HB 298: "An Act relating to the crimes of harassment, possession of child pornography, and distribution of indecent material to a minor; relating to suspending imposition of sentence and conditions of probation or parole for certain sex offenses; relating to aggravating factors in sentencing; relating to registration as a sex offender or child kidnapper; amending Rule 16, Alaska Rules of Criminal Procedure; and providing for an effective date."
00 HOUSE BILL NO. 298 01 "An Act relating to the crimes of harassment, possession of child pornography, and 02 distribution of indecent material to a minor; relating to suspending imposition of 03 sentence and conditions of probation or parole for certain sex offenses; relating to 04 aggravating factors in sentencing; relating to registration as a sex offender or child 05 kidnapper; amending Rule 16, Alaska Rules of Criminal Procedure; and providing for 06 an effective date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 11.56.759(a) is amended to read: 09 (a) A person commits the crime of violation by sex offender of condition of 10 probation [OR PAROLE] if the person 11 (1) is on probation [OR PAROLE] for conviction of a sex offense; 12 (2) has served the entire term of incarceration imposed for conviction 13 of the sex offense; and
01 (3) [EITHER 02 (A)] violates a condition of probation imposed under 03 AS 12.55.100(a)(5), (a)(6), or (e), 12.55.101(a)(1), or any other condition 04 imposed by the court that the court finds to be specifically related to the 05 defendant's offense [; OR 06 (B) VIOLATES A CONDITION OF PAROLE IMPOSED 07 UNDER AS 33.16.150(a)(3), (a)(4), (a)(6), (a)(13), (b)(4), (b)(11), OR (f)]. 08 * Sec. 2. AS 11.56.759(c) is amended to read: 09 (c) Violation by sex offender of condition of probation [OR PAROLE] is a 10 class A misdemeanor. 11 * Sec. 3. AS 11.56.840 is repealed and reenacted to read: 12 Sec. 11.56.840. Failure to register as a sex offender or child kidnapper in 13 the second degree. (a) A person commits the crime of failure to register as a sex 14 offender or child kidnapper in the second degree if the person 15 (1) is required to register under AS 12.63.010; 16 (2) knows that the person is required to register under AS 12.63.010; 17 and 18 (3) fails to 19 (A) register; 20 (B) file written notice of 21 (i) change of residence; 22 (ii) change of mailing address; 23 (iii) establishment of an electronic or messaging address 24 or any change to an electronic or messaging address; or 25 (iv) establishment of an Internet communication 26 identifier or any change to an Internet communication identifier; 27 (C) file the annual or quarterly written verification; or 28 (D) supply accurate and complete information required to be 29 submitted under this paragraph. 30 (b) The failure to register under (a)(3)(A) of this section or file or supply the 31 written notices, verification, or other information required under (a)(3)(B) - (D) of this
01 section is conduct that does not require a culpable mental state. 02 (c) In a prosecution for failure to register as a sex offender in the second 03 degree under (a) of this section, it is an affirmative defense that 04 (1) unforeseeable circumstances, outside the control of the person, 05 prevented the person from registering under (a)(3)(A) of this section or filing or 06 supplying the written notices, verification, and other information required under 07 (a)(3)(B) - (D) of this section; and 08 (2) that the person contacted the Department of Public Safety orally 09 and in writing immediately upon being able to perform the requirements described in 10 this section. 11 (d) Failure to register as a sex offender or child kidnapper in the second degree 12 is a class A misdemeanor. 13 * Sec. 4. AS 11.61.118(a) is amended to read: 14 (a) A person commits the crime of harassment in the first degree if the person 15 violates AS 11.61.120(a)(5) and the offensive physical contact is contact 16 (1) with human or animal blood, mucus, saliva, semen, urine, vomitus, 17 or feces; or 18 (2) by the person touching another person's genitals, anus, or 19 female breast, either directly or through clothing. 