HB 20-SEXUAL ASSAULT EXAMINATION KITS  3:12:39 PM CO-CHAIR KREISS-TOMKINS announced that the next order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 20, "An Act relating to sexual assault; relating to the definitions of 'without consent' and 'consent'; relating to failure to report a violent crime; relating to sexual misconduct under the code of military justice; requiring law enforcement agencies to test sexual assault examination kits; requiring notification of completion of testing; relating to reports on untested sexual assault examination kits; and providing for an effective date."   3:13:23 PM REPRESENTATIVE GERAN TARR, Alaska State Legislature, as prime sponsor of SSHB 20, began her presentation of the proposed legislation with a PowerPoint presentation, entitled "House Bill 20." She gave a brief background on the rape kit reform work in Alaska: Rape kit reform in Alaska began in the fall of 2014. The Joyful Heart Foundation, founded by actress Mariska Hargitay of the Law & Order: Special Victims Unit television series, launched its "End The backlog" campaign. She referenced the Home Box Office (HBO) documentary, entitled "I Am Evidence," which related the discovery of thousands of rape kits stored in an abandoned building in Detroit, Michigan, and ultimately 500,000 untested rape kits throughout the country. She cited that Alaska ranks first in domestic violence and sexual assault rates, and child sexual abuse rates are six times the national average. REPRESENTATIVE TARR relayed that the first step in the reform process is a statewide audit to quantify the number of untested rape kits in Alaska. The U.S. Department of Justice (USDOJ) under President Barak Obama offered two large grant opportunities, and Alaska has been successful in securing two of the grants. As a result of Alaska's Scientific Crime Detection Laboratory ("crime lab") [Department of Public Safety (DPS)] audit, it was discovered that the [rape kit testing] system was broken: all the kits weren't being tested; there were improper procedures; and standard procedures were not followed for maintaining a chain of custody for the rape kits. A change has been implemented to require each kit have a unique identifier to track it through the system. In addition, a policy was implemented to require all rape kits be stored at the crime lab in Anchorage; high capacity storage shelving was acquired for this purpose. REPRESENTATIVE TARR stated that Senate Bill 54 [passed during the Thirtieth Alaska State Legislature, 2017-2018] put the audit requirement into statute; and House Bill 31 [passed during the Thirtieth Alaska State Legislature, 2017-2018] put into statute the "gold standard" for reporting - having both an anonymous report and a law enforcement report - to allow a victim to have the evidence collected, which must be done within 72 hours [of the incident], but still allow the victim to delay making the decision regarding prosecution. She added that House Bill 31 also required standardized training on sexual assault for all law enforcement officials. She mentioned that this requirement was in response to a statement by a sexual assault advocate that law enforcement response to sexual assault depends on where you live in the state. Lastly House Bill 31 renewed the requirement for the audit of untested rape kits in Alaska. REPRESENTATIVE TARR relayed that still to be addressed are the two recommendations from The Joyful Heart Foundation: a timeline to establish when testing must occur and a victim notification process. All the reforms mentioned are included in the Survivors' Bill of Rights Act of 2010. She stated that besides the two recommendations, SSHB 20 would address the following: a definition of consent and the inclusion of sexual assault against someone who is incapacitated, requested by Standing Together Against Rape (STAR) and the Alaska Network on Domestic Violence & Sexual Assault (ANDVSA); and specificity in the audit report requested by 49th State Rising. 3:21:20 PM REPRESENTATIVE WOOL moved to adopt the sponsor substitute (SS) for HB 20, Version 31-LS0253\S, as the working document. There being no objection, SSHB 20 was before the committee. 