02/13/2019 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB12 | |
| SB35 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 12 | TELECONFERENCED | |
| *+ | SB 35 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 13, 2019
1:31 p.m.
MEMBERS PRESENT
Senator Shelley Hughes, Chair
Senator Lora Reinbold, Vice Chair
Senator Peter Micciche
Senator Jesse Kiehl
MEMBERS ABSENT
Senator Mike Shower
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 12
"An Act relating to crime and criminal procedure; relating to
assault and sexual assault; relating to harassment; relating to
credit toward a sentence of imprisonment for time spent in a
treatment program or under electronic monitoring; and providing
for an effective date."
- HEARD AND HELD
SENATE BILL NO. 35
"An Act eliminating marriage as a defense to certain crimes of
sexual assault; relating to enticement of a minor; relating to
harassment in the first degree; relating to harassment in the
second degree; relating to indecent viewing or production of a
picture; relating to the definition of 'sexual contact';
relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
- HEARD AND HELD-
-
PREVIOUS COMMITTEE ACTION
BILL: SB 12
SHORT TITLE: ASSAULT; SEX OFFENSES; SENTENCING CREDIT
SPONSOR(s): SENATOR(s) MICCICHE
01/16/19 (S) PREFILE RELEASED 1/7/19
01/16/19 (S) READ THE FIRST TIME - REFERRALS
01/16/19 (S) JUD, FIN
02/13/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 35
SHORT TITLE: CRIMES;SEX CRIMES;SENTENCING; PAROLE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/23/19 (S) READ THE FIRST TIME - REFERRALS
01/23/19 (S) JUD, FIN
02/13/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
EDRA MORLEDGE, Staff
Senator Micciche
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented a sectional analysis on behalf of
the sponsor of SB 12.
JOHN SKIDMORE, Deputy Attorney General;
Director, Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of SB 12.
KEVIN CLARKSON
Attorney General Designee
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Presented SB 35 on behalf of the
administration.
AMANDA PRICE, Commissioner Designee
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of SB 35.
NANCY DAHLSTROM, Commissioner Designee
Department of Corrections
Anchorage, Alaska
POSITION STATEMENT: Testified during the discussion of SB 35.
JOHN SKIDMORE, Deputy Attorney General;
Director, Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 35.
ACTION NARRATIVE
1:31:53 PM
CHAIR SHELLEY HUGHES called the Senate Judiciary Standing
Committee meeting to order at 1:31 p.m. Present at the call to
order were Senators Kiehl, Reinbold, Micciche, and Chair Hughes.
SB 12-ASSAULT; SEX OFFENSES; SENTENCING CREDIT
1:32:16 PM
CHAIR HUGHES announced that the first order of business would be
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 12, "An Act relating to
crime and criminal procedure; relating to assault and sexual
assault; relating to harassment; relating to credit toward a
sentence of imprisonment for time spent in a treatment program
or under electronic monitoring; and providing for an effective
date."
CHAIR HUGHES remarked that she scheduled SB 12 and SB 35 to be
heard together since these bills attempt to close a loophole
that allowed for the Justin Schneider case. This bill, SB 12,
has similar provisions to SB 35, a crime bill introduced by the
Governor. However, he felt it was important to have a stand-
alone bill since it improves the chances that it could make its
way through the legislature this year and highlights the desire
to eliminate free passes for such crimes.
1:33:10 PM
SENATOR MICCICHE, as sponsor of SB 12, characterized this bill
as the "Justin Schneider Loophole Elimination Act." After
further research, he introduced a sponsor substitute for SB 12.
1:34:05 PM
CHAIR HUGHES clarified that the committee would be considering
[work order 31-LS0263\U, referred to as] Version U, which was
read across the floor.
1:34:20 PM
SENATOR MICCICHE said that he has a wife and four daughters and
has been working to address the issue of domestic violence and
sexual assault in Alaska for many years. He said he was appalled
with the results of the Justin Schneider case just as were many
Alaskans. He paraphrased from his sponsor statement, which read
as follows:
Sponsor Substitute for Senate Bill 12 (SSSB 12)
eliminates loopholes in Alaska law that have
contributed to the inability to hold perpetrators of
sexual assault adequately accountable for their
actions. The bill will prove to victims that Alaskans
have had enough and will stand with them to prosecute
and incarcerate sexual predators while creating
adequate deterrence for future violent crimes.
1:34:56 PM
SSB12 removes the "Schneider Loopholes" in Alaska's
criminal code that allowed a violent sexual predator
to walk free without jail time last September. The
result of Justin Schneider walking free garnered
national attention as Alaskans stood by in disbelief
that such a free pass could occur after Justin
Schneider brutally strangled a woman to the point of
unconsciousness and then ejaculated on her. The plea
deal decision also resulted in the unprecedented
removal of a judge (Corey) for decisions made in the
case.
1:36:40 PM
SSSB12 will improve our sexual assault laws in several
important ways: 1) it will classify unwanted contact
with semen as a sexual crime, which means perpetrators
can be required to register as sex offenders for this
crime, 2) it will require that strangulation to the
point of unconsciousness is defined as assault in the
first degree, which carries a sentence of 5 to 20
years, and 3) it would eliminate credit toward time
served for electronic monitoring.
