Legislature(1993 - 1994)

02/16/1994 01:32 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   SENATE JUDICIARY COMMITTEE                                  
                       February 16, 1994                                       
                           1:32 p.m.                                           
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Robin Taylor, Chairman                                                
 Senator George Jacko                                                          
 Senator Dave Donley                                                           
 Senator Suzanne Little                                                        
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 Senator Rick Halford, Vice-Chairman                                           
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 SENATE BILL NO. 252                                                           
 "An Act prohibiting the possession of child pornography."                     
                                                                               
 HOUSE BILL NO. 3                                                              
 "An Act relating to public home care providers; and providing for             
 an effective date."                                                           
                                                                               
 SENATE JOINT RESOLUTION NO. 39                                                
 Proposing an amendment to the Constitution of the State of Alaska             
 to guarantee, in addition to the right of the people to keep and              
 bear arms as approved by the voters at the time of ratification of            
 the state Constitution, that the individual right to keep and bear            
 arms shall not be denied or infringed by the state or a political             
 subdivision of the state.                                                     
 HEARD BUT NOT SCHEDULED.                                                      
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 SB 252 - No previous action to record.                                        
                                                                               
 HB 3 - See HESS minutes dated 4/21/93.                                        
                                                                               
 SJR 39 - See State Affairs minutes dated 1/21/94.  See                        
          Judiciary Minutes dated 2/4/94.                                      
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Senator Miller                                                                
 Prime Sponsor                                                                 
 State Capitol                                                                 
 Juneau, Alaska 99801-1182                                                     
  POSITION STATEMENT:   Supported SB 252.                                      
                                                                               
 Ermalee Hickel                                                                
 National Enough is Enough Campaign Member                                     
 State Capitol                                                                 
 Juneau, Alaska 99801-1182                                                     
  POSITION STATEMENT:   Supported SB 252.                                      
                                                                               
 Bob Head                                                                      
 Chairman, State Human Relations Commission                                    
 Director, American Family Association State of Alaska                         
 Juneau, Alaska                                                                
  POSITION STATEMENT:   Supported SB 252.                                      
                      Encouraged changing the class B misdemeanor to           
                     a class C felony.                                         
                                                                               
 Virginia Phillips                                                             
 Enough is Enough Member                                                       
 404 Lake Street, 2-D                                                          
 Sitka, Alaska 99835                                                           
 POSITION STATEMENT:   Supported SB 252.                                       
                      Encouraged changing the class B misdemeanor to           
                      a felony.                                                
                                                                               
 Roberta Beebe                                                                 
 1902 SMC                                                                      
 Sitka, Alaska 99835                                                           
  POSITION STATEMENT:   Supported SB 252.                                      
                      Encouraged changing the misdemeanor to a                 
                      felony.                                                  
                                                                               
 Diane Schenker                                                                
 Department of Corrections                                                     
 Juneau, Alaska                                                                
  POSITION STATEMENT:   Offered an amendment to SB 252.                        
                                                                               
 Jerry Luckhaupt, Legislative Counsel                                          
 Division of Legal Services                                                    
 130 Sevard Street, Suite 409                                                  
 Juneau, Alaska 99801-2105                                                     
  POSITION STATEMENT:   Reviewed SB 252.                                       
                                                                               
 Bruce Grossman                                                                
 P.O. Box 1284                                                                 
 Delta Junction, Alaska 99737                                                  
  POSITION STATEMENT:   Suggested tighter language in the Department           
                      of Corrections amendment.                                
                                                                               
 Jerry Mackie                                                                  
 Prime Sponsor                                                                 
 State Capitol                                                                 
 Juneau, Alaska 99801-1182                                                     
  POSITION STATEMENT:   Supported HB 3.                                        
                                                                               
 Nancy Weller                                                                  
 Staff to Representative Mackie                                                
 State Capitol                                                                 
 Juneau, Alaska 99801-1182                                                     
  POSITION STATEMENT:   Offered additional information on HB 3.                
                                                                               
 Fran Jameson, Associate Coordinator                                           
 Older Alaskans Commission                                                     
 P.O. Box 110209                                                               
 Juneau, Alaska 99811-0209                                                     
  POSITION STATEMENT:   Supported HB 3.                                        
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
 TAPE 94-11, SIDE A                                                            
 Number 001                                                                    
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:32 p.m. and introduced  SB 252  (POSSESSION OF CHILD               
 PORNOGRAPHY) as the first order of business before the committee.             
                                                                               
