Legislature(2021 - 2022)BUTROVICH 205
03/11/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB187 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 187 | TELECONFERENCED | |
| += | SB 189 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 11, 2022
1:34 p.m.
MEMBERS PRESENT
Senator Roger Holland, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 187
"An Act relating to criminal law and procedure; relating to the
crime of harassment; relating to the duty to register as a sex
offender; amending the definition of 'sex offense'; relating to
lifetime revocation of a teaching certificate for certain
offenses; relating to the definition of 'domestic violence';
relating to multidisciplinary child protection teams; relating
to arrest authority for pretrial services officers and probation
officers; and providing for an effective date."
- MOVED CSSB 187(JUD) OUT OF COMMITTEE
SENATE BILL NO. 189
"An Act relating to sex trafficking; establishing the crime of
patron of a victim of sex trafficking; relating to the crime of
human trafficking; relating to sentencing for sex trafficking
and patron of a victim of sex trafficking; establishing the
process for a vacatur of judgment for a conviction of
prostitution; and providing for an effective date."
- RESCHEDULED TO 3/14/2022
PREVIOUS COMMITTEE ACTION
BILL: SB 187
SHORT TITLE: HARASSMENT; SEX OFFENDERS & OFFENSES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/15/22 (S) READ THE FIRST TIME - REFERRALS
02/15/22 (S) JUD, FIN
02/23/22 (S) JUD AT 1:30 PM BUTROVICH 205
02/23/22 (S) Heard & Held
02/23/22 (S) MINUTE(JUD)
02/25/22 (S) JUD AT 1:30 PM BUTROVICH 205
02/25/22 (S) Heard & Held
02/25/22 (S) MINUTE(JUD)
03/02/22 (S) JUD AT 1:30 PM BUTROVICH 205
03/02/22 (S) Scheduled but Not Heard
03/04/22 (S) JUD AT 1:30 PM BUTROVICH 205
03/04/22 (S) Heard & Held
03/04/22 (S) MINUTE(JUD)
03/07/22 (S) JUD AT 1:30 PM BUTROVICH 205
03/07/22 (S) Heard & Held
03/07/22 (S) MINUTE(JUD)
03/09/22 (S) JUD AT 1:30 PM BUTROVICH 205
03/09/22 (S) Heard & Held
03/09/22 (S) MINUTE(JUD)
03/11/22 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
KACI SCHROEDER, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered legal questions and explained
Amendment 1 during the hearing on SB 187.
JOHN SKIDMORE, Deputy Attorney General
Office of the Attorney General
Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered legal questions during the hearing
on SB 187.
RENEE MCFARLAND, Deputy Public Defender
Appellate Division
Public Defender Agency
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions on the Alaska Sex
Offender Registry during the hearing on SB 187.
LISA PURINTON, Chief
Criminal Records and Identification Bureau
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Answered questions on the Alaska Sex
Offender Registry during the hearing on SB 187.
KELLY HOWELL, Special Assistant
Office of the Commissioner
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Answered questions on sex offender
registration requirements during the hearing on SB 187.
ACTION NARRATIVE
1:34:55 PM
CHAIR ROGER HOLLAND called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Senators Myers, Hughes,
Shower, Kiehl, and Chair Holland were present at the call to
order.
SB 187-HARASSMENT; SEX OFFENDERS & OFFENSES
1:35:27 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 187
"An Act relating to criminal law and procedure; relating to the
crime of harassment; relating to the duty to register as a sex
offender; amending the definition of 'sex offense'; relating to
lifetime revocation of a teaching certificate for certain
offenses; relating to the definition of 'domestic violence';
relating to multidisciplinary child protection teams; relating
to arrest authority for pretrial services officers and probation
officers; and providing for an effective date."
He stated that this was the sixth hearing, a committee
substitute (CS) was adopted, and there were eight amendments for
the committee to consider.
1:35:46 PM
CHAIR HOLLAND moved to adopt Amendment 1, work order 32-
GS2031\G.8. He noted the Department of Law requested this
change.
32-GS2031\G.8
Radford
3/10/22
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR HOLLAND
TO: CSSB 187(JUD), Draft Version "G"
Page 4, lines 15 - 16:
Delete ", including inaction,"
Page 4, line 17, following "resistance":
Insert "and may include inaction"
SENATOR SHOWER objected for discussion purposes.
1:36:18 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, Juneau, Alaska,
explained that Amendment 1 would allow the prosecutor to
consider inaction by the victim in the totality of the
circumstances analysis in sexual assault cases. Although
inaction doesn't mean the victim did not consent, it can be
included when the prosecutor evaluates whether the person
consented.
1:36:52 PM
SENATOR HUGHES asked if inaction meant physical inaction, that
the victim was not moving.
MS. SCHROEDER answered yes.
1:37:06 PM
SENATOR KIEHL asked if Amendment 1 was necessary to address the
concern that the language in Version G, Sec. 4 "including
inaction" was phrased in a manner that could be misunderstood to
mean that inaction in sexual assault cases always means a lack
of consent.
MS. SCHROEDER answered yes.
1:37:31 PM
SENATOR SHOWER removed his objection.
1:37:36 PM
CHAIR HOLLAND found no further objection, and Amendment 1 was
adopted.
1:37:52 PM
SENATOR SHOWER moved to adopt Amendment 2, work order 32-
GS2031\G.4.