In recent years, one outrageous story after another
about criminals getting a slap on the wrist has
dominated our headlines. The case of Justin Schneider,
however, forces us to confront just how badly our
criminal justice system has been failing victims and
survivors of sexual assault. SSSB12 will define how we
prosecute specific areas with loopholes in domestic
violence and sexual assault. I look forward to working
with my colleagues in the legislature and with
Governor Dunleavy's administration to ensure the
safety of all Alaskans.
It is time to stand up and say enough is enough; there
will be no more free passes for violent sexual
perpetrators in Alaska. I encourage support from
legislators and the Alaska public to expedite passage
of SSSB12, eliminating the "Schneider Loopholes" in
our state's criminal code, and I respectfully request
support for this important legislation.
1:38:16 PM
SENATOR MICCICHE said that he worked with the administration on
the crime bills. He said that understanding the logic of the
changes is very important and Mr. Skidmore can assist the
committee in that regard.
1:38:45 PM
EDRA MORLEDGE, Staff, Senator Micciche, Alaska State
Legislature, provided a sectional analysis of SSSB 12, which
read as follows:
SSSB 12 Sectional Summary v. U
An Act relating to assault in the first degree;
relating to sex offenses; and relating to credit
toward a sentence of imprisonment for time spent in a
treatment program or under electronic monitoring.
1:38:53 PM
Title Change:
Section 1: Amends AS 11.41.200(a), assault in the
first degree, to add new subsection 5, which adds a
person "knowingly causes another to become unconscious
by means of a dangerous instrument" and defines
"dangerous instrument" in accordance with the
definition in AS 11.81.900:
Section 2: Amends AS 11.41.425(a), sexual assault in
the third degree, to add subsection (7), "engages in
masturbation and ejaculates on a person without the
consent of that person."
Section 3: Amends AS 11.61.118(a) to clarify that the
crime of harassment in the first degree, which
includes offensive physical "contact with human or
animal blood, mucus, saliva, semen, urine, vomitus, or
feces," is separate from the sex offense contained in
this bill.
1:40:09 PM
Section 4: Amends 11.81.900(b)(60) to include
"knowingly causing the victim to come into contact
with ejaculate" to the definition of "sexual contact."
Section 5: Amends AS 12.10.010(b) to provide for a 10-
year statute of limitation for the new crime described
in section 2 of this bill.
Section 6: Repeals AS 12.55.027(d) stating that a
court "may not grant credit against a sentence of
imprisonment for time spent in a private residence or
under electronic monitoring."
Section 7: Amends AS 12.55.027(e) to remove
"electronic monitoring" as an option for claiming
credit towards a sentence of imprisonment.
Section 8: Repeals AS 55.027(g)(3), which allowed for
sentencing credit for sex crimes.
Section 9: Applicability. Section 10: Effective date
clause.
1:42:32 PM
MS. MORLEDGE explained that the Department of Law raised some
issues during discussions on the bill. She reviewed suggested
language changes the committee might consider. The language in
Section 2 is duplicative. The language in Section 3 relates to
harassment in the first degree. The sponsor would like to remove
the term "semen" from that section and replace it with "coming
into contact with semen" as a separate sexual offense. In
Section 4, the sponsor would like to change the term "ejaculate"
back to "semen." She deferred to Mr. Skidmore to provide more
details.
1:43:20 PM
JOHN SKIDMORE, Deputy Attorney General; Director, Criminal
Division, Department of Law, reviewed proposed changes to the
sponsor substitute for SB 12 He agreed that paragraph (7) of SB
12 is duplicative after the definition for sexual contact in
Section 4 [AS 11.81.900(b)(60)] of the bill is changed, so it is
not necessary to have a second [paragraph], that it was a
different concept that had been considered. He said that it is
cleaner to remove the language.
He referred to Section 3, on page 3 of SSSB 12, to proposed
language in AS 11.61.118(a)(1), which read, "(1) under
circumstances not proscribed in AS 11.41.425(a)(7)," however,
that was language that was proposed to be added, but if it is
removed the remaining language does not make sense. The word
"semen" can be removed because it will be covered by "sexual
contact" in Section 4. The Department of Law always advises the
legislature to use terms currently found in statute. These are
terms either defined by case law or that are used because
practitioners typically use them. Whenever a new or different
term is used, it begs the question of why that term changed, he
said. He recommended that "semen" be used instead of "ejaculate"
for the purpose of consistency.
1:45:09 PM
SENATOR MICCICHE remarked that it is uncomfortable to discuss
these terms, which emphasizes the importance of the bill. He has
held discussions with the legislative attorneys, Legislative
Legal Services, Legislative Affairs Agency and with Mr.
Skidmore, Deputy Attorney General; Director, Criminal Division,
Department of Law, as to whether the term "semen" requires the
presence of sperm, and whether the term "ejaculate" does not.
