding a Jewish
family in Nazi Germany. His clients swear to tell the truth, and
he thinks it is a Middle Age anachronism that people throw out
to muddy the water; it isn't relevant. Secondly, he is not
"super familiar" with how other states handle deceased
defendants. In California there was a 90-year-old claimant, so
he assumes the alleged perpetrator was long dead.
SENATOR THERRIAULT asked if he testified that California is the
only state that has opened a window similar to SB 112.
MR. GORSKI said that is the most prominent state, and it had a
one-year window and saw a couple of thousand claims during that
time. He said Colorado, Wisconsin and Ohio had proposals that
didn't pass. He said different states have dealt with the issue,
but those are the ones that he is familiar with. He could get
that information.
2:01:30 PM
SENATOR McGUIRE stated her strong support for victims, and she
surmised Mr. Gorski feels the same. "If the goal was not to
bankrupt the churches or underlying organizations, than perhaps
a cap would be something I would consider on damages." The point
of the bill is to get access to the truth for the victims. That
is what is important to her, she said. It is for victims to get
validation that it was real, it is to hold a person and
institution accountable - and through the discovery part of
civil court there is access to the truth - and "it is to put the
public on notice in the event that there are still individuals
who committed this kind of conduct that are still out in our
communities." She said there isn't enough money in the world to
make people feel whole for the things that happened to them. She
said she is sympathetic to bankruptcy and the statute of
limitations, but other methods of getting to the information
haven't worked. She added that she supports the bill and wishes
it didn't have just a one-year window.
2:03:57 PM
MR. GORSKI said he doesn't believe that the current system isn't
working. Many claims don't come about until his clients are
served with a summons for a lawsuit. "Immediately the
opportunity to have any kind of pastoral outreach is thwarted
because they're represented by counsel - you have to go through
counsel." He said a person can call the archdiocese of Anchorage
or Standing Together Against Rape. Those options aren't being
exercised, he noted. A lawsuit is filed instead. "I can tell you
that in the lawsuits that we've been involved with, there have
been tens of thousands of documents in the discovery process
that have been passed out and exchanged between the parties." He
said it was amazing what people keep, and "if there were a rhyme
or reason to it, it would be a lot better." Missionaries in
rural Alaska didn't have Xerox machines and filing cabinets, he
said. "It's a potluck situation," he added. The courts have said
that "before somebody is taken away, they are saying that you
cannot exercise your rights and remedies, you're entitled to go
through the discovery process. So we're doing that. We're
spending untold hours of time gathering information in
response…it's very easy to make a request for production in the
litigation process. Provide us all documents that you have
regarding X - either Father So-and-So or Mr. Smith." Access is
being provided, he emphasized. "In Alaska, every time there is
any kind of a salacious anything, it's on the news," he added.
SENATOR McGUIRE said she is glad it is on the news. This problem
has been around for decades and it was never on the news. It was
in whispers and secrets, "so if you're trying to sway me, you're
not swaying me in the right direction."
MR. GORSKI said he doesn't dispute that, but the jury is
supposed to hear evidence in an untainted fashion. Premature
information can jeopardize the ability to get a fair trial.
There are issues that need to be raised, and the media is one
way to do so. But as a lawyer, believing that everyone deserves
an impartial trial, some of the information has nothing to do
with the allegations and doesn't serve a good purpose.
2:08:43 PM
MR. GORSKI said he can't speak for his clients on the issue of a
cap. That is another one of these policy decisions where no
amount of money will make it right, he said. The bill, as
proposed, is retroactive, and it raises serious constitutional
issues in situations with a dead alleged perpetrator. It isn't a
dialog. The statute of limitations is focused on the claimant-
what did you know and when did you know it? "Once you found the
sponge was in your stomach, does that mean you could wait for
five or ten years before you filed suit against the surgeon?"
Alaska law says, once known, a person has two years.
2:10:24 PM
CHAIR FRENCH noted that Mr. Gorski wasn't present during the
testimony of victims. He spoke of the fear, shame, and resulting
alcoholism and serious life problems that the events give rise
to. A boy was beaten by his father for disclosing the abuse. The
psychological repression is different from a sponge in a
stomach.
MR. GORSKI said he used the sponge analogy because it is a
simple one, and the issues here are far more complex and
horrific. That is why experts testify if someone wasn't able to
meet the two-year time frame, he said. We know it is
embarrassing and horrific but current law says "once you get to
that point--and that's what this process is under the discovery
rule--once you get to that point, you have an obligation to move
the case forward."