32-GS2031\G.4
Radford
3/10/22
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 187(JUD), Draft Version "G"
Page 6, line 15:
Delete "or annoy"
Page 6, line 18:
Delete "or annoy"
Page 6, line 21:
Delete "or annoy"
Page 6, line 23:
Delete "or annoy"
Page 6, line 28:
Delete "or annoy"
Page 7, lines 5 - 6:
Delete "or annoy"
CHAIR HOLLAND objected for discussion purposes.
SENATOR SHOWER explained Amendment 2 would delete the language
"or annoy" because in this context, "harass or annoy" seemed
interchangeable. He stated his preference for "harass" because
he was concerned someone may use the word "annoy" in a way that
the committee did not intend.
1:38:42 PM
SENATOR HUGHES asked whether "harass" or "harassment" was
defined in statute. She related that annoying a child or
harassing them seemed different, that harassing a person seemed
more intense.
MS. SCHROEDER answered that "harass" or "harassment" are not
defined in statute. She stated that Webster's Third New
International Dictionary definitions for "harass" and "annoy"
refer to one another, although each word has multiple meanings.
The Department of Law does not believe that Amendment 2 would
have a significant legal impact, so the department is neutral on
Amendment 2.
1:39:44 PM
CHAIR HOLLAND removed his objection.
CHAIR HOLLAND found no further objection, and Amendment 2 was
adopted.
1:40:10 PM
SENATOR SHOWER moved to adopt Amendment 3, work order 32-
GS2031\G.5.
32-GS2031\G.5
Radford
3/10/22
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 187(JUD), Draft Version "G"
Page 8, lines 10 - 11:
Delete "and any temporary lodging used by the sex
offender or child kidnapper"
CHAIR HOLLAND objected for discussion purposes.
SENATOR SHOWER remarked that he introduced Amendment 3 for the
committee to consider and discuss, but he may make changes or
withdraw it. He stated that he previously held discussions with
the Department of Law on travel. Current statutes require sex
offenders traveling for seven or more days to report their
travel. The bill states that if the sex offender can't report in
a timely manner, the determination on whether the excuse was
reasonable is discretionary for the parole officer or other
department staff. Amendment 3 would remove the language "and any
temporary lodging used by the sex offender or child kidnapper."
Although numerous places in statute allow judgments or
determinations, this might need to be tightened up a bit. He
stated that he received integration training that other members
may have also received. This training is designed to assist
prisoners in integrating into society after serving their
sentence, but it is nearly impossible for some inmates to do so.
He wondered if this amendment would make it difficult for
someone to have the freedom to live and set them up for failure
by piling on more charges. He asked if anyone shared these
concerns.
MS. SCHROEDER deferred to Mr. Skidmore.
1:42:36 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Criminal Division, Department of Law, Anchorage,
Alaska, noted that his initial comments on this bill may have
created some confusion about this section. SB 187 would add a
new subsection related to travel requirements, but this
provision relates to the initial sex offender registration.
Under the National Sex Offender Registry requirements, temporary
lodging is not meant to apply to travel. Instead, those
requirements were meant to apply to sex offenders with a primary
residence and a second temporary lodging. He surmised that their
temporary lodging might be where they often travel to commit sex
crimes away from home. He highlighted that the federal
guidelines encourage states to avoid providing sex offenders
with an opportunity to stay in temporary lodging where they can
commit sex crimes while traveling. Those crimes would likely
increase if they were not required to report their whereabouts.
Since requirements for sex offender registration do not apply to
temporary lodging, so this provision in SB 187 was designed to
capture the temporary lodging.
MR. SKIDMORE related that the travel component applies to
circumstances when the sex offender travels for seven or more
days from their primary residence. In those instances, the sex
offender must provide notice that they are traveling and their
location while traveling. The affirmative defense for failure to
register as a sex offender in AS 11.56.840(b) allows for
unforeseen circumstances outside the person's control. It
provides the timeframe required to report their travel to the
Department of Public Safety. For example, suppose the sex
offender was traveling, but the hotel they planned to stay at
was full. So long as the sex offender reports their revised
travel plans to the Department of Public Safety, they have met
their obligation and have committed no crime.
1:46:03 PM
SENATOR SHOWER remarked that Mr. Skidmore cleared up any
confusion. He wondered if the committee was interested in
clarifying this language so it is not left up to circumstances,
otherwise he would withdraw Amendment 3. He indicated there was
no time limit on the affirmative defense for reporting and that
it could be subjective, such as within 6, 24, or 48 hours.
SENATOR HUGHES asked if he was suggesting putting in a time
limit for the number of hours or days the sex offender would be
required to report.
1:47:28 PM
SENATOR SHOWER indicated he did not have time to prepare an
amendment to address this, so he was using Amendment 3 as a
vehicle for discussion purposes. He suggested that the committee
could conceptually amend it to address the subjective reporting
criteria. He expressed concern that since the timeframe is not
identified, a sex offender attempting to report the information
timely could be dinged if the department decided it was not
reported quickly enough.
1:47:54 PM
SENATOR HUGHES offered her belief that if someone has committed
an offense that requires them to be on a sex offender registry,
it is the price they must pay. She emphasized the importance of
knowing the location of sex offenders. She related a personal
experience when she rented a place and was informed that the
person next door was on the registry. Suppose the sex offender
considered that residence their temporary residence, so they did
not report it, but they stayed there for two or three years. She
related her understanding that the law provides allowances for
unforeseen circumstances to be reported. She asked for Mr.