3:21:51 PM REPRESENTATIVE TARR continued with the PowerPoint presentation to review the sectional analysis for SSHB 20. She relayed that STAR and ANDVSA requested a change in statutory language to address the circumstances in which a person's incapacitation is in question - whether the person is incapacitated and whether the perpetrator knew it. She cited the STAR document, entitled "2019 Policy Priorities," included in the committee packet, which read in part: Revise the elements of the crime to ensure a perpetrator may be found guilty of the offense if they know or reasonably should know the victim is incapacitated or unaware and unable to consent to sexual penetration or sexual contact under the circumstances. REPRESENTATIVE TARR offered that Sections 1, 2, and 3 would change the statutory definition for sexual assault in the first, second, and third degrees, respectively. The statutory language regarding sexual assault would be amended to state that a person commits the crime [of sexual assault] if he/she knows or reasonably should know that the victim is mentally incapable. She stated that the addition of "reasonably should know" would facilitate prosecution of a sexual assault crime. She pointed out that there is a variance regarding the legal language to be used in the statute - "reasonably should know" versus "recklessly disregard." Both are used in statute; they address the same standard; the Department of Law (DOL) and Legislative Legal Services have offered varying opinions; and it is yet to be decided which ultimately will be used in the proposed legislation. REPRESENTATIVE TARR said that sexual assault in the first degree involves sexual penetration; sexual assault in the second degree involves sexual contact; and sexual assault in the third degree involves sexual contact that is more specific to improper abuse of power situations. She stated the fundamental questions to be considered regarding the proposed legislation: What does justice look like for a victim? Does SSHB 20 include all the circumstances in which a crime is committed in order to bring justice to the victims? She reviewed sentencing for sexual assault shown on the PowerPoint presentation, which read in part as follows: Section 1: Sexual Assault in the First Degree Sentencing: For first felony conviction, if victim is less than 13 years of age, 25 to 35 years 13 years of age or older, 20 to 30 years Section 2: Sexual Assault in the Second Degree Sentencing: for the first felony conviction 5 to 15 years Section 3: Sexual Assault in the Third Degree Sentencing: for the first felony conviction 2 to 12 years 3:26:40 PM REPRESENTATIVE TARR reviewed the definition of consent in Section 4 of SSHB 20, displayed on the PowerPoint presentation, which read as follows: Current 11.41.470 (8) defines "without consent" as means that a person (A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone; or (B) is incapacitated as a result of an act of the defendant. Problem: Current outdated definition implies force must be used. This is not always the case and jurors often look for evidence of force. Solution: Update the meaning of consent to be in the affirmative, to demonstrate that consent has been given. This is consistent with other jurisdictions to require a more overt expression of consent. New language to 11.41.470: (9) "consent" means words or overt actions indicating freely given agreement to engage in sexual penetration or sexual contact. REPRESENTATIVE TARR added that this change, which puts consent into the affirmative rather than in terms of "without consent" and the use of force, represents an evolution of society's understanding of consent and expectations around sexual behaviors. REPRESENTATIVE TARR pointed out the conforming changes included in Section 5 of SSHB 20. The proposed legislation would update AS 11.56.765(a), which addresses the failure to report a violent crime committed against a child and make it clear that a child can never give consent to sexual penetration. She pointed out the changes, found on page 4, lines 15-23, of SSHB 20: sub- subparagraphs (i), (ii), (iii), and (iv) [under AS 11.56.765(a)(1)(C)] would be deleted; and subparagraph (C) would read, "the sexual penetration or attempted sexual penetration by another of a child". Legislative Legal Services personnel explained that after research, they concluded that these four sub-subparagraphs were included in error, because of the understanding that a child can never give consent. Paragraph (2), [page 4, lines 26-27] defines a child as under 16 years of age. 3:32:00 PM REPRESENTATIVE TARR pointed out the conforming change in Section 6, [page 4, lines 30-31]. The proposed legislation would update AS 11.56.767(c), which addresses the failure to report a violent crime committed against an adult, by adding the definition of consent. She added that under the proposed legislation, all statutory references to "without consent" would be repealed and replaced by the new definition of consent. REPRESENTATIVE TARR pointed out another such conforming change in Section 7, [page 5, lines 1-2]. The proposed legislation would update AS 26.05.900(e), relating to the Military Code of Justice, to add the definition of consent. 