SENATOR THERRIAULT said current law is not so automatic that
once you reach the age of 18, it starts ticking. A person can
make a case that a psychological reason kept him or her from
meeting that standard. He asked the connection between Mr.
Gorski, Bob Groseclose, and Cook, Schuhmann & Groseclose.
MR. GORSKI said Mr. Groseclose represents the Catholic Bishop of
northern Alaska, the diocese of Fairbanks. The defendants
include the diocese - the corporate entity that exists for
northern Alaska - and the Jesuits. "So I'm representing the
religious order from which a number of these defendants - the
priests - were from." Mr. Groseclose represents the diocese
itself. The Jesuits would allow the priests to serve in the
diocese, "and so they have two different potentially liable
parties is what they're looking for."
SENATOR THERRIAULT noted that Bob Groseclose is a principle
partner in his wife's law firm. He said the bill would mean lots
of litigation and bankruptcy, and that's what she does. "It
would be great for her, but I just don't know if that's the
right policy," he stated.
2:14:42 PM
DAVID CLOHESSY, National Director, Survivor's Network of those
Abused by Priests (SNAP), St. Louis, Missouri, said there are
8,000 members across the country. He told the committee that
three of his brothers were abused by the same priest who
molested him. One of those brothers went on to become a Catholic
priest and became a child molester himself. He said to remember
one figure. If the present system works, as Mr. Gorski
testified, "how do we explain the fact that the FBI estimates
that 90 percent of child molesters are never caught or
prosecuted or convicted?" Efforts are needed to deal with the
horrific problem. He said everyone has wonderful imaginations,
and we can do what his mother called "awfulizing." "We can spend
hours speculating about potential future harm." He said our
society is blind to actual harm. The current reality is there
are hundreds or thousands of Alaska citizens who were molested
and have no criminal or civil recourse. The cab driver who
picked him up at the airport yesterday said, "Good luck; it
happened to me too."
MR. CLOHESSY said it comes down to prevention versus secrecy.
There is no question that this civil window is the single most
effective way to prevent future abuse. There are child molesters
out there now who have run out the clock. They have intimidated
victims and threatened witnesses and they have essentially
destroyed evidence. And now they can't be prosecuted, he said.
The passage of time hurts the claimant, he stated. "The burden
of proof is on us; it's not on Mr. Gorski and his clients…He
talked out of both sides of his mouth because you heard him say
that there were tens of thousands of documents that they had to
wade through when these cases came forward." Some people using
the window in California were out of luck because of a lack of
records and witnesses. Mr. Gorski's slippery slope argument is
ridiculous, and he asked if other aggrieved parties are asking
for this. It is a ludicrous argument. Five years ago California
enacted a law similar to SB 112, and not one individual has come
forward saying, "I was hurt as a child in some other way, and I
need more time to expose my predator."
MR. CLOHESSY spoke of the sponge analogy. A victim of bad
surgery is usually an adult, and problems tend to be accidental.
Repeated deliberately reckless surgeries by a physician aren't
common. Child molesters do it serially. There needs to be
special allowances. The victims are confused, frightened,
intimidated children, and the crimes are repeated over and over.
Nearly all victims he has spoken to have said they just want to
make sure that it doesn't happen again. Even when the
perpetrator is dead, the rigid, secretive, centuries-old, all-
male hierarchy has not changed. He surmised that if every
sexually abusive priest dies tomorrow, the legislation will
still be needed. Five years from now there will be another
institution in a similar situation, and the legislature can say
that the problem is fixed.
MR. CLOHESSY said it is ludicrous to say that this problem is
getting resolved on its own. There always has been and will
always be child molesters. There also will always be people too
timid to do anything about it, and there will be people who are
proactive and responsible and prevent harm from being done, he
stated. Child molesters will always gravitate to where they will
have power over kids. Headlines won't fix it, and the
legislature must. He said he agrees with Senator McGuire. The
purpose of the bill is to expose child molesters that are free
and to expose people who shielded them. The second purpose is to
get at the truth. The truth shall set you free. The one thing
that Mr. Gorski and his clients do not want to do-and that's why
they pay settlements and that's why he and his colleagues across
the country fight this kind of legislation-is they do not want
the officials to have to take the oath and acknowledge what they
knew and how little they did about predators. He said the bill
is not directed at the Catholic Church, but at any child
molester and anyone reckless enough to hire them and self-
serving enough to keep that person on the payroll instead of
getting rid of him when the first allegations come forward.