Skidmore's view on adding a specific timeframe for reporting.
SENATOR SHOWER clarified that sex offenders have a requirement
to report for seven or more days for travel. He said his concern
relates to travel since Mr. Skidmore answered the other
questions. He agreed with Senator Hughes that this is the price
they must pay, but he believed that the criteria should have a
timeframe so it won't be subjective.
1:49:34 PM
SENATOR HUGHES pointed out that Mr. Skidmore advised that this
provision relates to the initial sex offender registration. She
wondered if the committee should consider Amendment 3 first
since it does not pertain to travel. She questioned whether
Senator Shower's concern would be an amendment to Amendment 3.
1:50:09 PM
CHAIR HOLLAND related his understanding that Senator Shower's
intention was to withdraw Amendment 3.
SENATOR SHOWER reiterated that Amendment 3 was just for
discussion purposes.
CHAIR HOLLAND related his understanding that the language
related to temporary lodging was rooted in federal policy.
1:50:36 PM
MR. SKIDMORE responded that the language requiring federal
registration was in federal law and in the guidance provided by
the Department of Justice. He noted that the sheet of
information he previously referred to contains the federal
guidance related to the meaning of the term "temporary lodging."
1:51:03 PM
SENATOR SHOWER offered to withdraw Amendment 3 and make a
conceptual amendment for the time limit later.
1:51:14 PM
CHAIR HOLLAND withdrew his objection.
1:51:18 PM
SENATOR SHOWER withdrew Amendment 3.
1:51:41 PM
SENATOR KIEHL moved to adopt Amendment 4, work order 32-
GS2031\G.1.
32-GS2031\G.1
Radford
3/10/22
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 187(JUD), Draft Version "G"
Page 15, lines 20 - 27:
Delete all material.
Renumber the following bill sections accordingly.
Page 16, line 8:
Delete "sec. 22"
Insert "sec. 21"
CHAIR HOLLAND objected for discussion purposes.
1:51:47 PM
SENATOR KIEHL explained that Amendment 4 would remove Section 21
related to registering as a sex offender for crimes under AS
12.63. As previously discussed, this relates to sex offender
crimes that are not registerable sex offenses in Alaska.
Although that requirement exists today, this section would make
it retroactive. He recalled the previous committee discussion
with the Department of Law about ex post facto. He related that
Senator Hughes stated that being on a sex offender registry is
part of the price a sex offender pays for their crime, as part
of the criminal punishment. However, the Alaska and US
constitutions do not allow for ex post facto punishment. As
previously discussed, the Alaska Supreme Court ruled that sex
offender registration was a different matter, that it was part
punishment and part regulation. The state doesn't have a
regulatory interest in enforcing sex offender crimes that are
not registerable sex offenses in Alaska. He stated that
instituting this punishment makes it unconstitutional.
1:53:56 PM
CHAIR HOLLAND asked Mr. Skidmore for the department's position
on Amendment 4.
1:54:03 PM
MR. SKIDMORE referred to the requirement to register in Alaska
based on a sex crime committed in another state. When this was
originally proposed, it was not simply to address conduct which
the sex offender committed that did not require the offender to
register on the Alaska Sex Offender Registry. Prior to enacting
House Bill 49 in 2019, the state addressed these issues by
saying that the sex offender only had to register in Alaska if
the crime they committed had similar elements to the crime that
Alaska requires sex offenders to register for. The problem that
arose stemmed from the analysis of whether the elements were the
same. The elements could be different even if the conduct that
occurred would have required them to register in Alaska.
MR. SKIDMORE characterized it as a complex legal problem. In
some instances, Alaska may not have considered whether to
require registration for a crime that the sex offender committed
in another state. This led to sex offenders contacting Alaska to
determine whether they would need to register in Alaska as sex
offenders if they moved here. The Department of Law found that
Alaska was attracting sex offenders from other states who were
avoiding registration requirements.
1:56:04 PM
MR.SKIDMORE stated that the law now states that if a sex
offender was convicted of a crime that requires registry in
another state, they must register on the Alaska Sex Offender
Registry. This provides clear guidance to any sex offender that
Alaska would require registration and ensures that Alaska is not
creating a place that sex offenders would want to move to in
order to avoid registration.
1:56:30 PM
MR. SKIDMORE agreed the courts had deemed some portion of
Alaska's registration as punishment. However, in a more recent
decision in 2019, the Alaska Supreme Court found that if a sex
offender must register in another state, that person can be
required to register in Alaska. Further, those circumstances are
not considered punitive but regulatory. First, the state has a
legitimate public safety concern in requiring out-of-state
offenders who now reside in the state to register. Second, the
court found no concern that the sex offender's conduct resulted
from a criminal conviction. This means it is not a question of
whether the state is imposing new punishments since the sex
offender was convicted, and Alaska requires them to register.
Third, the court said that being registered in multiple
jurisdictions for the same offense is not like assessing
multiple money judgments for the same conduct.
MR. SKIDMORE explained that the court referred to an argument
that a defendant made that somehow this violated ex post facto,
that the person cannot be punished after the fact. Again, in
2019, the court decided the requirement to register out-of-state
offenders in Alaska does not violate ex post facto. The
department believes there is an appropriate regulatory and
policy determination that this body can make to avoid making
Alaska a haven for sex offenders. Registration allows the state
to know where the sex offender resides to ensure that they are
not living next to a school, youth facility, playground, or
elsewhere that children might frequent.