MR. SKIDMORE said that he subsequently spoke to the Department
of Public Safety's [Scientific Crime Detection Laboratory] and
based on his conversation with the lab, the term "semen" is the
better term to use since it does not require the presence of
spermatozoa and the lab can test for the substance. This term is
already used in statute and introducing a different term could
raise questions about the precise term.
1:46:30 PM
SENATOR KIEHL related his understanding that Mr. Skidmore
indicated that changing the definition of "sexual contact" to
include "semen" meant it was not necessary to add the penalty of
sexual assault in the third degree. He asked for the specific
reference.
MR. SKIDMORE referred to page 2, Section 2 of SSSB 12 to AS
11.41.425(a), which read as follows:
(a) An offender commits the crime of sexual assault in
the third degree if the offender
(1) engages in sexual contact with a person who the
offender knows is ?
He said that the existing statutes and the framework for sexual
assault and sexual abuse of a minor have three different
categories of elements to create a cascading framework of
conduct that is criminalized. The three areas include the
conduct itself, the mental state of the victim, and whether the
person has another relationship with the child.
MR. SKIDMORE elaborated on the three elements, such that the
conduct first considers whether it is sexual penetration or
sexual contact. Second, it considers the mental state of the
victim, and whether it is without consent or if the victim is
mentally incapable, incapacitated, or unaware. The third
category considers whether the person who engages in the
criminal conduct has another relationship, for example, if the
offender is a parent, coach, or teacher of the victim.
He said that these elements create a rather complex cascading
framework. However, only adding the language in paragraph (7)
would ignore the rest of the existing framework. Altering the
definition of sexual contact will take advantage of the
framework developed over time by case law for consistency, he
said.
1:49:21 PM
SENATOR KIEHL asked whether within that framework, this would
vary the kind of contact being defined from the most egregious
example to the least horrible one.
MR. SKIDMORE answered that sexual contact is found in two
different types of crimes: sexual assault and sexual abuse of a
minor. He reviewed the penalties for sexual assault with the
most serious offense that encompasses contact, which is sexual
assault in the second degree and is a class B felony. It ranges
to sexual assault in the fourth degree, which is a class A
misdemeanor. Sexual abuse of a minor that includes sexual
contact is classified as sexual abuse of a minor in the second
degree and is a class B felony. He would need to refer to
statutes to confirm whether the penalties range to sexual abuse
of a minor in the fourth degree.
1:50:28 PM
SENATOR KIEHL asked whether these cascading levels of offenses
fit with the sponsor's intent.
1:51:08 PM
MS. MORLEDGE asked for further clarification if his question is
whether adding the definition would accomplish the sponsor's
goal.
SENATOR KIEHL related his understanding that the penalty was
originally a class C felony, but under the bill the penalties
fall on a spectrum.
SENATOR MICCICHE answered that he was unsure of his specific
question.
1:52:04 PM
CHAIR HUGHES remarked it would be helpful if Mr. Skidmore has
knowledge of how other crime bills might impact this one.
1:52:24 PM
MR. SKIDMORE answered that nothing in SB 35 or other crime bills
will impact the sentencing being discussed in SB 12. He stated
that the other crime bills affect non-sex crimes. In response to
Senator Kiehl, he directed attention to the language on page 3,
of SSSB 12, to paragraph (7), which read "engages in
masturbation and ejaculates on a person without consent," which
would ignore the circumstances in which a person is
incapacitated or mentally incapable. He related several
scenarios to illustrate that incapacitated people would not be
covered by this subsection. However, by adding it to the
definition of "sexual contact," all of the other scenarios
discussed would be covered. Omitting it would risk missing large
portions of conduct that the legislature already has determined
should be criminalized. He acknowledged that the bill would
increase some penalties from a class C to a class B felony.
However, the legislature has already decided to define "sexual
contact" as including "genitals, anus, or female breasts," which
is classified as a class B felony under the law. He said that to
make every penalty a class C felony would ignore the existing
framework and could result in unintended consequences or create
gaps in the law. He related his understanding is that SSSB 12
intends to address a gap with unjust contact that occurred
without a true penalty for the offender.
1:55:32 PM
SENATOR MICCICHE expressed concern over the removal of "semen"
from AS 11.61.118(a) since it was originally intended to protect
correctional and law enforcement officers from unwanted
offensive contact with human fluid. He asked for further
clarification whether it would be considered a sexual assault if
someone flung semen at another person.
MR. SKIDMORE answered yes. He said he grappled with that but was
not able to differentiate in legal terms the conduct of coming
into contact with semen inside a correctional facility versus
the same conduct outside the facility that could be proved in a
court of law. He considered other types of substances or bodily
fluids, including human or animal blood, mucus, saliva, urine,
vomitus, and feces, but none of these substances are produced
through sexual activity. However, semen cannot be found without
some type of sexual activity, he said. He pointed out that the
provision of harassment was enacted some time ago in response to
conduct within the state correctional facilities, in which
inmates were engaging in this behavior to harass correctional
officers in facilities. However, it was never designed to
address sexual conduct, he said.
MR. SKIDMORE concluded that the criminal justice system must
rely on the discretion of those within the system. It is nearly
impossible to try to legislate every possible hypothetical
situation. Instead, the state relies on discretion, such that
prosecutors would review the facts of each case. He found it
highly unlikely that going forward cases would be handled in the
same way as the Justin Schneider case was handled.