 SENATOR MILLER, prime sponsor, stated that SB 252 "closes the loop"           
 by making the possession of child pornography a class B                       
 misdemeanor.  Currently, producing and selling child pornography is           
 unlawful while owning child pornography is not a crime.  He pointed           
 out that the U.S. court addressed the pornography issue when a New            
 York statute that banned the possession or viewing of child                   
 pornography was upheld; local state laws are constitutional in this           
 area.  He noted that the Department of Corrections has a proposed             
 amendment to SB 252.  He believed that pornography is a plague on             
 society, especially child pornography.                                        
                                                                               
 SENATOR LITTLE expressed concern about the use of "knowing" and               
 said she would address that to the drafter.                                   
                                                                               
 ERMALEE HICKEL supported and encouraged passage of SB 252.  She               
 believed that pornography should not have a place in our society              
 and that child pornography is an outrage.  She explained many                 
 staggering statistics regarding abuse of children and sexual abuse;           
 Alaska ranks number one in the nation in child sexual abuse.  She             
 noted that 1 in 3 girls and 1 in 7 boys will be sexually molested             
 by the age of eighteen.  Over 80 percent of child molesters admit             
 to regular use of pornography.  Approximately 1.2 million children            
 are exploited every year in the production of child pornography and           
 child prostitution.  She asserted that legislation prohibiting the            
 possession of child pornography makes a positive step towards                 
 protecting young people while sending a strong message to those who           
 use such material.                                                            
                                                                               
 Number 110                                                                    
                                                                               
 Ms. Hickel informed the committee that she was a member of the                
 National Enough is Enough Campaign which has made the public aware            
 of illegal pornography and child pornography.  She pointed out that           
  Time  and  Newsweek  had featured advertising which educate the p   e p  
 about the relationship between hard core pornography and sexual               
 abuse of children.  The National Enough is Enough Campaign is                 
 having a positive effect on changing the laws regarding obscenity             
 and child pornography.  She commended this organization for its               
 work on behalf of America's children.  She urged support of SB 252.           
 She said now is the time to take care of our children before it is            
 too late.                                                                     
                                                                               
 BOB HEAD, Chairman of the State Human Relations Commission and                
 Director of the American Family Association State of Alaska, noted            
 that most of his comments were taken from a sound bite of a                   
 Commissioner who served on the Attorney General's Commission on               
 Pornography.  He began by defining child pornography and stating              
 that it was unchallengable as evidence; furthermore, an adult who             
 violates a child sexually is also unequivocably a child molester.             
 He defined and characterized the "situational" and the                        
 "preferential" molester.  The "preferential" molester, commonly               
 known as a pedophile, seems to victimize many more children than              
 the "situational" molester.  He discussed the six step "life cylce"           
 of child pornography which ultimately perpetuates the the cycle.              
 He explained the various effects on children used in pornography,             
 noting that many victims will be likely to become an abuser in this           
 abuse cycle.                                                                  
                                                                               
 Mr. Head informed the committee that some states have already made            
 child pornography illegal.  Such states consider this to be an                
 effective defense against child molesters.  He urged passage of               
 SB 252, but with the first offense being classified as a class C              
 felony not a class B misdemeanor.  He suggested that the first                
 conviction require registration on an inter-state law enforcement             
 network, and tie that registration requirement to life-time                   
 probation which has been proven constitutional.                               
                                                                               
 Number 217                                                                    
                                                                               
 CHAIRMAN TAYLOR asked Mr. Head to which states or cases he was                
 referring when he mentioned life-time probation and other                     
 enhancements to the penial system had been proven constitutional.             
 BOB HEAD said that he would have to refer to the Commission's                 
 report on pornography for such details.  CHAIRMAN TAYLOR noted that           
 the Commission's report would be added to the packets.                        
                                                                               
