CS FOR HOUSE BILL NO. 14(FIN) "An Act relating to assault in the first degree; relating to harassment; relating to sex offenses; relating to the definition of 'dangerous instrument'; providing for an aggravating factor at sentencing for strangulation that results in unconsciousness; relating to the duties of the prosecuting attorney; and relating to victim notifications." 9:17:40 AM Co-Chair von Imhof stated that the committee had heard the senate finance version of the bill on March 11, 2019, at which time public testimony was taken. She said that like SB 12, HB 14 sought to close a loophole in the states criminal statutes that had allowed an assailant to go free when he should have served time. The law, when read literally, was unable to be applied to the egregious situation. 9:18:57 AM REPRESENTATIVE JOHN LINCOLN, SPONSOR, stated that the bill would address issues with the current law that had come to light in 2018 when a man strangled a woman to the point of unconsciousness and then sexually assaulted her. The bill would define the strangulation or suffocation to the point of unconsciousness as first degree assault and would add the behavior to the list of aggravators for sentencing in other crimes. Additionally, the bill would expand the statutory definition of sexual contact to include forcing someone to come into contact with ejaculate and would expand victim notification laws so that all victims would be notified versus only felony sex crimes. 9:20:11 AM ROSE FOLEY, STAFF, REPRESENTATIVE JOHN LINCOLN, discussed the differences between the current versions of SB 12 and HB 14. HB 14 used the term ejaculate while SB 12 referred to fluid as semen. SB 12 investigated sentencing through sentence enhancement, while HB 14 created an aggravator for strangulation. She said that credit for time served under electronic monitoring was eliminated under SB 12 but was not mentioned in HB 14. She concluded the HB 14 first provided notification to all victims of sex crimes and allowed the court to reschedule a plea hearing to allow the court to comply with notification requirements. 9:21:13 AM Co-Chair von Imhof recalled that Senator Olson had brought up a concern in a previous meeting that pertained to whether victim notification requirements regarding plea agreement struck a balance between ensuring that victims were included, without putting additional pressure on them to participate against their wishes. Ms. Foley directed attention to Page 9, line 13 of the bill, which specified that there was no requirement for the victim, or their legal guardian, to provide a response to a prosecuting attorney regarding a plea agreement. If a victim did not wish to be part of the legal proceedings, there was no requirement that they participate or provide a response. The Alaska Network Domestic Violence and Sexual Assault had requested stronger victim notification language, the sponsor had worked with that agency as well as the courts to craft that language. Department of Law had raised concerns with earlier language in the bill requiring the prosecuting attorney to state in court what notification attempts had been made with victims. The concern had been that this would provide information with the defense, if the victim could not be located, that could be detrimental to the victim's case during the early stages of a plea agreement. 9:22:55 AM Co-Chair von Imhof asked Senator Micciche to comment on victim notification component. Senator Micciche said that the language in the CS was identical to his original bill. He stressed that there were no expectations that the victim would be required to do anything. However, he reminded the committee that Judge Michael Corey, who ruled in the Schneider case that birthed the legislation, had testified that requiring the victim to testify could had resulted in a stronger sentence for the perpetrator. He supported the current language in the CS. 9:24:41 AM Senator Micciche noted that the sponsor had been remarkable to work with. 9:25:40 AM Co-Chair von Imhof invited John Skidmore from the Department of Law to the table for questions. 9:27:02 AM Senator Wielechowski asked whether Department of Law had a position on the bill. JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW, explained that LAW supported the bill. The legislation contained some concepts originally found in the governors suite of proposed crime bills. 9:27:38 AM Senator Wielechowski asked Mr. Skidmore to describe the difference between a special circumstance in sentencing and an aggravator. Mr. Skidmore explained that a special circumstance in sentencing, which was specifically listed in statute, controlled the presumptive range that a court would impose. An aggravator was a legal tool that allowed a judge to increase a sentence above the presumptive range if the court deemed appropriate. 9:28:38 AM Senator Wielechowski referenced page 8, section 6 of the bill, which pertained to a recording when asking victims or victims guardians whether they agreed with a proposed plea agreement. He wondered whether this could force victims to be questioned by a defendant. Mr. Skidmore answered "no." The bill language stated that the prosecuting attorney shall make a reasonable effort to confer with the victim, to explain the proposed plea agreement and then ask whether they agree with the agreement. He stated that the same prosecutor, or the prosecutor at the time of sentencing, would indicate whether the victim had been spoken to and whether they agreed. He stressed that the victim would not be required to go to court, to be subject to cross examination, and no details of the conversation would be divulged. 9:30:35 AM Senator Wielechowski thought that there would be a defense attorney that would want to hear directly from the victim whether they agreed with the plea agreement. He worried that this section of the bill would be challenged in court. Mr. Skidmore appreciated the question. In his experience and that of other prosecutors dealing with victim's rights provisions, he had not seen defense attorneys have success in demanding that a victim be put on the stand. 9:31:50 AM Senator Wilson asked whether the section would allow the victims agreement with a plea deal in a criminal case, or non-agreement, to be used in a civil case. Mr. Skidmore noted that he did not practice civil law. He did not believe that agreement or disagreement would have any bearing on a civil case. He knew that a conviction could have influence on a civil case if the civil case was based on the conduct of the defendant. He was not sure whether the agreement would have any bearing on the sentence in a civil case. Co-Chair von Imhof noted that there was a public defender available to answer questions. 9:34:01 AM Senator Wilson wondered what would happen if victims recanted or changed their statements or agreement with the plea agreement in the criminal case. Mr. Skidmore thought the subsection of the bill would not have an effect on the scenario that Senator Wilson was describing. He furthered that the plea agreement dealt with the sentence that was imposed and not whether the victim agreed on the matter of charges being brought in the first place. 