HOUSE BILL NO. 74 "An Act relating to the assault of children by adults." PATTY SWENSON, STAFF, REPRESENTATIVE BUNDE testified on behalf of HB 74. She stated that HB 74 was introduced in response to an attack on a 14 year old newspaper boy in Anchorage. She observed that Sean Jensen was attacked by three adults at 5:30 a.m. while he attempted to deliver a newspaper. The three adults were intoxicated. They knocked out his permanent front teeth, caused neck injuries and ran him over with a snow machine. The adults are only charged with a misdemeanor. If Sean had been 10 years old or younger a felony charge would have been possible. If he had been an adult a felony charge would also have been possible. Ms. Swenson observed that Section 2 provides the prosecutor with flexibility to charge a defendant with a misdemeanor if the defendant reasonably believes the victim was 16 years of age or older. Representative Kohring asked why the limit was set at 16 years of age. Ms. Swenson stated that the sponsor felt that 16 year old children begin to look like adults and at that point you could not reasonable say that two adults were not having a fight. Representative Brown asked how "medical treatment" on page 2, line 5 would be interpreted. She stressed that "medical treatment" should be defined. She hypothesized that children could be injured playing sports. MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW stressed that AS 11.81.900 defines "physical injury" to mean a "physical pain or an impairment of physical condition". She stated that the intent of the legislation is to make it a more serious circumstance than a simple physical injury which could be pain. She acknowledged that medical treatment could still be a relatively minor matter. Ms. Knuth noted that AS 11.41.220 (a) was amended to state: "A person commits the crime of assault in the third degree if that person (1) recklessly... (C) while being 18 years of age or older (i) causes physical injury to a child under 10 years of age and the injury reasonably requires medical treatment." She asserted that there is no difference 7 between the statute and the amendment except that the age is being changed from 10 to under 16 years of age. She questioned if "intentionally" was deleted by a drafting oversight. She stressed that the law will assume that "recklessly" applies. She advised that if the intent is to provide a broad interpretation then AS 11.41.220 (a)(1)(C) should be amended by deleting "10" and inserting "16". She stated that if the intent is to differentiate children under 10 from those over 10 then "intentionally" could be added for cases involving children over the age of 10. Ms. Swenson pointed out that "intentionally" would not cover adults who injure a child while intoxicated. Ms. Knuth agreed that statutes would allow intoxication as a defense for intentional acts. She noted that intoxication would not be a defense to acting recklessly. She reiterated that the standard for the legislation as written would be "reckless" for children under and over the age of 10. Ms. Swenson recalled that the drafter indicated that the legislation as written would identify two different mental states. She noted that the House Judiciary Committee opposed the addition of "intentionally". Representative Brown questioned how a person would be charged if a 17 year old child was injured. Ms. Knuth answered that the charge would be assault in the fourth degree, a class A misdemeanor, punishable up to one year in prison. If a dangerous instrument were used or serious physical injury was caused a felony charge could be made. Ms. Swenson noted that even though the newspaper boy was run over by a snow machine a felony charge was not possible since the injury did not occur as a result of the snow machine. Injuries were caused by the adults striking the child with their fists. Ms. Knuth noted that AS 11.81.610 states that: "If a provision of law defining an offense does not prescribe a culpable mental state, culpable mental state that must be proved with respect to (1) conduct is `knowingly ; and (2) a circumstance or a result is `recklessly.'" Representative Brown asked if Ms. Knuth foresaw an impact on sports or other activities that young people play with older teenagers. Ms. Knuth agreed that district attorneys would not want to charge cases involving sport injuries as felonies. She acknowledged that sport injuries would technically fall under this provision of law. She reiterated problems with "intentionally" in regards to intoxication as a defense. 8 Representative Brown noted that the accompanying fiscal notes are zero. She suggested that there will be some fiscal impact as a result of the legislation. In response to a question by Representative Kohring, Ms. Knuth observed that the maximum penalty for third degree assault is five years imprisonment. A class A misdemeanor is a maximum one year imprisonment. She stated that she would not expect more than 90 days to be imposed for a first offense class A misdemeanor. Representative Mulder MOVED to report HB 74 out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Brown OBJECTED. She suggested that AS 11.41.220 (a)(1)(C) should be amended to delete "10" and insert "16". Ms. Swenson stressed that the fiscal note is zero because there are no statistics available between misdemeanors and felonies. She understood that there will not be enough cases under the legislation to result in a fiscal impact. Representative Brown emphasized that even one case would have a fiscal impact. JERRY LUCKHAUPT, LEGISLATIVE LEGAL COUNSEL, LEGISLATIVE AFFAIRS AGENCY explained that the legislation was drafted with the intention of providing a stair-step