 VIRGINIA PHILLIPS, Enough is Enough Member, supported SB 252 for              
 the safety of Alaskan children.  She explained that a recent study            
 from the University of New Hampshire illustrates a strong                     
 corelation between the use of child pornography and sexual abuse of           
 children.  Every child in the neighborhood of a user of child                 
 pornography becomes a potential victim of sexual abuse due to the             
 pornography users insatiable sexual appetite for children.  She               
 stated that children used in pornography are harmed physically,               
 mentally, and emotionally; their childhood innocence is taken from            
 them.                                                                         
                                                                               
 Ms. Phillips explained that SB 252 may not withstand a court                  
 challenge for two reasons: Alaska's lack of statute defining what             
 is pornographic and obscene, the 1969 U.S. Supreme Court ruling               
 that private possession of obscene material cannot be                         
 constitutionally made a crime.  She encouraged passage of SB 252              
 with the the class B misdemeanor being changed to a felony.                   
                                                                               
 CHAIRMAN TAYLOR requested copies of Ms. Phillips testimony.                   
                                                                               
 ROBERTA BEEBE supported SB 252 because she believes that                      
 pornography exploits children from infancy up to teens.                       
 Pornography eliminates the ability of an innocent childhood free of           
 sexual knowledge.  She explained that pornography degrades the                
 perpetrator and perpetuates further victimization of other                    
 children.  She expressed the need to make SB 252 a felony.                    
                                                                               
 Number 286                                                                    
                                                                               
 DIANE SCHENKER, Department of Corrections, explained that her                 
 amendment addressed material that is used to provide sex offender             
 treatment which could be construed as child pornography.  Exposure            
 to pornographic material produces an accurate assessment of what              
 the offenders risk level is and to what population.  She stated               
 that the amendment would exempt those providing plethysmograph                
 assessments during sex offender treatment which meets the standards           
 of AS 33.30.011.                                                              
                                                                               
 SENATOR LITTLE asked if a sex offender treatment program that was             
 not a state affiliate would still be exempt under this amendment.             
 DIANE SCHENKER explained that many sex offender treatment programs            
 provided in communities are doing so under contract with the                  
 Department of Corrections.  She noted that the Department of                  
 Corrections has a board who makes sure that the programs are                  
 meeting approved provider status minimum standards.  She stated               
 that a provider giving sex offender treatment who was not approved            
 by the Department of Corrections would not be covered under this              
 proposed amendment.  She did not believe there are many such cases.           
                                                                               
 CHAIRMAN TAYLOR stated that a provider would be required to meet              
 the minimum standards in order to possess the materials discussed             
 under this amendment.  The provider would not have to be affiliated           
 with anyone.                                                                  
                                                                               
 SENATOR LITTLE moved to adopt the amendment by the Department of              
 Corrections.  Hearing no objections, the amendment was adopted.               
                                                                               
 SENATOR LITTLE asked why the "knowing" provision on line 6 could              
 not be moved to line 5 after "person."  She inquired as to why the            
 "knowing" clause was placed in the legislation the way it was.                
                                                                               
 Number 353                                                                    
                                                                               
 JERRY LUCKHAUPT, Legislative Counsel, stated that the "knowing"               
 requirement is placed on line 6 in order to be consistent with the            
 current distribution of child pornography statute.  He acknowledged           
 possible difficulties with proving that the offender knew that                
 child involved in the pornographic production was under the age of            
 eighteen at the time.  He explained that in many cases that problem           
 would not occur due to the general intent level of "knowing."                 
                                                                               
 Mr. Luckhaupt said that there are problems when attempting to                 
 regulate or specify a division between constitutional materials an            
 individual can keep in their own home and those that are not.                 
 Regular pornography can be possessed in the home; it is not                   
 unconstitutional.  He pointed out that the U.S. Supreme Court has             
 drawn the line with child pornography; the possession of child                
 pornography in the home can be prohibited.  He explained that the             
 "knowing" requirement should assure that SB 252 is construed as               
 constitutional.  Without such a clause there would be an increased            
 potential for a challenge to include possession of material of                
 those over eighteen, which cannot be regulated.                               
                                                                               
 SENATOR LITTLE said that she was thinking of adding another                   
 "knowingly," but now believes that could weaken the bill.                     
                                                                               