20 * Sec. 5. AS 11.61.127(a) is amended to read: 21 (a) A person commits the crime of possession of child pornography if the 22 person knowingly possesses or knowingly accesses on a computer with intent to 23 view any material that visually or aurally depicts conduct described in 24 AS 11.41.455(a) knowing that the production of the material involved the use of a 25 child under 18 years of age who engaged in the conduct. In this subsection, 26 "computer" has the meaning given in AS 11.46.990. 27 * Sec. 6. AS 11.61.127(c) is amended to read: 28 (c) Each film, audio, video, electronic, or electromagnetic recording, 29 photograph, negative, slide, book, newspaper, magazine, or other material that visually 30 or aurally depicts conduct described in AS 11.41.455(a) that is possessed or accessed 31 in violation of (a) of this section [BY A PERSON KNOWING THAT THE
01 PRODUCTION OF THE MATERIAL INVOLVED THE USE OF A CHILD 02 UNDER 18 YEARS OF AGE THAT ENGAGED IN THE CONDUCT] is a separate 03 violation of this section. 04 * Sec. 7. AS 11.61.127 is amended by adding a new subsection to read: 05 (e) In a prosecution for possession of child pornography under (a) of this 06 section, it is an affirmative defense that the person 07 (1) possessed or accessed less than three depictions described in (a) of 08 this section; and 09 (2) without allowing any person other than a law enforcement agency 10 to view the depictions, either took reasonable steps to destroy them, or reported the 11 matter to a law enforcement agency and allowed the agency access to the depictions. 12 * Sec. 8. AS 11.61.128(a) is amended to read: 13 (a) A person commits the crime of [ELECTRONIC] distribution of indecent 14 material to minors if 15 (1) the person, being 18 years of age or older, knowingly distributes to 16 another person [BY COMPUTER] any material that depicts the following actual or 17 simulated conduct: 18 (A) sexual penetration; 19 (B) the lewd touching of a person's genitals, anus, or female 20 breast; 21 (C) masturbation; 22 (D) bestiality; 23 (E) the lewd exhibition of a person's genitals, anus, or female 24 breast; or 25 (F) sexual masochism or sadism; and 26 (2) either 27 (A) the other person is a child under 16 years of age; or 28 (B) the person believes that the other person is a child under 16 29 years of age. 30 * Sec. 9. AS 11.61.128(c) is amended to read: 31 (c) Except as provided in (d) of this section, [ELECTRONIC] distribution of
01 indecent material to minors is a class C felony. 02 * Sec. 10. AS 11.61.128(d) is amended to read: 03 (d) Distribution [ELECTRONIC DISTRIBUTION] of indecent material to 04 minors is a class B felony if the defendant was, at the time of the offense, required to 05 register as a sex offender or child kidnapper under AS 12.63 or a similar law of 06 another jurisdiction. 07 * Sec. 11. AS 12.55.085(f) is amended to read: 08 (f) The court may not suspend the imposition of sentence of a person who 09 (1) is convicted of a violation of AS 11.41.100 - 11.41.220, 11.41.260 10 - 11.41.320, 11.41.360 - 11.41.370, 11.41.410 - 11.41.530, [OR] AS 11.46.400, or 11 AS 11.61.125 - 11.61.128; 12 (2) uses a firearm in the commission of the offense for which the 13 person is convicted; or 14 (3) is convicted of a violation of AS 11.41.230 - 11.41.250 or a felony 15 and the person has one or more prior convictions for a misdemeanor violation of 16 AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction 17 having [SUBSTANTIALLY] similar elements to an offense defined as a misdemeanor 18 in AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person 19 shall be considered to have a prior conviction even if that conviction has been set aside 20 under (e) of this section or under the equivalent provision of the laws of another 21 jurisdiction. 22 * Sec. 12. AS 12.55.100(e) is repealed and reenacted to read: 23 (e) In addition to other conditions imposed on the defendant, while on 24 probation and as a condition of probation 25 (1) for a sex offense, as described in AS 12.63.100, the defendant 26 (A) shall be required to submit to regular periodic polygraph 27 examinations; 28 (B) may be required to provide each electronic mail address, 29 instant messaging address, and other Internet communication identifier that the 30 defendant uses to the defendant's probation officer; the probation officer shall 31 forward these addresses and identifiers to the Alaska state troopers and to the