3:33:10 PM REPRESENTATIVE WOOL asked whether a sex crime has been committed if there is sexual penetration involving a 15-year-old, who is legally a child according to statute, and another person who is two or three years older. REPRESENTATIVE TARR replied that Section 6, beginning on page 4, line 30, addresses "failure to report a crime" under AS 11.56.767; it refers to an individual who knows that a crime has happened, and not someone engaged in the crime. REPRESENTATIVE WOOL gave an example: A 22-year-old has a 17- year-old younger brother who is in a sexual relationship with a 15-year-old school mate. He asked whether the 22-year-old is legally obliged to report the relationship as a crime. REPRESENTATIVE TARR answered, "Yes, if it is in fact a crime." She expressed that she is not clear about the age difference issue; however, if it is in fact a criminal act, then it must be reported. REPRESENTATIVE WOOL asked if the reporting requirement would be new statute under the proposed legislation or existing statute. REPRESENTATIVE TARR responded that it is existing statute conforming to its original intent based on the opinion of Legislative Legal Services. She reiterated that the language on page 4, lines 17-23, would be removed under SSHB 20 because of the understanding that a child cannot give consent. 3:36:39 PM CO-CHAIR KREISS-TOMKINS referred to Section 5 on page 4, lines 17-23, and suggested that none of the four sub-subparagraphs being deleted relate to a consensual sexual relationship; therefore, Representative Wool's example of statutory rape - involving two minors with sufficient age difference - would not be captured in that mandatory reporting scenario. REPRESENTATIVE TARR expressed her belief that the crime he is referencing is covered under a different statute. Section 5 refers to AS 11.56, entitled "Offenses Against Public Administration," and involves a person, other than the victim, committing the crime of failure to report a violent crime against a child. Removing the four sub-subparagraphs is due to it being understood that a child can never give consent. 3:38:40 PM REPRESENTATIVE VANCE referred to the stipulation of "13 years" under sentencing for sexual assault in the first degree, shown on the PowerPoint presentation, and the definition of a child - someone under 16 years of age - in Section 5, [page 4, lines 26- 27]. She asked for an explanation of the discrepancy. REPRESENTATIVE TARR referenced AS 12.55.125(i), which read in part, "A defendant convicted of (1) sexual assault in the first degree, sexual abuse of a minor in the first degree" and stated that the sentencing addresses two categories of crime. REPRESENTATIVE VANCE asked, "What's the difference between the definition of a minor and of a child?" REPRESENTATIVE TARR responded that in Alaska, 16 years of age is the age at which a young person may marry with parental permission, which presents inconsistencies in statute regarding 16- to 18-year-olds. There is proposed legislation to move the marriage age to 18 years of age. She asked Representative Vance, "Are you asking specifically why this one chooses 13 years of age versus the other as 16?" She acknowledged that she does not have the answer for that. REPRESENTATIVE VANCE agreed to pursue the issue later. 3:41:28 PM REPRESENTATIVE LEDOUX asked whether there are no longer mandatory reporters with respect to crimes, and everyone is required to report. REPRESENTATIVE TARR expressed her understanding that what Representative LeDoux is referring to is mandatory reporting of child abuse by teachers, childcare workers, coaches, and such. She maintained that the proposed legislation would not alter that requirement. She explained that the proposed statutory change is specific to a statute regarding "offenses against public administration"; therefore, does not impact any of the other statutes that have specific requirements of mandatory reporting. REPRESENTATIVE LEDOUX asked whether no crime has been committed when failing to report the murder of a 17-year-old, but it is a crime when failing to report the murder of a 16-year-old. REPRESENTATIVE TARR responded that the language in the proposed legislation does not address homicides but only sexual assault crimes. She offered that since AS 11.56.767 (c) addresses the failure to report a violent crime committed against an adult, both categories are covered in statute. 3:43:14 PM CO-CHAIR FIELDS suggested that the questions, although interesting, pertain more to the underlying statute than to the proposed legislation. 