MR. CLOHESSY said to keep in mind the 90 percent figure. The
burden of proof falls on claimants. There is a chance for a
false claim, but juries do a pretty good job of sorting fact
from fiction. The church's own leading defense lawyer told the
New York Times that he represented more than 500 accused
pedophile priests, and less than 10 of them were falsely
accused. Before considering a cap, ask Mr. Gorski's clients to
disclose to an independent party the amount of property,
insurance and assets they have. The Orange County settlement for
$100 million was the largest settlement in history that involved
one institution in child sexual abuse, and it repaid its loan in
six months and is now building a $150 million cathedral. If the
goal is to deter recklessness, wrongdoing, destruction of
evidence, secrecy, and scaring victims, caps won't help in that
respect.
2:24:40 PM
CHAIR FRENCH said the committee should have three papers on
expos facto. He said he appreciates that Mr. Gorski is not
focusing on that as the centerpiece to his opposition to the
bill. But the committee should consider the arguments that were
advanced. In 2006, a decision entitled Catholic Bishop of
Northern Alaska v. John Does 1-6, says, with respect to the 2001
changes on the statute of limitation, "had the legislature
intended it to apply retrospectively, it would have used similar
language…thus we conclude that the plaintiffs cannot rely on
this statute as a basis for their claims." It discusses that Mr.
Luckhaupt said that the expos facto clause would forbid a time-
barred prosecution of sex abuse claims. It discusses it a little
more without resolving whether a retrospective change on the
civil statute of limitation would be a violation of the expos
facto law.
2:27:35 PM
CHAIR FRENCH quoted a March 30, 2007 memo from [Dennis] Bailey,
[Alaska Legislative Affairs Agency] saying it may or may not be
a violation. He said Mr. Bailey was equivocal, and he notes that
there is authority from other jurisdictions finding that
constitutional prohibition against expos facto laws applies only
to criminal laws. He said Mr. Bailey couldn't find an Alaska
case that definitively states that it only applies in the
criminal setting in Alaska. Mr. Bailey points out that the
Attorney General's opinion is that expos facto laws relate to
crimes in criminal statutes only. On page 3, Mr. Bailey notes
that in other Alaska cases, the Alaska Supreme Court has held
that an extension of the statute of limitations was a procedural
change that did not violate expos facto. Mr. Bailey pointed out
that the Alaska Supreme Court upheld a retroactively applied
criminal law requiring the registration of sex offenders.
Senator French construed a couple of things from that. "I think
the court would view a statute of limitations change in this
subject matter somewhat leniently…given that they were willing
to allow a retroactive criminal law with respect to registration
of sex offenders." He said that issue was hotly contested.
2:29:35 PM
CHAIR FRENCH said another document in the committee packet is a
district court decision, and the court points out that the expos
facto clause in the constitution prohibits the federal
government or states from enacting laws with certain retroactive
effects. It points to some cases. One is Calder v. Bull from
1798, and the court concludes, on page 22, that the California
law is not an extension of criminal punishment, and therefore
the law simply extends the statute of limitations for the filing
of a civil tort cause of action, and it is not an expos facto
problem. "So I think it's fair to say that the law leans in the
direction that it's not being an expos facto problem; it's
certainly not clear cut." It is something to keep in mind, he
stated.
2:31:22 PM
JOE AUSTIN said he is a retired Anchorage Police Department
investigator who is testifying as a concerned citizen. He said
he worked in the homicide unit and on sex crimes, and he
organized and supervised the Crimes Against Children Unit in the
early 1990s. In 1992, over 1,700 cases were reported to the
unit, and of those he assigned about 700 to the nine
investigators in the unit. The ones that couldn't be
investigated were ones where no crimes were committed or there
was a lack of evidence. There were also the cases that were
outside the statute of limitations, which was frustrating to
him. In 1990 he asked former Senator Donley to introduce
legislation which resulted in the law of changing the statute of
th
limitations to 10 years past a person's 16 birthday. Since then
the 2001 law removed the statute of limitations for sex crimes.
He said his unit investigated all types of maltreatment of
children, and about two thirds of the caseload dealt with sexual
abuse. Most involved intra-familial abuse, usually by the
father, stepfather or uncle. The extra-familial cases are the
most dangerous because there could be dozens or hundreds of
victims. One molester molested over 400 kids, he noted. A
molester can be found in all professions. He found that victims
don't report the abuse until years later. By passing SB 112,
victims that are now barred will be able to have their day in
court, and it may allow healing to begin, he said. Another
benefit is exposing child predators that have remained under the
radar for years. It may also discover evidence allowing law
enforcement to investigate and prosecute these predators. Public
exposure will help prevent future victimization, he concluded.