2:00:18 PM
SENATOR MYERS wondered why this bill does not have any provision
to make those crimes registerable in Alaska since the state is
concerned about registering sex offenders in Alaska.
MR. SKIDMORE responded that to do so would require an exhaustive
review of every other state's registerable crimes on an ongoing
basis. Instead of tracking what other states are doing, this
approach says that if a sex offender committed a crime that
requires them to register in another state, the offender must
register in Alaska, which many other states have done. He
highlighted that it is a separate policy call to decide whether
the state wants to criminalize the same conduct that required
the sex offender to register in their state.
2:01:45 PM
SENATOR HUGHES acknowledged that it was helpful to understand
that the 2019 Alaska Supreme Court case made the determination
that it was a regulatory rather than punitive action. She asked
whether a regulatory action would be knowledge that the sex
offender was following the rules, for example, not living near a
school.
MR. SKIDMORE answered yes.
SENATOR HUGHES asked whether other states that have enacted
similar laws have seen a reduction in cases or if the sex
offenses seem to be holding steady.
MR. SKIDMORE explained the difficulty was that most other states
don't find registration punitive in any way, shape, or form. He
highlighted that the US Supreme Court found in 1997, 2001, and
2003, in Kansas v. Hendricks, Ceiling v. Young, and Smith v.
Doe, respectively, that the sex offender registries were not
punitive and only regulatory. In 2008, the Alaska Supreme Court
found that there was a punitive aspect. The court expressly
looked at the provision when Alaska's sex offender registry was
enacted in 1994, requiring sex offenders to register for
offenses they were convicted of before the enactment of the
registry. In that circumstance, and that circumstance only, the
court found it was punitive. He highlighted that the 2019
decision distinguishes between those two circumstances: the
requirement to register from out-of-state convictions and the
ramifications of the 2008 case. Although he was not completely
certain of other states' actions, he was unaware that any state
concluded it was punitive and would violate ex post facto
considerations.
2:04:19 PM
SENATOR SHOWER asked how many people this would affect. He
wondered whether the committee could hear from the public
defender to gain another perspective.
MR. SKIDMORE answered that he does not have any figures, but he
would check with the Department of Public Safety (DPS). He noted
that he was unsure whether the department was asked to compile
those figures.
2:04:55 PM
CHAIR HOLLAND asked Ms. McFarland to weigh in.
2:05:07 PM
RENEE MCFARLAND, Deputy Public Defender, Appellate Division,
Public Defender Agency, Department of Administration, Anchorage,
Alaska, said she had not had an opportunity to thoroughly review
the amendment. She offered her view that Mr. Skidmore correctly
paraphrased the court's decision in State v. Doe. However, she
said she hadn't studied that decision recently, so she was
hesitant to fully state the agency's position without reviewing
it more closely. She agreed that Alaska found registration to be
punitive in a way that other courts have not. She was unsure
whether the state was unique in its findings. She noted that
some states require registration for acts that Alaska does not,
including public urination and other misdemeanor offenses. She
stated that it raises some concerns given the effect the sex
offender registry can have on people reintegrating into society
for non-criminal matters. She noted that nothing Mr. Skidmore
stated raised any disagreements, but she offered to report any
additional concerns to the committee.
2:06:57 PM
SENATOR SHOWER asked how many people this amendment would
affect.
2:07:24 PM
LISA PURINTON, Chief, Criminal Records and Identification
Bureau, Department of Public Safety (DPS), Anchorage, Alaska,
responded that she did not have those figures. She offered to
compile the information and report back to the committee. She
stated that the department has consistently added two new
registrants for out-of-state offenses each week.
2:07:53 PM
SENATOR MYERS recalled that the registry requires sex offenders
to register for a certain period of time. He wondered if this
relates only to people who moved to the state prior to 2019 and
if this issue would resolve itself over time.
MR. SKIDMORE answered that he could not provide a definitive
answer on the length of time this would take to resolve itself.
He recalled that the federal guidelines have three tiers. He was
unsure but he believed some sex offenders had to register for
life, some for 15 years, and others for 5 years.
2:09:11 PM
SENATOR HUGHES recalled that over 100 sex offenders moved to
Alaska, potentially to avoid registration, and that sex
offenders were calling to find out if they needed to register in
Alaska. She wondered if the department has seen more offenders
moving to Alaska because they don't have to register here.
MS. PURINTON explained the process. When sex offenders who are
required to register in another state move to Alaska, the
department first researches the criminal history records to
determine the conduct required for the registration. As Mr.
Skidmore indicated, the Department of Law conducts a legal
analysis on the elements of the crime comparable to state law.
Since House Bill 49 passed, requiring sex offenders moving to
Alaska to register, a fair number of them were deemed not
registerable in Alaska. Thus, it could be challenging to provide
specific numbers.
2:11:19 PM
SENATOR MYERS asked if the bill passes, whether some sex
offenders in Alaska who are required to register would also need
to move from their current location, thereby losing their
housing.
MR. SKIDMORE answered he was unaware of any provision that would
cause someone to lose their housing, but the sex offender must
register where they live.