3:43:31 PM REPRESENTATIVE TARR conceded that some of the statutory amendments were at the recommendation of Legislative Legal Services to correct some erroneous language and not completely aligned with the intent of the bill. REPRESENTATIVE TARR moved on to Section 8 regarding sexual assault examination kits and relayed that this section addresses the two remaining timeline recommendations and victim notification. The PowerPoint presentation read as follows: Title 44: State Government Chapter 41: Department of Public Safety Section 65: new section Sexual Assault Examination Kits Adds language to requires three things: 1. That all sexual assault examination kits are sent to the crime lab within 30 days of collection 2. That all sexual assault examination kits be tested within six months 3. That victims be notified by law enforcement within two weeks of receiving the results that the kit has been tested REPRESENTATIVE TARR added that the law enforcement agency is the client of the crime lab for the purpose of sending in kits for testing. She cited page 5, lines 6-8, of SSHB 20 which read: (1) within 30 days after the agency collects the sexual assault examination kit, send the sexual assault examination kit to a laboratory operated or approved by the Department of Public Safety; REPRESENTATIVE TARR mentioned that the word "approved" needs to be replaced with the word "accredited." She stated that the fiscal note for SSHB 20 has not been completed; however, she does expect there to be a cost associated with the proposed legislation. She also mentioned that the timelines may need to be lengthened. REPRESENTATIVE TARR referred to the fundamental question: What does justice mean for victims? She stated that with the cuts in staffing, it was taking more than two years to bring cases to trial; prosecutors were waiting to request the lab to do the testing until such time they felt the case would move forward; victims were waiting two years to get any results from the kits. She cited the scenario in which the identity of the perpetrator is unknown and emphasized the effect that would have on the victim. The Survivor Bill of Rights states that by establishing set timelines, the burden and the trauma of the experience for the victim is eased. 3:46:38 PM CO-CHAIR FIELDS suggested that even six months seems slow. REPRESENTATIVE TARR replied that many states are working on this effort using a variety of timelines. She mentioned that she originally set an 18-month timeline. Currently DPS is achieving an average of 10 months. She maintained that the crime lab was built with the idea of having a huge amazing facility, fully staffed, with a robust testing system. She said, "It just never happened." REPRESENTATIVE TARR stated that the gold standard for victim notification is to have a database with unique identifiers, usernames, and passwords to allow the victim to log in and track the "life cycle" of the kit. She said that typically when one calls law enforcement repeatedly, the story must be related repeatedly, and the victim is re-traumatized as a result. In the course of two years, the victim may have called up to ten times. She stated that currently there are three databases: one for current cases; one for closed cases; and another one specific to the court system. There are challenges in rural communities with internet access, staffing, and capacity. She said that she is working with DPS to find a way to accomplish notification without it being overly burdensome to law enforcement in small communities where resources are limited. REPRESENTATIVE TARR referred to Sections 9 and 10, which would add statutory language requiring [DPS to include in the audit] the reason a kit was ineligible for testing. She explained that the audits [currently] did not include that information; 49th State Rising has requested that this information be included. The work of the Sexual Assault Kit Initiative (SAKI) by way of the two federal grants will end; therefore, she wants to ensure that language in the statute reflects appropriate reporting in perpetuity in the absence of that organization. REPRESENTATIVE TARR reviewed the PowerPoint presentation discussing Section 11, which lists the reasons a sexual assault examination kit is ineligible for testing. It read in part as follows: Amends 44.41.070 to add a new subsection (e) to read A sexual assault examination kit is ineligible for testing if the law enforcement agency or state department finds that the sexual assault examination kit (1) was collected improperly (2) is not necessary to identify the perpetrator of the crime; or (3) was collected from a person who does