 JERRY LUCKHAUPT believed that "knowing" was in an appropriate                 
 place.  He recognized the possibility to draft this legislation in            
 a broader manner; however, drafting SB 252 broader would increase             
 risks.  He did not see the need to add "knowing" to the clause                
 referring to the possession of child pornography.  Currently, the             
 language follows previous legislation regarding prescribed                    
 possession, distribution, or intent to distribute child                       
 pornography.  He noted that there is a Federal Statute prohibiting            
 the possession of child pornography.  He explained that Attorney              
 General's Office believed that most child pornography possession              
 cases would surface during other investigations when a search                 
 warrant was executed.                                                         
                                                                               
 SENATOR JACKO asked if SB 252 applied to an individual who was                
 eighteen or under and married.                                                
                                                                               
 JERRY LUCKHAUPT pointed out that with an individual under the age             
 of eighteen there is no distinction regarding whether that                    
 individual is a spouse of someone who possesses or takes the                  
 photographs.  There is currently no spousal defense provided under            
 sexual exploitation of minor statutes.  He noted that there is a              
 spousal affirmative defense for sexual abuse of a minor, when the             
 spouse of the offender.  The legislature has not provided a                   
 statutory defense for sexual exploitation of a minor, or                      
 distribution of child pornography.  He acknowledged the possibility           
 that a court could read in some defense due to the lack of                    
 definition for "child" under Title XI.  A minor that is the spouse            
 of someone could be said to no longer be a child due to having a              
 spouse.   He inquired of the possibility that the committee may               
 want to consider providing a general defense for the sexual                   
 exploitation of a minor statutes, distribution of child pornography           
 statutes, the possession of child pornography statutes, or a                  
 spousal defense.                                                              
                                                                               
 Number 453                                                                    
                                                                               
 CHAIRMAN TAYLOR expressed concern with the lack of a definition of            
 obscene and the excuse that in Alaska pornography could be                    
 classified as art.                                                            
                                                                               
 JERRY LUCKHAUPT observed that the term obscene is not used in                 
 SB 252.  He recognized the problems with definitions of obscene.              
 Currently, the Miller definition of obscenity is applied by the               
 courts which addresses the violation of contemporary community                
 standards, applies a purient interest, and the lack of any artistic           
 value.  He pointed out that SB 252 speaks to possession of visual             
 or aural material depicting illegal conduct as described in AS                
 11.41.455.  He did not believe there would be a problem in not                
 defining obscene; potentially that would strengthen the statute.              
                                                                               
 SENATOR DONLEY pointed out that lots of ordinary movies imply that            
 teenagers are engaging in sexual activities; would possession of              
 such a movie be a crime.                                                      
                                                                               
 SENATOR JACKO asked if it would also apply to plays.                          
                                                                               
 SENATOR DONLEY noted that the statutes refer to depicted conduct              
 and simulated conduct.  JERRY LUCKHAUPT stated that there is a                
 defense provided for motion pictures for the distribution of child            
 pornography in AS 11.61.125.  He said that the committe may want to           
 apply the same sort of defense for motion pictures for the mere               
 possession of the material.  He used Blue Lagoon as an example that           
 distribution of that film would not violate the distribution of               
 child pornography statute, although it involved or visually                   
 depicted lewd touching of the minor.  AS 11.41.455 does not provide           
 a defense for inducing or employing a minor to engage in or                   
 simulate illegal exploitation of a minor conduct; there is no                 
 defense for works of art, plays or anything such as that.                     
                                                                               
 SENATOR DONLEY posed the following situation.  If a theatrical                
 presentation employs adults to depict such unlawful conduct while             
 the story refers to teenagers.  He pointed out that the individuals           
 who made the theatrical presentation did not break any law, but               
 those who possess such a presentation about teenagers knowingly               
 possess something that could be considered unlawful.                          
                                                                               
 Number 522                                                                    
 JERRY LUCKHAUPT explained that the proof process requires that the            
 viewer has knowledge the presentation uses a person under eighteen            
 in order to find the viewer guilty of possession of child                     
 pornography.  The decision to exempt movie theaters under the                 
 distribution of child pornography statute probably used this same             
 argument.  He stated that the defense provided for movie theaters             
 addresses concerns about the possibility of initiating a                      
 prosecution.  That defense would prevent the charge from ever                 
 proceeding.                                                                   
                                                                               