2:11:57 PM
SENATOR MYERS recalled that sex offenders could not live near
certain locations, including near a school. He wondered if a sex
offender would need to move now if they had moved to Alaska in
2015, found a house or apartment near a school, but is now
required to register as a sex offender.
MR. SKIDMORE deferred to Kelly Howell.
2:13:05 PM
KELLY HOWELL, Special Assistant, Office of the Commissioner,
Department of Public Safety, Anchorage, Alaska, stated that
current law for sex offender registration does not have any
proximity limitations on where sex offenders may reside unless
the Department of Corrections imposes limitations on the sex
offenders.
2:13:36 PM
CHAIR HOLLAND asked Ms. Howell to confirm that she did not
envision that someone would be forced to move out of their house
because now they have to register.
MS. HOWELL answered that she did not envision that circumstance.
2:13:50 PM
SENATOR HUGHES asked for another example since the state does
not have any regulatory restrictions on sex offenders related to
their proximity to a school.
MR. SKIDMORE responded that there are many regulatory reasons,
including the one she described, when people are at a property
near where any sex offender resides. He explained that the
regulatory purpose would not be to punish the sex offender but
to identify the sex offender's residence to allow citizens to
make informed choices about the activities to engage in and the
risks they may take by going to a park, school, or recreational
facility in the near proximity to a sex offender's residence.
2:15:31 PM
SENATOR KIEHL stated that he appreciated that no governmental
requirement would force someone to move out of their house, but
their landlord might require them to do so. He reminded members
that some offenses that are not considered criminal behavior in
Alaska are registerable elsewhere. Other states have different
definitions of family relationships that are not allowed to have
sexual relations or relate to age gaps. Thus, some situations
would require a person to register in another state for things
that are not crimes in Alaska. Therefore, requiring them to
register in Alaska isn't reasonable. The Alaska Supreme Court
provides a parallel analysis of punishment and regulation. The
2019 case related to a sexual assault in the first-degree case
is not what Amendment 4 addresses. Finally, the process for sex
offenders that the Alaska Supreme Court required still doesn't
exist.
SENATOR KIEHL offered his belief that this was an overbroad
situation with an element of punishment for something that
Alaska does not regulate. He highlighted that a sex offender
could be convicted of a sex offense that required registration
in the Lower 48 state where they reside, but that crime could be
one that was not considered a crime or did not require
registration in Alaska. Further, House Bill 49 has yet to be
tested in court. He surmised it would probably stand up in court
unless the legislature adds in retroactivity, creating an ex
post facto element.
2:19:07 PM
CHAIR HOLLAND maintained his objection.
2:19:15 PM
A roll call vote was taken. Senators Myers and Kiehl voted in
favor of Amendment 4, and Senators Hughes, Shower, and Holland
voted against it. Therefore, Amendment 4 failed on a 2:3 vote.
CHAIR HOLLAND stated that the motion to adopt Amendment 4 failed
with 2 yeas and 3 nays.
2:19:55 PM
SENATOR SHOWER asked for confirmation that the Department of Law
had not provided a means for sex offenders to be removed from
the Alaska Sex Offender Registry; if not, he said that would not
sit well with him.
MR. SKIDMORE answered that Senator Kiehl was correct that the
statutes have not been amended, but he may not be aware of
ongoing litigation on the matter. Still, at least five sex
offenders have been removed from the registry because they were
found not to be dangerous. He highlighted that additional
litigation is filed every day.
SENATOR SHOWER asked if the only way sex offenders can be
removed from the registry is through litigation.
MR. SKIDMORE answered that the legislature has not chosen to
address the process of removing sex offenders from the registry,
so the courts are left to decide on that process.
2:21:20 PM
SENATOR KIEHL moved to adopt Amendment 5, work order 32-
GS2031\G.9.
32-GS2031\G.9
Radford
3/10/22
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 187(JUD), Draft Version "G"
Page 4, lines 18 - 19:
Delete "or the manner of dress of"
Insert "between the defendant and"
CHAIR HOLLAND objected for discussion purposes.
2:21:26 PM
SENATOR KIEHL explained that Amendment 5 would provide new
language related to whether there was a lack of consent by the
victim. The bill reads, "a current or previous dating, social,
or sexual relationship or the manner of dress of the person
involved with the defendant and the conduct at issue may not by
itself constitute consent;" He emphasized that he had a strong
reaction to including "manner of dress" in the bill. He recalled
discussions with the Department of Law about prohibiting "manner
of dress" from being one of those elements. The department
argued that there might be rare instances where it would be
appropriate to consider as part of the totality of the
circumstances. The department also expressed concern that if the
legislature prohibits considering it, the courts may strike this
provision as overbroad. He said he did not want to risk that
happening.
2:22:45 PM
SENATOR KIEHL explained that Amendment 5 would delete any
mention of the "manner of dress," so the law would not
specifically allow "manner of dress" as a factor that could be
considered in sexual assault cases. He surmised that juries
would reject most arguments about the "manner of dress."
However, this amendment would allow for the rare situation where
a defense attorney made a powerful case. He stated that deleting
"manner of dress" does not give special permission to count it
as one of the factors in every instance but using "manner of
dress" wouldn't be prohibited.
2:23:43 PM
MS. SCHROEDER agreed with Senator Kiehl's characterization of
the committee's robust discussion about the "manner of dress."