not wish to proceed 19 (sic) with criminal charges. REPRESENTATIVE TARR offered alternative language that is being considered for the proposed subsection (e) of AS 44.41.070. The person referred to in paragraph (3) is also called an "anonymous victim" - a person who chooses not to move forward with criminal charges. Paragraph (2) may be referred to as a Combined deoxyribonucleic acid (DNA) Index System (CODIS) ineligible sexual assault kit - the DNA is not eligible to be used for identification. Paragraph (1) may be referred to as a scientifically unviable case - evidence was collected improperly. She reiterated that there are unresolved language issues for the proposed legislation, not intent or outcome issues; she is attempting to gather input from many advocacy groups. 3:53:08 PM REPRESENTATIVE VANCE referred to paragraph (3) [page 6, lines 18-19], regarding the anonymous victim. She asked whether there was a way to test that kit in the future should the person decide to move forward with criminal charges later. REPRESENTATIVE TARR responded, "There is a way to go back." She said that as a result of House Bill 31, the two options were defined - the anonymous report and the law enforcement report. In the course of processing the backlog of cases, DPS is attempting to contact individuals to seek their permission to move forward with the testing. REPRESENTATIVE VANCE asked whether there is a provision for the sexual assault kit of a minor, who cannot give consent to proceed [with testing]. REPRESENTATIVE TARR replied that there is a different procedure when sexual assault of a minor is involved. She offered to give Representative Vance more information. REPRESENTATIVE TARR turned to Section 13 to display the effective dates of SSHB 20, as follows: the changes would apply to offenses committed on or after the effective dates of Sections 1-7 and Section 12 of the proposed legislation; and SSHB 20 would take effect January 1, 2020. REPRESENTATIVE TARR referred to Section 12 to point out that in the places in which statute has been updated to reflect the affirmative definition of consent, Section 12 would repeal the previous definition of "without consent" to be replaced with the new definition of "consent." 3:55:46 PM REPRESENTATIVE WOOL referred to the statement that a child cannot give consent and the legal definition of a child as under age 16. He asked whether there are situations in which consent cannot be given for someone age 16 and over. REPRESENTATIVE TARR mentioned statute from the State of Minnesota, which more clearly defines a person who cannot give consent; for example, stipulating that a person who is mentally incapacitated or physically helpless cannot consent to a sexual act. She stated that there are many places in Alaska statute needing updates and there are resulting implications of those changes. She explained that her office is trying to decide whether language captures what is intended or whether more specificity is needed. She said that she welcomes suggestions. 3:57:54 PM REPRESENTATIVE WOOL referred to victim notification of test results. He asked whether victims are being notified that the test has been completed or being notified of the results. REPRESENTATIVE TARR cited page 5, lines 13-16, of SSHB 20, which read as follows: (3) within two weeks after the laboratory that receives the sexual assault examination kit under (1) of this subsection completes serological or DNA testing, notify the person from whom the sexual assault examination kit was collected that the sexual assault examination kit has been tested. REPRESENTATIVE TARR added that putting more specifics into the statute was discussed - whether there was a CODIS hit or whether the DNA sample was insufficient for testing - but staff chose not to put that level of specificity into the statute at present. She explained that depending on the community law enforcement agency, different methods may be appropriate for contacting victims. She said that she wanted to leave some flexibility to law enforcement for how communication would occur and what would be communicated. REPRESENTATIVE WOOL asked whether in the case of someone not wishing to press charges, the person's kit would not be in the queue for testing under the testing timelines but be set aside and tested later if the victim decides to press charges. REPRESENTATIVE TARR replied, "That is the intent." She said that based on USDOJ recommendations, the state must use a victim-centered approach; if an individual does not want his/her kit tested, the person must be afforded the right to refuse. CO-CHAIR KREISS-TOMKINS stated that SSHB 20 would be held over.