1:59:26 PM
SENATOR MICCICHE asked if a urine sample sent to a lab contained
trace amounts of semen, whether the person would be charged with
offensive physical contact rather than sexual assault.
MR. SKIDMORE said he was not an expert in that analysis, so in
those instances he would consult with the lab. He indicated that
prosecutors would seek to determine the core conduct and would
not likely prosecute it at a higher level. He explained that
every crime must have two elements, a mens rea or the mental
element, and the actus rea, which is actual act. In the scenario
in which an inmate would urinate and fling it on another person,
the inmate would need to know the urine contained semen in order
to be charged at a higher level of crime. The prosecution would
need to prove the knowingly intent, which would be highly
unlikely to prove, he said.
2:02:07 PM
CHAIR HUGHES read the definition of mucus, which is "a viscous
slimy mixture of mucins, water, electrolytes, epithelial cells
and leukocyte that is secreted by glands lining the nasal,
esophageal, and the nasal esophageal, and other body cavities
and serves primarily to protect and lubricate surfaces." She
offered her belief that this scenario would be covered.
MR. SKIDMORE was unsure how the lab would define it, but the lab
can determine if a substance is semen or something else.
CHAIR HUGHES clarified that if something is thrown and not used
for a sexual act, the definition of mucus is broad enough to
cover it.
SENATOR MICCICHE offered his belief that an equal protection
issue would apply since a person could also be sexually
assaulted by a female. He said that he consulted the lab to
determine if it could detect a substance [in females] similar to
semen but was advised that detectible substances are only
produced by males.
2:04:28 PM
SENATOR REINBOLD expressed concern with how the current and
prior crime bills mesh. For example, she wondered whether
granting credit against sentences for imprisonment for time
spent in a private residence or electronic monitoring was in
Senate Bill 91.
MR. SKIDMORE responded that Senate Bill 91 addressed electronic
monitoring and page 4, Section 6 of SSSB 12 brings it back to
pre-Senate Bill 91 law.
SENATOR REINBOLD offered her belief that the public wants Senate
Bill 91 repealed. She hoped that this process can be as clear
and clean as possible. She expressed concern that some penalties
would be reduced from felonies to misdemeanors in the bill.
MR. SKIDMORE responded that nothing else in SSSB 12 relates to
Senate Bill 91. He stated that SSSB 12 addresses gaps in the law
discovered in the Justin Schneider case. The bill addresses
strangulation by adding another subsection to assault in the
first degree, which was not previously addressed in law. Second,
it would address unwanted contact with semen. Third, it would
address electronic monitoring by reverting to pre-Senate Bill 91
law.
2:08:04 PM
SENATOR REINBOLD said that she preferred to be briefed so that
she fully understands the changes.
SENATOR MICCICHE responded that SSSB 12 would isolate four
issues that led to a violent sexual offender not serving time or
being required to be on a sexual offender list. First, SSSB 12
would reclassify unwanted contact with semen as a sexual crime.
Second, it would classify masturbation and ejaculating on a
person as sexual assault in the third degree, which was not
previously a crime. Third, the bill would classify strangulation
as sexual assault in the first degree. Finally, it would
eliminate electronic monitoring, which was being counted as full
credit towards incarceration. In the Justin Schneider case, the
offender was given full credit for time spent on electronic
monitor and was never imprisoned for his heinous crime. Nothing
in SSSB 12 would reduce the classification of any crime to a
lower level.
2:10:24 PM
CHAIR HUGHES asked Mr. Skidmore to confirm that nothing in the
bill reduces crime classifications.
MR. SKIDMORE agreed that nothing in the bill reduces penalties
Instead, the bill takes conduct that was criminalized as a class
A misdemeanor under harassment in the first degree and adds it
to the definition of sexual contact. He related that sexual
contact is found in several statutes, including sexual assault
and sexual abuse of a minor. It would increase the penalty for a
class A misdemeanor to a class B or class C sex felony. In some
cases, it would also retain the classification of the crime as a
class A misdemeanor, but further classify it as a sexual crime.
He was unsure which classification would remain a misdemeanor,
but the crime would be considered sexual assault in the fourth
degree. However, the primary conduct of a case, such as the
Justin Schneider case, would result in sexual assault in the
third degree, which is a class C felony that carries a penalty
of 2-12 years as opposed to a one-year maximum penalty under
harassment.
CHAIR HUGHES asked Mr. Skidmore to cite the specific reference
for members.
2:12:52 PM
At-ease.
2:15:06 PM
CHAIR HUGHES reconvened the meeting.
MR. SKIDMORE referred to AS 11.41.427, sexual assault in the
fourth degree, which is a classified as a class A misdemeanor.
He explained that this statute has five subsections. [Paragraph
(1) and (2)] pertain to employees at a correctional facility or
another place designated by the commissioner of the Department
of Corrections (DOC) when the offender engages in sexual contact
with a person that the offender knows is incarcerated. For
example, this would apply to a correctional officer who engages
in sexual contact with someone incarcerated by the DOC. This
crime is currently classified as class A misdemeanor and is
unchanged by the bill.