9:35:26 AM Senator Wilson pondered that a defense attorney for a perpetrator could probe the victims reason for not agreeing to a plea bargain, which could then be used against them in civil proceedings. Mr. Skidmore reiterated that he was not an expert or practitioner of civil law. 9:36:12 AM Senator Micciche shared that there was a similar provision in law concerning victims agreeing with plea agreements. There had been a case of sexual abuse of a minor in Healy, Alaska; in which the parents had not agreed to the plea agreement. Mr. Skidmore relayed that LAW had policies under which attorneys communicated with victims about plea agreements before they were entered into, and certainly before sentencing hearings. He said that the bill simply formalized actions that the department already did. 9:38:06 AM Senator Wielechowski agreed with Senator Wilson. He said that in the case of a violent sexual assault, if the victim decided not to testify, making the case harder to prove and increasing the chances of a plea bargain, and if the sentence were pled down significantly and the victim agreed to the plea change, it would absolutely be used in a civil case. Senator Wielechowski asked to what lengths the department was required to go to attempt contact with the victim. Mr. Skidmore referenced Page 8, lines 9-11, which said that the attorney shall make reasonable efforts. This meant that the department would use the information in existing files. He said that there were other steps that were taken to try to locate victims, rarely was law enforcement sent to track down a victim. 9:40:22 AM Senator Micciche asked Mr. Skidmore to describe how the same sentencing for an egregious crime could be reached by either using an aggregator or using enhanced sentencing. Mr. Skidmore detailed that the bill added the subsection that discussed a person knowingly causing a person to become unconscious by means of a dangerous instrument. He said that the increase the conduct of a dangerous instrument to a Class A felony, could increase sentencing ranges. He stated that under current law the sentencing range for strangulation, which was a Class B felony, was 0- 2 years. He noted that the change would up it to 3-6 years, and 4-7 years and 5-8 years were being considered. There was a concept of putting strangulation into a special circumstance, which had potential to increase the range for a Class B felony strangulation from 0-2 years to 1-3 years. It was also possible to adjust the presumptive range for Class B felonies. He relayed that the aggravator in the bill said that if you strangled someone into unconsciousness it could serve and an aggravator, which could only be used if it was not an element of the offense. He explained that the aggravator could not be used on top of the crime of assault, instead the aggravator would have to be used in another type of crime. He related that the two different tools allowed prosecutors to make tactical decisions about the best method to get to the right sentence. 9:43:43 AM Senator Micciche thought the simple answer for the public was that using either method would result in an appropriate sentence to punish the crime. Mr. Skidmore stated that without question the Class A felony available in the bill would increase the sentencing range for strangulation. He said that if the strangulation not been charged as an assault, but used as an aggravator, it would have made a dramatic difference in the sentencing. 9:45:45 AM Senator Wielechowski referenced Page 2, line 4 of the bill and Page 1, line 13, respectively: (4) that person recklessly causes serious physical injury to another by repeated assaults using a dangerous instrument, (3) the person knowingly engages in conduct that results in serious physical injury Senator Wielechowski asked whether there was a difference between knowingly causes and knowingly engages in conduct. Mr. Skidmore answered in the negative. 9:47:02 AM Co-Chair von Imhof stated that the committee would not move the bill. She acknowledged that Senator Wilson and Senator Wielechowski had concerns and asserted that the bill was a priority for the entire legislature. She said that the committee would continue to work with the bill sponsor. 9:48:03 AM JAENELL MANCHESTER, 49TH RISING, FAIRBANKS (via teleconference), spoke in support of the bill. She asserted that survivors of sexual violence were encouraged to support but that the legal system was notoriously unfriendly to survivors. She cited a story from a woman named Jessica, who had recounted that when she reported being raped, police had told her that the defense would tear her down in court. When asked if she could handle that, she responded that she could not, and declined to press charges. She said that including all sex offenses in the victim notification statute, and stipulating that a court could reschedule a plea agreement hearing if the victim notification requirement was unfulfilled, would ensure that the legal system was more survivor friendly, while ensuring the defendants right to a fair trial. She added that the bill would help survivors feel safe and protect survivors by elevating the severity of strangulation. She shared that strangulation was a serious and deadly form of abuse that was often underestimated. She relayed that victims of strangulation were likely to suffer long-term physical and mental repercussions and were 7 times more likely to be killed by their partners. She believed that recognizing the severity of strangulation in statute would help remove perpetrators from society and provide additional tools to survivors and advocates to keep survivors safe. She supported the amendment to end the practice of granting credit towards a sentence of imprisonment for time spent under electronic monitoring. She thought that passing the amendment would increase accountability and send the signal that sexual violence was taken seriously by the legislature and the courts. She concluded that nonconsensual contact with semen was a form of sexual violence and should be recognized as much by the legislation. 9:50:31 AM Senator Wielechowski asked whether the Public Defender Agency had concerns with the bill. BETH GOLDSTEIN, ACTING PUBLIC DEFENDER, DEPARTMENT OF ADMINISTRATION (via teleconference), stated that the office had a concern with Section 4, which amended AS 11.81.900(b)(60). She believed that the wording did not require the sex act to be committed in the presence of the victim. She worried that by separating the sex act from the contact the language my capture contact that the legislature does not intend to punish. She understood the need to close the loophole in statute but felt the language could be clearer. 9:52:13 AM Senator Wielechowski asked whether there were any other concerns. Ms. Goldstein replied in the negative. 9:52:46 AM AT EASE 9:54:34 AM RECONVENED Co-Chair von Imhof relayed that the committee would set the bill aside to allow the sponsors of HB 14 and SB 12 to continue to work with all involved parties on changes to the bill. The committee would take the bill back up on the following Monday. CSHB 14(FIN) was HEARD and HELD in committee for further consideration.