 SENATOR JACKO asked if any federal statutes address a spouse under            
 the age of eighteen.  JERRY LUCKHAUPT said that he did not remember           
 any.  Mr. Luckhaupt explained that part of the argument is that a             
 spouse who takes photographs of their under age child and                     
 distributes them does harm to the other spouse.  There is a need to           
 protect the child in such a situation.  Mr. Luckhaupt stated that             
 the same argument could be used regarding possession.                         
                                                                               
 CHAIRMAN TAYLOR asked about the utilization of virtual reality                
 regarding this legislation; would it be covered.  JERRY LUCKHAUPT             
 said that there would be a problem if a child under the age of                
 eighteen had been employed.  CHAIRMAN TAYLOR asked if cartoons that           
 do not utilize anyone but that accurately depict situations as if             
 it were children would be covered.  JERRY LUCKHAUPT noted that                
 there are other bills being introduced that speak to depiction of             
 material harmful to minors where cartoons could apply.  He said               
 that they are requiring that a child under the age of eighteen                
 years be employed or involved in an unlawful depiction or unlawful            
 conduct which would not be the case in cartoons.  He did not                  
 believe there would be any violation of SB 252 or the possession of           
 child pornography statute.  There would not be depictions of                  
 conduct outlawed in AS 11.41.455 because that statute does not use            
 the referrence child.                                                         
                                                                               
 CHAIRMAN TAYLOR asked if there is a provision that would cover the            
 creation of such imagery.  He stated that if they use cartoons,               
 they would not be charged.  JERRY LUCKHAUPT said that if cartoons             
 are used the individual would be able avoid legal action.                     
                                                                               
 Number 578                                                                    
                                                                               
 SENATOR DONLEY asked what was the age people can be married in                
 Alaska.  JERRY LUCKHAUPT said that under sixteen the court's                  
 permission is needed.  Sixteen to eighteen years of age only                  
 requires parental permission.  At eighteen years of age the                   
 individual can do as they wish.                                               
                                                                               
 SENATOR DONLEY inquired of the presence of statutes defining a                
 child as an emancipated minor or minor who is legally married.                
 JERRY LUCKHAUPT explained that a minor can become emancipated at              
 the age of sixteen by going before the court to recieve permission            
 to become emancipated.  An emancipated minor then has the ability             
 to possess a firearm.                                                         
                                                                               
 TAPE 94-11, SIDE B                                                            
 Number 592                                                                    
                                                                               
 JERRY LUCKHAUPT pointed out that the word child is used in SB 252             
 when it is not used in the sexual abuse of a minor statutes.  He              
 seems to believe that provides an argument for why a charge under             
 these statutes should not go forward against a spouse; however,               
 there are no definite answers.                                                
                                                                               
 CHAIRMAN TAYLOR asked what are the penalties for a class B                    
 misdemeanor and a class C felony.  JERRY LUCKHAUPT believed that              
 class B was less than thirty days or ninety days imprisonment and             
 a $1000 fine or more if you are an organization.  An organization             
 or company that distributed child pornography could be fined the              
 amount of money realized from the illegal activity which applies to           
 all felonies and misdemeanors.  The judge has the option of the set           
 fine or the realized amount from the illegal activity.                        
                                                                               
 SENATOR DONLEY asked how safeguards could be added to parallel the            
 other parts of the statutes that deal with this issue.  JERRY                 
 LUCKHAUPT stated that the only safeguard was the defense provided             
 for motion pictures regarding the distribution of child                       
 pornography.  Mr. Luckhaupt noted that perhaps it would make sense            
 to continue that defense by applying it to possession of child                
 pornography.                                                                  
                                                                               
 CHAIRMAN TAYLOR expressed concern with being able to distinguish              
 between a motion picture such as Blue Lagoon and a sleazy video               
 production both of which could be rented at a local video store.              
                                                                               
 SENATOR DONLEY noted that some movies do more that depict, they               
 show.  He was concerned with the distinction between the                      
 implication of an illegal activity and the showing of the activity.           
                                                                               
 JERRY LUCKHAUPT reiterated that the distribution of pornography               
 statute, AS 11.61.125, provides a defense for acts that are an                
 integral part of the exhibition or preformance of a motion picture            
 which must be shown in a place where motion pictures are shown.               
                                                                               