He explained the next [paragraph, (2)] refers to the same
conduct of sexual contact by an employee who engages in sexual
penetration with a person who the offender knows is committed to
the custody of the Department of Health and Social Services
(DHSS) and the juvenile victim is 18-19 years of age. This crime
is classified as sexual assault in the fourth degree and would
also apply to someone who is the legal guardian of the victim.
MR. SKIDMORE said that the third instance [paragraph (4)]
relates to a peace officer having sexual contact, with reckless
disregard, with a person in custody or apparent custody of the
law enforcement officer, which is classified as a class A
misdemeanor. The penalty would increase if sexual penetration
occurred to a class C felony. The highest level would pertain to
engaging in the conduct without the person's consent, which is
classified as a class B felony. The penalty is increased to a
class C felony if the activity involved a person who was
mentally incapable, incapacitated, or unaware. This would
increase the penalty in the case of Justin Schneider from 30
days to a range of a 2-12-year sentence.
2:18:00 PM
SENATOR REINBOLD related a scenario in her community involving a
police officer who engaged in sexual activity with a victim in
custody. She emphasized that this is a very important issue in
her community. She expressed concern that the classification is
a class A misdemeanor, which carries a pretty small penalty.
MR. SKIDMORE offered to review the exemptions under the statute,
but the main point is that this bill will increase sentences. He
said he recognizes that some people might not agree with the
current statutes for sexual assault in the fourth degree, but
this statute has not been changed by any criminal justice reform
bill in the last several years.
CHAIR HUGHES related her understanding that the sexual crimes
were excluded from some of the sentence reductions in Senate
Bill 91.
MR. SKIDMORE answered that is correct.
SENATOR REINBOLD said, "but not all of them."
MR. SKIDMORE responded that this gets complicated because a few
statutes that people think of as sexual in nature were not
classified as sex crimes under the sentencing statutes. He
explained that SB 35, which will be discussed later today
intends to address that issue.
2:20:52 PM
SENATOR MICCICHE asked to address the concern he has heard that
SSSB 12 reduces how some crimes are handled. He asked Mr.
Skidmore to explain the effect of removing "semen" from AS
11.61.118(a), which is classified as harassment. This bill would
increase the seriousness of the crime by relocating it to the
sexual assault statutes, he said.
MR. SKIDMORE answered that it would increase the penalties.
2:21:46 PM
CHAIR HUGHES referred to page 2, lines 4-6, of SSSB 12 to
strangulation. She asked how it would be possible to prove that
a person becomes unconscious. She suggested that the act of
being strangled might be even scarier for the victim. She
expressed concern that if unconsciousness cannot be proven that
it might not be possible to prosecute the perpetrator.
MR. SKIDMORE emphasized that assault in the second degree, which
is normally how strangulation is prosecuted, has not been
altered or changed. He explained that assault in the second
degree indicates assault by hands or other objects that impedes
or constricts breathing or circulation. He said that SSSB 12
would add the concept of causing someone to become unconscious
by means of a dangerous instrument. A dangerous instrument
includes choking or strangulating them with one's hands.
Therefore, the lower level of conduct is already covered.
This bill would create a second tier to say if someone is
causing strangulation and the person becomes unconscious, a
higher penalty would apply. He agreed that this may not be easy
or straightforward; however, that does not mean it cannot be
done. In fact, to cause unconsciousness takes a small amount of
pressure and can happen in less than a minute. He said that he
has been a prosecutor for 20 years and during that time victims
have reported that they lost consciousness and they have
described how the world began to close in on them. Sometimes
victims describe being attacked and all of a sudden realizing
that they were in a different room, but they had no knowledge of
how that occurred. Prosecutors would need to assess the type of
detail in a case that would allow them to prove to a jury beyond
a reasonable doubt that the person lost consciousness. However,
the offender could still be convicted of assault in the second
degree, he said
CHAIR HUGHES related her understanding that this crime is not
limited to sexual assault but could also apply to violence
without sexual assault.
MR. SKIDMORE acknowledged that Section 1 of SSSB 12 does not
require the crime to be of a sexual nature and is related to
strangling another person to unconsciousness.
2:26:38 PM
CHAIR HUGHES asked whether Justin Schneider was charged with
strangulation.
MR. SKIDMORE answered yes. He said Justin Schneider was charged
with assault in the second degree and plead to that crime.
2:26:57 PM
SENATOR REINBOLD expressed concern over potential loopholes.
MR. SKIDMORE turned to the definition in AS 11.81.900(b)(14)(B),
which read, "hands or other objects when used to impede normal
breathing or circulation of blood by applying pressure on the
throat or neck or obstructing the nose or mouth;" and said this
language would make it a dangerous instrument. In further
response to Senator Reinbold, he said he has not experienced any
problem with the definition.
2:29:00 PM
SENATOR MICCICHE explained that people are concerned that Justin
Schneider was not charged with attempted murder for the
strangulation since a person who becomes unconscious is
literally seconds away from death. He asked whether intent had
been the issue.