2:35:47 PM
SENATOR McGUIRE asked why the bill excludes AS 09.10.140, and
why it is just for one year. Perhaps the secrecy and
intimidation still exists, she said.
CHAIR FRENCH said it is a balance between totally opening the
doors and confronting the issues that Mr. Gorski raised. Since
2001 there is no statute of limitations, so there is a narrowing
number to whom this will apply. It will allow time for those to
come forward and then they enter a state of repose. Her other
question dealt with why just felony sexual abuse and not
misdemeanor sexual abuse. He said it is a policy call. He said
the difference in severity and provability in a penetration
claim versus a touching claim seemed a rational balance.
SENATOR THERRIAULT asked about a cap, allowing just for court
costs, or donating to a victim's compensation fund. "I don't
know if whether we're dealing with a cottage industry that's
building up and bringing this type of case around the nation and
now proposing to bring it in the State of Alaska." He said he is
concerned that all testifiers were psychologists involved in
these cases, victims, and attorneys. No one testified from the
judiciary. "If we were just writing this whole section of
statute without any cases, where would we strike that balance?"
He is afraid of emotionally changing something that goes back to
England and old common law. He would like to hear from a retired
judge or somebody without a dog in the fight, especially since
this is the only committee of referral.
CHAIR FRENCH said he has tried to be sensitive to the fact that
this is the only committee hearing the bill. He waited for
witnesses that were out of the country. He questioned the
ability to find a totally neutral individual. Mr. Gorski gave a
good explanation of why there is a statute of limitations. The
committee heard both sides, and the policy call is there, he
said. Do we accept that fear, shame, or a beating from your
father overcomes fairly tight legal reasons for not disclosing
events? he asked.
SENATOR McGUIRE asked if any other state considered excluding
the church tithe money. "I don't think there's a way around it,
I'm just expressing on the record that general reservation."
There are folks that have given their hard-earned money, she
said.
CHAIR FRENCH said he can't imagine a more painful process to
enter into.
2:42:08 PM
SENATOR HUGGINS said he is interested in what the victims have
ended up with in the judgments. These things are terrible, but
it begs the question of who is being punished since many people
are dead, and church money comes from people who tithe. "A lot
of people owe their salvation to the church-not to defend
anybody that protected these people…I would be one to go help
chisel on somebody's gravestone that they were a sexual
pervert…but in the same token I would be interested to see what
the divisions of moneys look like and how much actually ends up
to the victim."
MR. CLOHESSY said 90 percent of the settlements come from
insurance, so the costs have been paid by previous generations.
A victim gets 30 to 40 percent from a settlement. He added that
even with a window, an overwhelming majority of victims simply
can't or don't come forward and pursue litigation. He said they
are embarrassed and worried about what will be said or done to
them.
SENATOR HUGGINS said he firmly believes in accountability, but
in some sense it is ultimately about money, and "to that extent
it gives me a little bit of discomfort."
MR. CLOHESSY said Senator McGuire hit the nail on head, and what
victims really want is the perpetrator and anybody who covered
up for the perpetrator to be exposed. They want to prevent that
recklessness. "And the validation that comes when a jury says
yes we believe…."
SENATOR HUGGINS said he concurs.
SENATOR THERRIAULT said the debate has been about the acts in
the church, but this bill opens the window up for anybody,
including boy scouts, which Senator Therriault has been involved
with for ten years. It also includes Girl Scouts, Brownies, and
any organization. That is why he is really concerned that the
committee has not heard from anybody who is disassociated with
all the present cases to "just give us some suggestions on how
we might be tilting the legal field in a system that's been in
existence for hundreds and hundreds of years." He is not sure
the discussion has been adequate.
At ease from 2:46:40 PM to 2:48:03 PM.
CHAIR FRENCH said Senator Therriault has some policy concerns,
but the likelihood of getting a black and white answer to that
question is fairly limited. He said the committee has heard from
both sides on the basic structure of the statute of limitations.
SENATOR McGUIRE motioned to report SB 112 from committee with
individual recommendations and attached fiscal note(s).
SENATOR THERRIAULT objected. He said there is "nothing real time
sensitive, and I think that perhaps we could find somebody from
the judiciary that's really disassociated with any of the
emotion that's attached to this issue just on the sensibility of
the change that we're contemplating here and the ramifications
it has in our legal system that's been in place for hundreds and
hundreds of years." There could be suggestions on how to make
the change without inviting a bunch of trumped-up cases to
stampede through the window while it's open.
CHAIR FRENCH said the bill was brought up a week ago and he gave
notice to the world that it was going to be heard again today.