 CHAIRMAN TAYLOR noted the presence of backrooms which contain all             
 sorts of bad material in video stores.  He expressed the need to              
 address such activities.  The distributor in such a backroom                  
 operation should recieve some sanctions.                                      
                                                                               
 JERRY LUCKHAUPT pointed out that the distribution statute does not            
 address video dealers, therefore, there is no defense provided for            
 them.  He explained that if they know that a child was involved in            
 production of the video would create problems for them.  There does           
 not appear to be a way to craft a statute due to the sensitivity of           
 the area with all of the exceptions that would need to be meet.               
 CHAIRMAN TAYLOR asked if Mr. Luckhaupt felt that the standards                
 would hold up constitutionally.  He referred to the Weaver and the            
 Waco cases when relaying his lack of faith in prosecutorial                   
 discretion.  He asserted that if they empower someone with this               
 legislation, the legislation should meet the constitution without             
 leaving so much leeway that the legislation could be thrown out.              
 He stated that currently, he wanted to risk some prosecution which            
 would allow litigation rather than continue to provide a loophole.            
                                                                               
 Number 505                                                                    
                                                                               
 JERRY LUCKHAUPT noted that the Ohio statute that made the                     
 possession of child pornography illegal was as broad as this                  
 statute and the U.S. Supreme Court agreed.  The Right to Privacy is           
 the problem in Alaska; the U.S. Supreme Court used that provision             
 under the U.S. Constitution, which is not explicitly stated, was              
 used to strike down a Georgia statute that made possession of                 
 regular pornography illegal.                                                  
                                                                               
 SENATOR DONLEY said that the specific Right to Privacy offers                 
 comfort for unusual situations such as a married couple that are              
 ages seventeen and eighteen may innocently fall into this.  The               
 Right to Privacy would be extended to their marriage so that they             
 are constitutionally protected.  He indicated that Alaska's Right             
 to Privacy would prevent making criminals out of those who are not.           
 He stated that he did not want to criminalize people unnecessarily.           
                                                                               
 JERRY LUCKHAUPT was concerned that the Department of Corrections              
 amendment may not address the situation that a psychiatrist could             
 be giving plethysmograph treatment to an individual without the               
 psychiatrist operating under a Department of Corrections contract             
 or notifying them.  CHAIRMAN TAYLOR pointed out that Ms. Schenker             
 indicated that most professionals would be under the Department of            
 Corrections or they would already meet the standards.                         
                                                                               
 SENATOR DONLEY asked if they could incorporate all the licensed               
 professionals that are conducting this treatment.                             
                                                                               
 BRUCE GROSSMAN, testifying from Delta Junction, stated that he                
 supports the state tightening statutes on child pornography, but              
 the Department of Correction's amendment seems rather broad.  He              
 believed that child pornography is a problem in the Interior.  He             
 noted the importance of the previously mentioned safeguards                   
 provided by the Right to Privacy; however, the possession of child            
 pornography does not need to be covered by statue.  He supported              
 the amendment with tighter language.                                          
                                                                               
 CHAIRMAN TAYLOR asked which portion of the language would he                  
 suggest tightening up.  BRUCE GROSSMAN expressed concern that this            
 would not cover innocent family photos such as children bathing.              
 He did not want this to be abused regarding such a situation.                 
                                                                               
 CHAIRMAN TAYLOR asked if Mr. Luckhaupt had any recommendations for            
 modification of the amendment regarding Senator Donley's concerns.            
                                                                               
 Number 421                                                                    
                                                                               
 JERRY LUCKHAUPT pointed out that the amendment refers to the                  
 minimum standards under AS 33.30.011(6) which could be applied to             
 SB 252 in a manner that requires anyone offering voluntary                    
 treatment outside the corrections system to meet the Department of            
 Corrections standards.  The psychiatrist would have to learn those            
 standards and modify the program to ensure that the standards were            
 met.                                                                          
                                                                               
 CHAIRMAN TAYLOR thought that any professional involved in this                
 treatment would be familiar with the standards.  JERRY LUCKHAUPT              
 said that one would assume that since most of their clients would             
 be from the corrections system.                                               
                                                                               
 JERRY LUCKHAUPT indicated that an earlier draft included "under the           
 direct supervision of a licensed professional" after "program"                
 which would assure that a medical doctor or psychiatrist is                   
 involved.  He did not believe the present amendment had a problem.            
                                                                               