She said she hoped the committee would take away from that
discussion that the legislature could decide whether to include
"manner of dress" in the totality of the circumstances. She
highlighted that the Department of Law cautioned against an
absolute bar to allow that language to be used for the rare
instances where it may be relevant to consider "manner of dress"
in the totality of the circumstances when deciding whether the
defendant acted recklessly.
2:24:39 PM
CHAIR HOLLAND removed his objection.
2:24:45 PM
SENATOR HUGHES objected to ask if the effect of Amendment 5
would be that the "manner of dress" could not be considered as
one of the multiple factors in a case.
MS. SCHROEDER answered no. She elaborated that the language
previously drafted would have barred it from ever being used.
The department cautioned against that language at the last
hearing, and [the committee substitute (CS), Version G, changed
that language]. If the committee were to adopt Amendment 5, the
law would remain as it is in current law, and it will be up to
the defendant to argue the relevance.
SENATOR HUGHES said she was confused. She asked if Amendment 5
passes, if the clothing worn by the victim could be considered
in the totality of the circumstances.
MS. SCHROEDER answered that the defendant could make an argument
in the totality of the circumstances analysis.
SENATOR HUGHES offered her belief that it wouldn't matter since
the defendant could still make the argument related to the
"manner of dress."
MS. SCHROEDER replied that the language in Version G is softened
and is not an absolute bar. She reiterated that it was up to the
legislature to decide. She offered her view that it may not make
a big difference in implementation.
2:26:29 PM
SENATOR HUGHES asked if she heard her correctly that if the
committee adopted Amendment 5, the "manner of dress" could still
be considered.
MS. SCHROEDER clarified that Version G states that the "manner
of dress" by itself may not be considered, but it could be
considered in the totality of the analysis of the circumstances,
and the defendant could argue relevance. If it is removed, it
would likely be the state of the law.
SENATOR HUGHES removed her objection.
CHAIR HOLLAND heard no further objection, and Amendment 5 was
adopted.
2:27:33 PM
SENATOR KIEHL moved to adopt Amendment 6, work order 32-
GS2031\G.3.
32-GS2031\G.3
Radford
3/10/22
AMENDMENT 6
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 187(JUD), Draft Version "G"
Page 4, line 11, following "person":
Insert "; in this paragraph, "sexual contact"
does not include an offender knowingly causing a
person to come into contact with semen"
Page 6, line 3:
Delete "AS 11.41.434 - 11.41.440,"
Insert "AS 11.41.410 - 11.41.440,"
Page 6, line 5, following "to [":
Insert "AS 11.41.434 - 11.41.440,"
Page 6, line 7:
Delete "[SEMEN,]"
Insert "semen,"
CHAIR HOLLAND objected for discussion purposes.
2:27:41 PM
SENATOR KIEHL explained that the effect of Amendment 6 would be
that any inappropriate contact with semen that was not of a
sexual nature would be retained as a class A misdemeanor. He
related that several years ago, the committee dealt with a
loophole in criminal law in the Schneider case by classifying a
sex act involving exposure to semen and force as a class B
felony. Amendment 6 would not change the penalty for that
criminal behavior. Further, the crime of contact with semen in a
sexual act where the victim is unconscious or unaware is
classified as sexual assault in the third degree, a class C
felony, and contact with semen in a sexual act without consent
is classified as sexual assault in the third degree, a class C
felony. If someone masturbates in someone else's presence who
does not wish to see it, that is classified as indecent exposure
in the first degree, a class C felony.
SENATOR KIEHL stated the intention was not to leave any
loopholes for sexualized acts.
2:30:05 PM
SENATOR KIEHL stated that Amendment 6 would classify contact
with semen in other situations separated from the sexual act,
such as a dirty rag being thrown or fluids being flung, as
harassment in the first degree, a class A misdemeanor. He
related that it would be similar to other class A misdemeanor
crimes, such as contact with feces or urine, when the contact
with semen is separated from a sexual act.
MR. SKIDMORE responded that Senator Kiehl's amendment relates to
classification, not punishment. He said this does not propose
legalizing any conduct but relates to how to punish offenders.
Members must decide whether contact with semen should be
classified as a sexual assault in the third degree, which is a
class C felony punishable by 2-12 years on a first offense as SB
187 classifies it; or if it should be reclassified as
harassment, a class A misdemeanor with a penalty of 0-1 years.
MR. SKIDMORE clarified that contact with semen as it applies in
SB 187 would fall under the new definition of consent. If there
was contact with semen and force or the threat of force was
present, it would be classified at the higher level of offense,
sexual assault in the second degree. Senator Kiehl's amendment
would not change that classification or penalty since it would
only adjust where it falls in the new definition of consent in
SB 187.
2:32:48 PM
MR. SKIDMORE offered his view that the rationale behind that
concept relates to some incarcerated offenders who want to annoy
or harass correctional officers. He noted the list of body
substances that are secretions, which are flung or thrown at the
officers. He highlighted that was why it was initially placed in
the harassment offenses. Amendment 6 attempts to say that it
should not be classified as a sex offense. If the committee were
to agree, that crime would remain in the harassment statutes as
a class A misdemeanor subject to 0-1 year in jail.
2:33:44 PM
SENATOR HUGHES related her understanding that if force were
involved, it would change the crime. For example, suppose an
inmate flung semen, a fight occurred, and others had contact
with the semen. She said she did not envision that the parties
involved would be charged with a sex offense. She asked whether
that would be separated.