MR. SKIDMORE answered that the crime of attempted murder
specifically requires mens rea [mental state], the conscious
objective to cause the result of killing someone. He said that
the prosecution would need to prove the conscious objective, and
in the Justin Schneider's case the prosecutors did not have any
evidence that he was attempting to kill her. However, many
instances in which a perpetrator strangles someone could result
in a murder charge.
2:30:49 PM
SENATOR MICCICHE asked for further clarification on intent when
someone is strangled to the point of unconsciousness and is
sexually assaulted.
MR. SKIDMORE answered that mens rea would apply. He referred to
page 3, lines 4-6, to paragraph (5) of SSSB 12, which
specifically uses "knowingly" and not "intent," which are very
different. A person knows whether the conduct being engaged in
could cause someone to become unconscious, which is very
different than to say the perpetrator intended to kill the
victim.
2:32:00 PM
CHAIR HUGHES asked for further clarification on the
classification of the crime for a perpetrator who causes someone
to become unconscious.
MR. SKIDMORE answered that assault in the first degree is a
class A felony.
2:32:22 PM
CHAIR HUGHES referred to page [4], lines 9-12, to the statute of
limitations. She asked him to identify the crimes that have a
ten-year statute of limitations. She noted that all other crimes
have a five-year statute of limitations. She further asked
whether this is similar to other states' statutes of limitation.
MR. SKIDMORE said he was unsure of the statute of limitations
for other states. He asked for further clarification on the
specific cite.
CHAIR HUGHES referred to page 4, lines 9-12, to Section 5 of
SSSB 12.
MR. SKIDMORE explained that under AS 12.10.110, certain crimes
do not have any statute of limitations, including murder and
certain sexual assaults. He said that this provision would add
AS 11.41.425(a)(1) or (5)-(7), assault in the third degree. He
related that a five-year statute of limitation would apply to
most offenses and a 10-year statute of limitations would apply
to other offenses. He said that another set of offenses does not
have any statute of limitation.
2:34:45 PM
CHAIR HUGHES related her understanding that the more heinous
crimes against a person would not have any statute of
limitation, that pretty serious crimes would have a 10-year
statute of limitation and less serious ones would have a 5-year
statute of limitation.
2:35:30 PM
SENATOR KIEHL offered his belief that on the whole this bill is
a good and important piece of legislation. He referred to the
harassment approach in terms of semen. He expressed concern that
some criminal situations occur, such as someone who is assaulted
and comes into contact with semen. These crimes are not
considered sexual in nature but disgusting criminal behavior. He
agreed correctional officers should be protected from criminal
behavior. He asked whether it was possible to separate out a sex
crime, in which the offender should be on a sex registry, and
the type of assaults that should result in criminal sanctions
but are not sexual predation and are assaults.
MR. SKIDMORE answered that he comes back to the specific
substance of semen that can only be created by a sexual act. He
has reviewed and grappled with statutory language to create a
distinction between these types of conduct; however, he has not
been able to appropriately separates the two crimes and still be
able to prosecute them.
2:38:37 PM
SENATOR KIEHL said that he might have drafting ideas to avoid
putting perpetrators who commit assault that is not sexual in
nature on the sex registry and still not have loopholes.
2:39:04 PM
SENATOR MICCICHE said he thinks the discretion of the courts
would separate the crimes. He offered his belief that some
criminal assaults in prisons that involve contact with semen
would be sexual assaults, but other activity might be a lesser
crime. He suggested that this would protect the discretion of
the court since it would not require being charged at the higher
level.
2:40:08 PM
CHAIR HUGHES offered her belief that the definition of mucus
would fit.
[SB 12 was held in committee.]
2:40:24 PM
At-ease.
SB 35-CRIMES;SEX CRIMES;SENTENCING; PAROLE
2:42:07 PM
CHAIR HUGHES reconvened the meeting and announced that the final
order of business would be SENATE BILL NO. 35, "An Act
eliminating marriage as a defense to certain crimes of sexual
assault; relating to enticement of a minor; relating to
harassment in the first degree; relating to harassment in the
second degree; relating to indecent viewing or production of a
picture; relating to the definition of 'sexual contact';
relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
2:42:59 PM
KEVIN CLARKSON, Attorney General Designee, Department of Law
(DOL), related that SB 35 addresses the disturbing rates of
sexual assault. He said that Alaska Native females have the
highest victimization rate of any gender or racial group,
comprising 42 percent of sexual assault victims in Alaska. He
reported sexual assault statistics, such that the median age of
victims is 19 years old, the most common age is 15 years old,
and most victims know their offenders. In fact, only 2.5 percent
of offenders were strangers, which drops to 0.3 percent for
victims under the age of 18. This means that young Alaskan women
are being assaulted by men that they knew.
2:44:38 PM
COMMISSIONER DESIGNEE CLARKSON explained that SB 35 would
address sexual offenses in Alaska. First, it would fill the gap
such as the one in the Justin Schneider case. He said this bill
is similar to SB 12, since the loopholes in the law allowed
Justin Schneider to receive punishment well below what many
public members believe he should have received.