SENATOR HUGGINS said he would support the bill with reservations
because it is not that time sensitive. It could be done this
session or next. He said he identifies and understands the
victims' piece of it, but there are potentially large spillovers
that give him discomfort.
SENATOR THERRIAULT removed his objection.
CHAIR FRENCH announced that, without objection, SB 112 moves
from committee.
At ease 2:50:26 PM
SB 97-ALASKA NATIVE ART IDENTIFICATION SEALS
2:53:18 PM
CHAIR FRENCH announced the consideration of SB 97.
TIM LAMBKIN, Staff to Senator Stevens, Sponsor of SB 97,
explained that the bill was introduced on behalf of the Alaska
State Council on the Arts. It seeks to bring increased
credibility to the silver hand program, which has been stymied
by fraud. SB 97 has "no motivation other than to modernize the
statues regarding silver hand permitting and to rejuvenate a
program that is poised to blossom," he stated.
MR. LAMBKIN explained that as the bill gained momentum problems
came to light relating to the legal terms used in the
definitions section. He noted a proposed amendment to address
the policy issue of using phrases of recognized tribes in
Alaska.
CHAIR FRENCH asked for a motion to adopt Amendment 1.
SENATOR McGUIRE moved Amendment 1, labeled 25-LS0405\M.1.
SENATOR THERRIAULT objected for discussion purposes.
MR. LAMBKIN explained the amendment intends to avoid inadvertent
consequences of using the word "recognized" when referencing
federal statutory language to define Indian tribes in Alaska.
The bill is definitely not intended to open the debate of
whether there are or are not recognized tribes in Alaska, he
stated.
CHAIR FRENCH asked how many years the silver hand program has
been in statute.
MR. LAMBKIN said since 1961.
CHAIR FRENCH said the issue with respect to the amendment
addresses the definition of what is and what is not a tribe.
SENATOR THERRIAULT said he'd like Mr. Popely to discuss the
limitations associated with using the definition with respect to
the Indian Self-Determination and Education Assistance Act.
2:56:58 PM
TED POPLEY, Legislative Legal Counsel, said the issue is
controversial and largely unresolved from the legislature's
perspective.
CHAIR FRENCH asked if the controversial issue is the federal
recognition of tribal status in Alaska.
MR. POPLEY said the issue is whether or not federally recognized
tribes with powers of sovereign governmental immunity exist in
Alaska. The purpose of the amendment is to try to avoid that
issue being further confused in this legislation, he stated.
Certainly lots of legislation passes that addresses Alaska
Natives as groups, but the danger is putting forth legislation
that suggests that the legislature recognizes or wishes to
recognize federally recognized Indian tribes for purposes such
as sovereign immunity.
CHAIR FRENCH asked Mr. Popely if he believes this amendment
reduces the likelihood that there will be some recognition of
sovereign tribes in Alaska.
MR. POPLEY replied he believes that "Amendments 1 and 2
together…eliminate the issue altogether from this piece of
legislation."
CHAIR FRENCH asked if Amendment 1 takes care of the problem.
MR. POPLEY noted that everything is contained in Amendment 1 and
he articulated the view that it would "keep this issue from
becoming a central part of this bill."
CHAIR FRENCH asked for clarification that he sees that Amendment
1 incorporates both the ideas he referenced initially.
MR. POPELY said yes.
CHAIR FRENCH asked if there is further objection to Amendment 1.
SENATOR THERRIAULT withdrew his objection.
CHAIR FRENCH announced that Amendment 1 is adopted and the bill
is back before the committee.
SENATOR THERRIAULT asked if there is any need to insert
boilerplate language - such as Congress inserts - stating that
there is no intention to change the current status of
recognition.
MR. POPLEY said he doesn't think it's necessary. "The insertion
of the language that describes Indian tribes through the federal
definition…does specifically indicate that that list of groups
is strictly for receiving benefits as defined by the federal
government and for no other purpose," he stated.
3:01:14 PM
CHAIR FRENCH stated that the bill was sent to the committee to
fix this specific problem and that has been accomplished. He
asked if there are any other concerns.
SENATOR THERRIAULT stated that the existing stature has had an
equal protection issue for 45 years.
CHAIR FRENCH thanked him for the disclaimer and qualification
and asked for the will of the committee.
SENATOR McGUIRE motioned to report CSSB 97(JUD) from committee
with individual recommendations and attached fiscal note(s).
There being no objection, it was so ordered.
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:01:56 PM.
| Document Name | Date/Time | Subjects |
|---|