MR. SKIDMORE answered yes. He explained that the force he was
speaking about must be force used to overcome resistance to
sexual contact, such as the contact with semen. For example, if
it were a situation in which one person was restraining an
individual, and someone else was forcibly putting the substance
on them, it would be deemed a sex offense.
2:35:04 PM
SENATOR MYERS asked how the class C felony and class A
misdemeanor crimes affect the requirement to be registered on
the Sex Offender Registry.
MR. SKIDMORE stated that the registry for sexual assault in the
third degree is 15 years, and someone convicted of harassment
would not need to be registered.
2:36:16 PM
CHAIR HOLLAND removed his objection; heard no further objection,
and Amendment 6 was adopted.
CHAIR HOLLAND stated he would not offer Amendment 7.
2:37:12 PM
SENATOR SHOWER moved to adopt Amendment 8, work order 32-
GS2031\G.6.
32-GS2031\G.6
Radford
3/11/22
AMENDMENT 8
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 187(JUD), Draft Version "G"
Page 1, line 2, following "coercion;":
Insert "relating to failure to register as a sex
offender;"
Page 5, following line 22:
Insert new bill sections to read:
"* Sec. 8. AS 11.56.835 is amended by adding a new
subsection to read:
(e) In a prosecution for failure to register as
a sex offender or child kidnapper in the first degree
under (a) of this section, it is an affirmative
defense that the person is a homeless individual with
no permanent or temporary address.
* Sec. 9. AS 11.56.840 is amended by adding a new
subsection to read:
(d) In a prosecution for failure to register as
a sex offender or child kidnapper in the second degree
under (a) of this section, it is an affirmative
defense that the person is a homeless individual with
no permanent or temporary address."
Renumber the following bill sections accordingly.
Page 16, line 4:
Following "Act,":
Insert "AS 11.56.835(e), enacted by sec. 8 of
this Act, AS 11.56.840(d), enacted by sec. 9 of this
Act,"
Delete "sec. 8"
Insert "sec. 10"
Page 16, line 5:
Delete "sec. 9"
Insert "sec. 11"
Page 16, lines 5 - 6:
Delete "sec. 10"
Insert "sec. 12"
Page 16, line 6:
Delete "sec. 17"
Insert "sec. 19"
Page 16, line 7:
Delete "sec. 18"
Insert "sec. 20"
Delete "sec. 19"
Insert "sec. 21"
Page 16, line 8:
Delete "sec. 22"
Insert "sec. 24"
Page 16, line 10:
Delete "sec. 11"
Insert "sec. 13"
Page 16, line 11:
Delete "sec. 12"
Insert "sec. 14"
Page 16, line 12:
Delete "sec. 13"
Insert "sec. 15"
Page 16, line 14:
Delete "sec. 14"
Insert "sec. 16"
Page 16, line 18:
Delete "sec. 14"
Insert "sec. 16"
Page 16, line 21:
Delete "sec. 15"
Insert "sec. 17"
Page 16, line 23:
Delete "sec. 16"
Insert "sec. 18"
SENATOR HOLLAND objected for discussion purposes.
2:37:17 PM
SENATOR SHOWER stated the goal of Amendment 8 was to address sex
offenders who are homeless but are required to register on the
Alaska Sex Offender Registry. He pointed out that Sections 8 and
9 address the failure to register as a sex offender in the first
degree by allowing an affirmative defense if the person is a
homeless individual with no permanent or temporary address. He
acknowledged that Alaska has a significant homeless problem,
noting Anchorage has numerous homeless camps. He asked how
someone who was transient, perhaps living in various homeless
camps, could meet the sex offender registration requirements
since they don't reside in permanent or temporary residences. He
noted that this population tends to consist of people who barely
get by, and he did not want to set them up for failure.
2:38:38 PM
MR. SKIDMORE responded that the Department of Law and law
enforcement share the concern that some sex offenders are
homeless. Amendment 8 would say that any sex offender who was
homeless would never be required to report or register where
they reside. The department requires homeless sex offenders to
indicate where they sleep, whether at a homeless shelter or
somewhere else. If the individual lives at a physical camp, they
must describe the camp's location. The department requires this,
so the state will know where they live. He expressed concern
that Amendment 8 would allow a sex offender to declare that they
do not have a home to avoid registering as a sex offender. He
envisioned that a person could live in a recreational vehicle
and move from one place to another, perhaps parking next to an
elementary or high school, daycare center, or park where parents
take their children.
MR. SKIDMORE related that Senator Shower asked him if he had any
idea how many homeless people are considered sex offenders and
must register on the Alaska Sex Offender Registry. He deferred
to Ms. Purinton to respond as he was unsure of the figures.
2:40:54 PM
SENATOR SHOWER responded that he had not considered that aspect.
He asked if the public defender could also respond.
CHAIR HOLLAND asked Mr. Purinton to respond, then Ms. McFarland.
2:41:11 PM
MS. PURINTON stated that she was not able to review the records
to identify the number of sex offenders who would be deemed as
homeless. She offered to research this and report the figures to
the committee.
CHAIR HOLLAND asked Ms. McFarland if she had comments.
2:41:48 PM
MS. MCFARLAND responded that she had not seen Amendment 8, so
she could not speak to the specifics. However, she noted that
registration on the Alaska Sex Offender Registry was
problematic. She offered her view that there is a lack of
uniformity in how they register. She acknowledged that some
homeless sex offenders are charged with failure to register
because of issues related to their location.