He reviewed bulleted points in the document in members packets
titled, "SB 35 Sex Offenses Highlights," and made comments.
• Unwanted Contact with Semen - Amends the definition
of "sexual contact" to include contact with semen
making unwanted contact with semen a sex offense.
COMMISSIONER DESIGNEE CLARKSON said the new law would allow the
court to require sex offender treatment, sex offender
registration, and would increase the penalty for the first
offense from 30 days to 2-12 years.
• Strangulation Sentencing - Creates an enhanced
sentencing structure for assault in the second degree
thus increasing the sentencing range for strangulation
from 0-2 to 1-3 years.
He said that SB 35 would eliminate credit for pretrial
monitoring against the ultimate sentence. Unlike Justin
Schneider, who spent so much time on electronic monitoring pre-
trial that he did not serve prison time, this bill would
eliminate that possibility.
COMMISSIONER DESIGNEE CLARKSON said that SB 35 would strengthen
sex offense laws by increasing penalties for sexual predators
who target children.
• Sexual Abuse of a Minor Sentencing - Makes sexual
abuse of a minor in the third degree a sexual felony
when there is a 6-year age difference, thus increasing
the sentencing range from 0-2 to 2-12 years
He said the penalty is unchanged for sexual abuse of a minor if
the age difference is only 4-5 years and the victim is 13,14, or
15 years old.
• Soliciting Sex from A Minor - Deletes "online" from
the crime of "online enticement of a minor" making any
solicitation of a minor for sex a B felony.
COMMISSIONER DESIGNEE CLARKSON said that SB 35 would make
solicitation of a minor a felony in all circumstances. This bill
would make it illegal to ask a child to engage in sexual
conduct, regardless of the method of communication, whether it
is a note, a call, an in-person conversation, or any other
means. Current law only makes it crime to solicit via a
computer. This will fill in gaps, he said.
• Indecent Viewing - Makes indecent viewing or
production of a picture of a child a registerable sex
offense. This conduct will also be sentenced as a
sexual felony. Conduct involving the production of a
picture of an adult would be a registerable sex
offense but sentenced as a regular class C felony.
COMMISSIONER DESIGNEE CLARKSON offered an example of indecent
viewing, when a person places a camera in a place where the
child is unaware the viewing is occurring and does not give
consent to being photographed.
2:47:27 PM
COMMISSIONER DESIGNEE CLARKSON explained that under existing
law, someone who is required to register as a sex offender
outside of Alaska only must register in Alaska if the sex
offense matches the sex crime in Alaska. Under the bill, if the
offender is required to register in another state, the offender
is required to register in Alaska.
• Out of State Sex Offender Registration - Requires
anyone convicted of a registerable sex offense in
another state to register in Alaska if they are
present in the Alaska.
COMMISSIONER DESIGNEE CLARKSON reviewed presumptive sentencing:
• Presumptive Sex Offense Sentencing - Clarifies that
any prior felony counts as a prior felony for
presumptive sentencing purposes in sex cases. This
means prior felonies, even when they are a non-sex
felony, trigger an increased presumptive range for a
sex offense.
Additional highlights included:
• Unwanted Images of Genitalia - Makes repeatedly
sending unsolicited and unwanted images of genitalia
to another person harassment in the second degree (B
misdemeanor).
• Sex Offender Parole Eligibility - Clarifies that sex
offenders who are ineligible for good time credit are
also ineligible for discretionary parole.
• Marriage Defense to Sexual Assault - Repeals marriage
as a defense to sexual assault except in cases where
there is consent and the conduct is illegal due to the
nature of the relationship but-for the marriage
(probation officer/probationer, peace officer/person
in custody, DJJ officer/person 18 or 19 an under the
jurisdiction of the Division of Juvenile Justice).
COMMISSIONER DESIGNEE CLARKSON said that the governor's crime
package would reset the stage. The state needs to better its
efforts to protect Alaska's women and children from sexual
assault.
2:48:32 PM
AMANDA PRICE, Commissioner Designee, Department of Public
Safety, Anchorage, testified in support of SB 35. She said that
this is a difficult conversation. She thanked the committee and
the public for engaging in the process. She said that the
culture that surrounds sexual violence in the state needs to
change. She said that this sends a clear message that the state
is changing the culture.
COMMISSIONER DESIGNEE PRICE said that Alaska has unacceptably
high rates of sexual violence. Alaska's rates far exceed rates
in other states. The crime of sexual violence does not know any
boundary. Certain races are disproportionately impacted;
however, no socioeconomic group, or any ethnicity is not
impacted by sexual violence. This bill would strengthen public
safety in Alaska by closing loopholes, but it also ensures that
Alaska is not a state where registered sex offenders can escape
the knowledge of their crimes by moving to Alaska.
2:51:00 PM
COMMISSIONER DESIGNEE PRICE related statistics, stating that the
department receives and fields between 8-10 calls per month from
individuals inquiring if they would need to register as a sex
offender if they move to Alaska. She said that data is critical
for members to understand. She interpreted the data to mean that
registered sex offenders were actively looking for a state that
they may not need to register.