 SENATOR TAYLOR asked Mr. Luckhaupt what a class C felony would                
 entail.                                                                       
                                                                               
 JERRY LUCKHAUPT noted that distribution of child pornography is a             
 class C felony.  If the legislature decided that possession of                
 child pornography was as dangerous as distribution they could make            
 possession a class C felony.  He explained that usually the                   
 legislature does stair steps which would place distribution as the            
 greater offense.                                                              
                                                                               
 SENATOR TAYLOR inquired about the reasoning behind possession being           
 a class B misdemeanor versus a class A.  JERRY LUCKHAUPT informed             
 the committee that he was working from a previous drafter's draft.            
                                                                               
 SENATOR DONLEY asked if there was any other state law that                    
 criminalizes the mere possession of any other document type of non            
 physically dangering substance.  JERRY LUCKHAUPT explained that               
 many of the subversive material laws that other states have are not           
 present in Alaska since Alaska did not become a state until 1959.             
 He did not know of any laws dealing with subversive material.                 
                                                                               
 SENATOR DONLEY asserted that this would be the first time that                
 Alaska would make mere possession, in your own home, a crime                  
 besides drugs or weapons.  He said that this would be a big step.             
 Law enforcement would not be trained in this issue.  He                       
 acknowledged the Department of Law's point that often these cases             
 would occur when enforcing more serious crimes.                               
                                                                               
 JERRY LUCKHAUPT said that Alaska probably did have obscenity                  
 provisions before the criminal code was revamped.  He offered to              
 check out that possibility.                                                   
                                                                               
 SENATOR TAYLOR asked the committee if the offense should be a class           
 B misdemeanor or a class C felony.                                            
                                                                               
 SENATOR DONLEY said that since this legislation would be a big                
 change that it should be taken cautiously.  He supported SB 252               
 with the Department of Corrections amendment.                                 
                                                                               
 SENATOR JACKO moved that SB 252 as amended be moved out of                    
 committee. Hearing no objections, it was so ordered.                          
                                                                               
 Number 303                                                                    
 REPRESENTATIVE JERRY MACKIE stated that  HB 3  (REGULATION OF HOME            
 CARE PROVIDERS) would add protections for the elderly and disabled            
 of Alaska.  HB 3 would restrict the ability of a home care provider           
 in obtaining power of attorney of the client they serve.  HB 3                
 would require criminal background checks of persons providing home            
 care services that are paid by state funds.  He noted that grantees           
 who contract with state agencies to provide these services would be           
 required to order criminal background checks on their employees.              
 HB 3 requires that the Department of Health and Social Services               
 (DHSS) implement regulations on actions due to reports of harm by             
 a home care provider while protecting the due process rights of               
 that provider.  He stated support of HB 3 by the Division of Family           
 and Youth Services and the Older Alaskans Commission.                         
                                                                               
 Representative Mackie urged the committee's positive consideration            
 of HB 3 with a minor change.  He suggested changing the dates on              
 page 3, lines 26 and 27 from "1994" to "1995" which would be a                
 technical change.  He said that he had reintroduced this                      
 legislation due to circumstances in his district where a home care            
 provider had assumed power of attorney over an elderly individual's           
 bank accounts.  The home care provider spent almost all of the                
 elderly individual's life savings.  He informed the committee that            
 Pioneer Homes are full with increasingly longer waiting lists,                
 while the senior population is rapidly growing.  He expressed his             
 personal belief that elderly individuals are more comfortable in              
 their own homes.  He also pointed out that HB 3 does not allow                
 someone to have direct control of an elderly person's finances;               
 there would have to be a third party involved.                                
                                                                               
 SENATOR JACKO asked if there would be a charge for the background             
 check.  REPRESENTATIVE MACKIE said that Public Safety would do                
 those.  He referred to the attached fiscal notes.  NANCY WELLER,              
 staff to Representative Mackie, stated that the person who requests           
 the background check would be charged.  She did note the new                  
 situation with Adult Protective Services being transferred to the             
 Division of Senior Services from the Division of Family and Youth             
 Services (DFYS).  Before this shift the DFYS had agreed to pay some           
 of the background check while providing slightly less services in             
 order to protect this population of individuals.                              
                                                                               