2:42:49 PM
SENATOR SHOWER related that he did not wish to cause issues for
law enforcement or the Department of Law. He stated that he does
not currently have a solution. He asked the public defender to
consider remedies to ensure that dangerous offenders are
registered on the Alaska Sex Offender Registry but not to the
extent that it "trips them up." He asked Ms. McFarland to report
any suggestions to the committee.
SENATOR SHOWER withdrew Amendment 8. He stated that he would
consider a floor amendment or seek to amend it in a subsequent
committee.
SENATOR SHOWER asked if any members were interested in
establishing a better timeline for sex offenders who are
traveling.
2:44:12 PM
SENATOR KIEHL stated his interest in further clarifying sex
offender travel. Although the bill addresses timeframes for out-
of-state travel, he wondered if it addresses travel within
Alaska. He suggested that the state could get better results if
the requirements were explicitly listed.
2:45:00 PM
At ease
2:45:59 PM
CHAIR HOLLAND reconvened the meeting.
2:46:11 PM
SENATOR SHOWER asked if the Department of Law suggests codifying
a timeline for sex offender travel requirements.
2:46:41 PM
MR. SKIDMORE responded that attempting to codify requirements
about how quickly someone must report to the department creates
challenges. He suggested it would be similar to when the
committee considers hypothetical situations to ensure the
statutory language does not create loopholes. He directed
attention to AS 11.56.840(b) and paraphrased the affirmative
defense.
(b) In a prosecution for failure to register as a sex
offender or child kidnapper in the second degree under
(a) of this section, it is an affirmative defense that
(1) unforeseeable circumstances, outside the
control of the person, prevented the person from
registering under (a)(3)(A) of this section or
filing or supplying the written notices,
verification, and other information required
under (a)(3)(B) (D) of this section; and
(2) the person contacted the Department of Public
Safety orally and in writing immediately upon
being able to perform the requirements described
in this section.
(c) Failure to register as a sex offender or child
kidnapper in the second degree is a class A
misdemeanor.
2:47:50 PM
MR. SKIDMORE indicated that the sex offender must notify the
department orally or in writing if their residence changes. He
related that if a sex offender fails to do so, the Department of
Law would evaluate the circumstances. He said to put it in
another way, the defense would attempt to capture what was
reasonable and allow the practitioners to sort through whether
the sex offender's reason for not reporting was reasonable. He
stated that there were several levels to determine this,
including what the prosecutor or a jury believes is reasonable.
He recommended taking this approach rather than setting a
specific timeframe for compliance with travel notice.
2:49:19 PM
SENATOR SHOWER responded that "affirmative" provides a level of
comfort. He asked whether anything addresses travel in or out of
state.
2:49:44 PM
SENATOR KIEHL remarked that he was wrong about travel notices
for sex offenders. He referred to page 9, line 17, to the
provision that requires a sex offender or child kidnapper to be
away from their physical address for seven days or more to
notify the department in writing of their address. He noted that
he was previously mistaken about that requirement.
MR. SKIDMORE agreed with Senator Kiehl.
2:50:21 PM
SENATOR MYERS asked whether orally or in writing, includes by
telephone or email.
MR. SKIDMORE answered yes.
2:50:50 PM
SENATOR HUGHES stated that Alaska has the worst sex crime rates
in the nation, so policymakers must do what they can to reduce
those rates. She related that this bill had taken three or four
years to develop. She noted that this is the first sex crime
bill being reported out of this committee this legislative
session. She expressed gratitude for the substantial work done
by the administration and the committee on SB 187. She mentioned
that someone suggested that this bill was introduced during an
election year for political reasons. However, she hoped that the
legislature would not postpone addressing this matter simply
because it is an election year. The committee needs to vet all
the crime bills and move them this year for Alaskans. She said
she is proud to be part of this committee in moving this bill
today.
2:52:38 PM
SENATOR KIEHL agreed with Senator Hughes on the excellent work
done by the administration and the committee, including defining
consent and identifying what constitutes a sexual act without
consent. He offered his belief that this was a big step forward.
He recalled testimony, which he interpreted to say that these
cases are expensive and complex, so unless they are "slam dunks"
they don't go to the jury. He hoped that future administrations
would come to the legislature for the necessary resources to
allow them to take cases when they believe the victim. He said
he would like future legislatures to view any drop-in conviction
rates as a sign that prosecutors were taking the tough cases and
tackling the problem.
2:54:30 PM
CHAIR HOLLAND thanked the committee and the administration for
their work.
2:54:48 PM
SENATOR SHOWER moved to report the committee substitute (CS) for
SB 187, work order 32-GS2031\G, as amended, from committee with
individual recommendations and attached fiscal note(s).
CHAIR HOLLAND found no objection, and CSSB 187(JUD) was reported
from the Senate Judiciary Standing Committee.
2:55:33 PM
There being no further business to come before the committee,
Chair Holland adjourned the Senate Judiciary Standing Committee
meeting at 2:55 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 187 SJUD Amendment Packet.pdf |
SJUD 3/11/2022 1:30:00 PM |
SB 187 |
| SB 187 Amendment 8 (SJUD).pdf |
SJUD 3/11/2022 1:30:00 PM |
SB 187 |