COMMISSIONER DESIGNEE PRICE said the bill identifies ways
victims can be hurt today and it criminalizes that conduct, for
example, unsolicited and unwanted photographs of genitalia. SB
35 gives victims a mechanism to engage with law enforcement and
the state the opportunity to provide protection. She said that
the statistics of crime against children show how these crimes
devastate our communities. She said that this bill would enhance
protections for Alaskans by giving law enforcement tools
necessary to intervene, support, and improve public safety
through its communities. For example, SB 35 would introduce a
new crime of enticement of a minor. This responds to the reality
that Alaskan children are enticed by predators in all arenas,
not just online. She stated that this language will allow law
enforcement to intervene before a child is hurt. The Department
of Public Safety (DPS) emphatically supports SB 35. The
department acknowledges the governor's commitment to respond to
and prevent crimes of sexual assault and abuse, holding those
offenders accountable and strongly believes that this bill will
support and improve public safety.
2:53:53 PM
NANCY DAHLSTROM, Commissioner Designee, Department of
Corrections, Anchorage, introduced herself as a member of the
public safety team.
2:54:15 PM
SENATOR REINBOLD said that she supports this bill. She said she
did not support Walt Monegan, the former DPS commissioner,
during his confirmation because he indicated only one percent of
rapists in Alaska are convicted, but he did not offer any
solutions. She said that she asked some victims and prosecutors
the reasons they did not pursue their cases. She recalled that
they expressed concern that graphic photographs would be shown
in the courtroom. She wanted to make sure women can press
charges and be protected. She raised the issue of penalties for
police officers engaging in sexual contact with persons in their
custody, which was raised earlier, which is a big issue in her
community. She expressed concern that cases are dropped due to a
lack of integrity in the state's crime lab and referenced the
scathing audit of the lab. She said she did not understand why
the sexual assault/rape kits were not being processed.
2:57:18 PM
SENATOR REINBOLD expressed concern that women have no place to
escape due to an insufficient number of shelters. She offered
her interest in strengthening sex trafficking laws and her
willingness to work with agencies, nonprofits, and the public on
these issues.
2:58:39 PM
SENATOR MICCICHE asked Mr. Clarkson for clarification on
underage minors not giving consent for photos. He offered his
belief that underage minors cannot give consent.
2:59:19 PM
MR. SKIDMORE answered that the crime of indecent viewing sets up
conditions for ages of consent. This language states that a
person under the age of 16 must have parental consent but the
person over the age of 13 must also consent. He explained that
there is an overlap of ages 13-15, in which both the parent and
child must consent. He said that parents must consent to
photographs for those under the age of 13. He acknowledged that
for the crime of sexual abuse of a minor, people under a certain
age cannot consent.
3:00:37 PM
SENATOR MICCICHE remarked that he needs more time to discuss
this because it seemed troubling.
CHAIR HUGHES agreed it seemed troubling for a parent to give
consent for a 13-year-old to have that type of photography done.
She said it seems as though the parent should be charged with
some crime.
3:01:09 PM
SENATOR MICCICHE asked whether the out-of-state sex registry is
for a new entrant or if it could be retroactive.
MR. SKIDMORE offered to provide more detail during the sectional
analysis; however, it would apply to people coming forward, but
it would not be retroactive.
[SB 35 was held in committee.]
CHAIR HUGHES reviewed upcoming committee announcements.
3:02:17 PM
There being no further business to come before the
committee, Chair Hughes adjourned the Senate Judiciary
Standing Committee meeting at 3:02 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJUD Agenda 2.13.19.pdf |
SJUD 2/13/2019 1:30:00 PM |
|
| SB 12 - Version M.PDF |
SJUD 2/13/2019 1:30:00 PM |
|
| SB 12 Sponsor Statement.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB 12 Sectional Summary Version M.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB12 Supporting Documents DOL Press Release 09.21.2018.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB12 Supporting Documents KTUU Article.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB12 Supporting Documents KTVA Article.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB12 Supporting Documents Washington Post Article.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB12-Fiscal Note-DHSS-PS.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB12-Fiscal Note-DOA-OPA.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB12-Fiscal Note-JUD-ACS.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB12-Fiscal Note-DOA-PDA.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB12-Fiscal Note-LAW-CRIM.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB35 - Version A.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 35 Transmittal Letter.pdf |
SFIN 5/4/2019 9:00:00 AM SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 35 Highlights.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 35 - Sex Offenses Sectional.pdf |
SFIN 5/4/2019 9:00:00 AM SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-DOC-PopMgmt-IDO-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-DOC-PopMgmt-ParoleBd-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-DPS-CJISP-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-HSS-PS-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-Law-CrimDiv-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-DOC-PopMgmt-IDO-FN.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 35 |
| SB35-DOC-PopMgmt-ParoleBd-FN.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 35 |
| SB35-DPS-CJISP-FN.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 35 |
| SB35-HSS-PS-FN.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 35 |
| SB35-Law-CrimDiv-FN.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 35 |
| SB 12 Version U.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB 12 Sponsor Statement v. U.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |
| SB 12 Sectional Summary Version U.pdf |
SJUD 2/13/2019 1:30:00 PM |
SB 12 |