 REPRESENTATIVE MACKIE said that perhaps DFYS felt that they could             
 absorb that cost from within without requiring additional                     
 legislative appropriations.  He stated that there had been strong             
 administrative support of this legislation.  He asked if there                
 could be a user fee, the individual would pay, as a condition of              
 employment since the division has the ability to regulate.                    
                                                                               
 Number 203                                                                    
                                                                               
 CHAIRMAN TAYLOR stated that HB 3 seems to provide a request for               
 records.  REPRESENTATIVE MACKIE said that would be the criminal               
 background check.  In response to Chairman Taylor, Representative             
 Mackie pointed out that HB 4, a companion bill to HB 3, does tie in           
 some of the provisions not in HB 3.                                           
                                                                               
 CHAIRMAN TAYLOR expressed concern with setting up another                     
 bureaucracy to license people who take care of elder individuals.             
 REPRESENTATIVE MACKIE said that HB 3 takes the basic essentials to            
 do a better job from a public policy standpoint.                              
                                                                               
 CHAIRMAN TAYLOR moved to amend lines 26 and 27 on page 3; deleting            
 "1994" and inserting "1995" for an effective date.  Hearing no                
 objection, HB 3 was amended.                                                  
                                                                               
 FRAN JAMESON, Associate Coordinator at the Older Alaskans                     
 Commission, noted their position paper and their support of HB 3.             
 She said that criminal checks would protect the elderly and                   
 disabled from exploitation.  The agency would require in the                  
 condition of grant award that community agencies do background                
 checks.  From the grant money the agency would pick up the cost,              
 approxiamately $75, with a reduction in overall services, about               
 three fewer hours of service for each client.  She felt that the              
 protection of the clients would be worth that reduction of service.           
                                                                               
 Number 145                                                                    
                                                                               
 CHAIRMAN TAYLOR asked why the applicant could not pay for the                 
 background check.  FRAN JAMESON said that some individuals could              
 not pay the fee.  Ms. Jameson clarified for Senator Little that the           
 background check would cost approxiamately $75.                               
                                                                               
 CHAIRMAN TAYLOR inquired about the wages of the employees.  FRAN              
 JAMESON informed the committee that Respite Care wages range from             
 $7 to $9 per hour; however, there are others in home services that            
 may be as expensive as $15 per hour.  She reiterated that the                 
 general cost of a criminal background check would be around $75.              
                                                                               
 REPRESENTATIVE MACKIE suggested that perhaps the applicant should             
 pay for the background check, especially due to the limited funding           
 and the reduction of services.                                                
                                                                               
 CHAIRMAN TAYLOR discussed the various positions that require                  
 background checks.  He expressed surprise that the cost was as high           
 as $75.  He said that question could be addressed in finance.                 
                                                                               
 FRAN JAMESON submitted a position paper to the committee.                     
                                                                               
 SENATOR DONLEY moved HB 3 as amended out of committee with                    
 individual recommendations.  Hearing no objections, it was so                 
 ordered.                                                                      
                                                                               
 Number 078                                                                    
 SENATOR DONLEY presented a Letter of Intent for  SJR 39  (RIGHT TO            
 KEEP AND BEAR ARMS) which discusses three points of concern.  The             
 first paragraph speaks to the applicability of SJR 39 to private              
 action.  The second paragraph addresses the appropriate standard              
 for SJR 39, a strict scrutiny standard is required.  Paragraph                
 three recognizes existing laws limiting felons from owning                    
 firearms, although they may not have been convicted of a violent              
 felony.  He explained that the legislature found that if a felony             
 is committed, that disregard of the law can justify the legislature           
 limiting access and possession of firearms.  He said that the goal            
 of paragraph three is to defend existing firearm limitations on               
 felons from a constitutional challenge under the new constitutional           
 standard.                                                                     
                                                                               
 CHAIRMAN TAYLOR suggested that Senator Donley circulate the Letter            
 of Intent to have comments.  He scheduled the Letter of Intent for            
 the next hearing.  He thanked Senator Donley for his work.                    
                                                                               
 There being no further business to come before the committee, the             
 meeting was adjourned by CHAIRMAN TAYLOR.                                     
                                                                               

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