approach. He stated that he was operating under the assumption that if the conduct itself is the cause of the physical injury then a "knowing" mental state would be read into the statute. He acknowledged that other interpretations could result in "reckless" as the implied standard. He suggested that "knowingly" could be added if the Committee supports a stair-stepped approach. He observed that "knowingly" is a higher mental state and requires a greater burden of proof on the prosecution. Ms. Swenson stated that the sponsor's intent was to provide a stair-stepped approach. Representative Parnell clarified that "reckless" requires a lesser burden of proof than "knowingly". Mr. Luckhaupt observed that a reckless standard is kin to a gross negligent standard in civil context. He explained that the risk is perceived by the defendant and the disregard of risk is viewed as a gross deviation from what a reasonable person would do in the circumstances. Mr. Luckhaupt explained that "knowing" is the awareness of the act you are doing a the time. It is not intentional to cause harm, but it is intentional to do the act. 9 Co-Chair Hanley reiterated reasons for a stair-stepped approach. Representative Therriault MOVED to add "knowingly" on page 2, line 3. Mr. Luckhaupt reiterated that "knowingly" would add a higher mental state. The prosecutor will have to prove that the defendant intended to do the act that results in harm. He discussed the reasoning behind a reckless mental state for abuse of children under 10. Representative Brown reiterated concern that injuries as the result of organized sports would fall under the legislation's sanction. Representative Mulder echoed concerns that 18 year old high school students may be involved in injuries to other high school students who are 16 years old. Mr. Luckhaupt observed that the District Attorney will decide if charges are filled in each circumstance. He noted that the knowing mental state would be more difficult to prove. Representative Brown clarified that intoxication does not operate as an offense to general intent crimes such as "knowing". Mr. Luckhaupt pointed out that section two of the legislation was inserted to allow the defense that the person reasonably thought the minor was 16 years of age or over. Representative Therriault WITHDREW his motion to amend HB 74 by adding "knowingly" on page 2, line 3. Representative Mulder WITHDREW his motion to move HB 74 from Committee. Therriault MOVED to add "knowingly" on page 2, line 3. Representative Martin spoke in support of a "reckless" mental state. A roll call vote was taken on the MOTION to add "knowingly" on page 2, line 3. IN FAVOR: Brown, Grussendorf, Navarre, Kelly, Kohring, Mulder, Foster, Hanley OPPOSED: Martin Representative Parnell was absent from the vote. The MOTION FAILED (9-1). Representative Brown argued that ordinary activities where 10 individuals choose to play sports and take physical risks where they might injure someone, even knowingly, should not be a crime. (Tape Change, HFC 95-29, Side 2) Representative Grussendorf recognized that injuries occur in organized sports. Mr. Luckhaupt acknowledged that individuals participating in organized sports have been prosecuted for assault in cases where serious bodily injury was inflicted on another player. He restated that the prosecutor must decide if charges are warranted. He insinuated that "knowingly" would make it more difficult to prosecute the case where an elbow is thrown in a pick-up basketball game. He acknowledged that an affirmative defense could be added to the legislation to allow the defense that the injury occurred while engaged in the normal acts of a game. In response to a question by Representative Kelly, Mr. Luckhaupt reiterated that in case of an intentional act, the prosecution would have to show that the defendant had the specific intention to cause physical injury which requires medical treatment. He observed the difficulty of proof in most circumstances. Representative Therriault pointed out that a jury must also be convinced of the defendants guilt. Representative Mulder felt confident that the incidental aggressive behavior on basketball courts or other sporting events are protected by the "knowing" standard. Representative Mulder MOVED to report CSHB 74 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Kelly OBJECTED. Mr. Luckhaupt estimated that charges would not be filed in a normal sport situation unless there is some conduct outside the bonds of reason. Representative Kelly WITHDREW his objection. Representative Brown continued to have concerns that the "knowing" standard is not proper for the creation of a felony crime. Co-Chair Hanley spoke in support of the legislation as amended. He suggested that the legislation would adequately protect normal sport circumstances. Mr. Luckhaupt stressed that the legislation takes the middle ground between adoption of a "reckless" and "intentional" mental state. He pointed out that there is no requirement for prosecutors to file felony charges against everybody that meets the circumstance. Representative Grussendorf observed that some organized sport participants actually try to inflict injuries to their 11 opponentes within the rules of the game. A roll call vote was taken on the MOTION to move CSHB 74 (FIN) out of Committee. IN FAVOR: Grussendorf, Navarre, Kelly, Kohring, Martin, Mulder, Parnell, Foster, Hanley OPPOSED: Brown, Foster The MOTION FAILED (2-9). CSHB 74 (FIN) was reported out of Committee with a "do pass" recommendation and with three zero fiscal notes by the Department of Law, Department of Corrections, and Department of Public Safety. ADJOURNMENT The meeting adjourned at 4:00 p.m. 12