HOUSE BILL NO. 34 "An Act relating to the crime of misprision of a crime against a child." REPRESENTATIVE FRED DYSON, SPONSOR explained that the legislation was the result of a case that occurred in Nevada. A seven-year-old child was molested and killed in a casino restroom. A friend of the perpetrator observed the act. He later gave the perpetrator a ride back to California. The person observing did not act to assist the minor during the assault and murder. Representative Dyson noted that since this crime eight states have made it a misdemeanor to refuse to go to the aid to a child who is actively being assaulted. He noted that laws to assist were very common in American and English common law over a 130 years ago. The duty to assist did not survive when states moved to statute law. He noted that professional mariners are required to go to the aid of a vessel in need of assistance. Police and military personnel also have a duty to assist those in distress. The legislation would make it a class A misdemeanor to refuse to assist a minor. He observed that it is a positive offense if a person does not help the child because they are afraid for their own life or safety. He noted that fiscal notes are indeterminate because it is unclear how many cases would be prosecuted. He estimated that there would only be one or two cases in a decade. He stressed that a culture's values are reflected in its law. He observed that under current statute a person could sell tickets to an assault of a child with impunity. Representative J. Davies spoke in support of the legislation. He asked why it is limited to children. Representative Dyson noted that the Senate version of the legislation was not restricted to children. He stated that the concept of the duty to assist is not common to our statute law. He observed that legislation pertaining to those viewed as incompetent, such as children under the age of majority would be easier to defended. He stated that an argument could be made to extend the law to developmental disabled or profoundly handicapped adults. He stated that he would support an expansion of the legislation. Vice-Chair Bunde clarified that "child" would be defined as anyone under 18 years of age. He asked how serious crimes committed by a child would be addressed. Representative Dyson noted that the bill does not speak to anticipated crimes. He referenced page 1, line 8: "Witnesses what the person knows or reasonably should know is (A) the murder or attempted murder of a child by another; (B) The kidnapping or attempted kidnapping of a child by another; (C) The sexual penetration or attempted sexual penetration by another." Representative Dyson stated that "a crime is about to happen" could be added after "reasonably should know". Co-Chair Therriault stressed that consideration should be given to the possible fiscal impact. Representative Grussendorf questioned the effect the legislation would have on witnesses. He noted that a person who did not respond during the event could be penalized if they come forth as a witness after the fact. He expressed concern a person may view something but not be sure of what is happening at the time of the event. Representative Dyson acknowledged the difficulty of knowing if a child is being kidnapped or is just acting up to their parents. He noted that the legislation addresses what a person "knows" or "reasonably should know." He observed that not being certain of a confusing situation is a positive defense. He added that exceptions are made for those fearing injury: "did not report in a timely manner because the defendant reasonably believed that doing so would have exposed the defendant or others to a substantial risk of physical injury." He observed that people are afraid of involvement in domestic violence cases. He stressed that prosecutors would grant witnesses immunity from prosecution in order to allow testimony against perpetrators. Representative Kohring spoke in support of the legislation and questioned if the penalty should be a felony instead of a misdemeanor. Representative Dyson stated that the penalty was a felony in the original legislation. He explained that the legislation asks that people assist in instances that would be class E felonies. He explained that if the penalty for failing to assist were a felony that the perpetrator and the person who failed to assist could be charged the same. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW acknowledged that no one would disagree that people have a moral obligation to help a child. She stressed that the problem occurs when it is made a crime. She emphasized that the legislation pertains to a person that simply witnesses a crime. She observed that it is already against the law to help a perpetrator during or after a crime. The legislation only addresses a person who witnesses an offense. She acknowledged that the person should go to the aid of the child. The concern is that if a person witnesses a crime and does not report it in a timely manner that they would be lost as a witness. She noted that witnesses would be locked into their previous testimony, for fear that they will be charged if they change their story and tell the truth. Failure to assist was a crime in common law, but fell into disuse due to problems. She suggested that the legislation begin with the most serious crimes, murder, kidnapping and perhaps attempted murder. She stressed that the broader the bill the greater the problems in relationship to witnesses. She noted that the difference between felony and misdemeanor assaults could be subtle. The difference involves the mental state of the perpetrator in relationship to intent, recklessness or criminal negligence. She recommended that felonious assault be deleted and the legislation be limited to murder, kidnapping and perhaps sexual assault in the first degree. Representative Grussendorf observed that the state of Minnesota has a similar law. He asked if other states have broader laws. Ms. Carpeneti did not know. Vice-Chair Bunde questioned if the person that witnessed the Nevada crime could have been prosecuted in Alaska since he aided the escape of the perpetrator. Ms. Carpeneti stated that Alaska law states prohibits a person from aiding and helping a person escape with intent. She felt that it would have been possible to investigate the charge if it the crime had occurred in Alaska. She noted aiding a criminal is a class A felony in Alaska. Vice-Chair Bunde asked if Representative Dyson would be willing to drop the assault charge. Representative Dyson stated that he would be willing to drop assault if it were necessary to advance the bill, but that it would not be his choice. Ms. Carpeneti explained that a class A felony has a penalty of one year imprisonment and a $500 thousand dollar fine. In response to comments by Representative Foster, Ms. Carpeneti reiterated that the legislation allows an affirmative defense of fear. Representative Dyson gave examples of similar legislation enacted by other states. He noted that Massachusetts has also included armed robbery. Representative J. Davies questioned if there would be a way to further delineate assaults. He observed that "assaults punishable as a felony" is a high standard. He suggested that the language could read "an assault such as armed robbery." Representative Dyson explained that felonious assaults include a deadly weapon. He noted that the definition of a deadly weapon is subject to interpretation. Co-Chair Therriault stressed that the general public would not know the level of the offense under the law. Ms. Carpeneti acknowledged that felony is a legal term. Representative Dyson pointed out that there is no penalty for reporting lower level assaults. In response to a question by Vice-Chair Bunde, Representative Dyson explained that molestation and abuse were not added in order to clarify the legislation. The intent is that a child in grave danger receives assistance. Vice-Chair Bunde stressed that the legislation needs to be clearly defined. Representative J. Davies suggested that "punishable as a felony" be deleted and "an assault that would inflict severe physical harm" be inserted. Ms. Carpeneti stated that the language would improve the legislation. She recommended that the legislation be restricted to murder, kidnapping and sexual assault in the first degree. She added that assault in the first degree could be added. She pointed out that there is no penalty for a person who reports every time they see a child in need. Representative J. Davies expressed concern that the use of "felony" would provide a loophole. Representative Dyson stressed that the legislation pertains to children being assaulted by an adult. Co-Chair Therriault pointed out that the legislation includes children up to the age of 18. Representative Grussendorf noted that the adult could be one or two years older than the victim. Ms. Carpeneti explained that first degree sexual assault is usually sexual penetration without consent. Ms. Carpeneti recommended that sexual penetration without consent could be used to limit the legislation to sexual assault in the first degree. Representative Grussendorf asked if the age of consent would affect the legislation. Ms. Carpeneti clarified that it would not impact the legislation. The main issue is the consent. Representative J. Davies asked that the legislation be held for 24 hours to allow an amendment. Representative Dyson supported his request. HB 34 was HELD in Committee for further consideration. (Tape Change, HFC 99 - 104, Side 1)