01 local law enforcement agency; 02 (2) if the defendant was convicted of a violation of AS 11.41.434 - 03 11.41.455, AS 11.61.125 - 11.61.128, or a similar offense in another jurisdiction, the 04 defendant may be required to refrain from 05 (A) using or creating an Internet site; 06 (B) communicating with children under 16 years of age; or 07 (C) possessing or using a computer. 08 * Sec. 13. AS 12.55.155(c)(5) is amended to read: 09 (5) the defendant knew or reasonably should have known that the 10 victim of the offense was particularly vulnerable or incapable of resistance due to 11 advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, 12 or extreme youth or was for any other reason substantially incapable of exercising 13 normal physical or mental powers of resistance; 14 * Sec. 14. AS 12.55.155(c)(18) is amended to read: 15 (18) the offense was a felony 16 (A) specified in AS 11.41 and was committed against a spouse, 17 a former spouse, or a member of the social unit made up of those living 18 together in the same dwelling as the defendant; 19 (B) specified in AS 11.41.410 - 11.41.458 and the defendant 20 has engaged in the same or other conduct prohibited by a provision of 21 AS 11.41.410 - 11.41.460 involving the same or another victim; [OR] 22 (C) specified in AS 11.41 that is a crime involving domestic 23 violence and was committed in the physical presence or hearing of a child 24 under 16 years of age who was, at the time of the offense, living within the 25 residence of the victim, the residence of the perpetrator, or the residence where 26 the crime involving domestic violence occurred; 27 (D) specified in AS 11.41 and was committed against a 28 person with whom the defendant has a dating relationship or with whom 29 the defendant has engaged in a sexual relationship; or 30 (E) specified in AS 11.41.436(a)(2) and the defendant is 18 31 years of age or older;
01 * Sec. 15. AS 12.63.100(6) is amended to read: 02 (6) "sex offense" means 03 (A) a crime under AS 11.41.100(a)(3), or a similar law of 04 another jurisdiction, in which the person committed or attempted to commit a 05 sexual offense, or a similar offense under the laws of the other jurisdiction; in 06 this subparagraph, "sexual offense" has the meaning given in 07 AS 11.41.100(a)(3); 08 (B) a crime under AS 11.41.110(a)(3), or a similar law of 09 another jurisdiction, in which the person committed or attempted to commit 10 one of the following crimes, or a similar law of another jurisdiction: 11 (i) sexual assault in the first degree; 12 (ii) sexual assault in the second degree; 13 (iii) sexual abuse of a minor in the first degree; or 14 (iv) sexual abuse of a minor in the second degree; 15 (C) a crime, or an attempt, solicitation, or conspiracy to commit 16 a crime, under the following statutes or a similar law of another jurisdiction: 17 (i) AS 11.41.410 - 11.41.438; 18 (ii) AS 11.41.440(a)(2); 19 (iii) AS 11.41.450 - 11.41.458; 20 (iv) AS 11.41.460 if the indecent exposure is before a 21 person under 16 years of age and the offender has a previous conviction 22 for that offense; 23 (v) AS 11.61.125 - 11.61.128; 24 (vi) AS 11.66.110 or 11.66.130(a)(2) if the person who 25 was induced or caused to engage in prostitution was 16 or 17 years of 26 age at the time of the offense; [OR] 27 (vii) former AS 11.15.120, former 11.15.134, or assault 28 with the intent to commit rape under former AS 11.15.160, former 29 AS 11.40.110, or former 11.40.200; or 30 (D) a crime in another jurisdiction that requires the person 31 to register as a sex offender or child kidnapper in that jurisdiction;
01 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 DIRECT COURT RULE AMENDMENT. Rule 16(b)(1)(A), Alaska Rules of 04 Criminal Procedure, is amended to read: 05 (1) Information within Possession or Control of Prosecuting Attorney. 06 (A) Except as is otherwise provided as to matters not subject to 07 disclosure and protective orders, the prosecuting attorney shall disclose the 08 following information within the prosecuting attorney's possession or control 09 to defense counsel and make available for inspection and copying: 10 (i) The names and addresses of persons known by the 11 government to have knowledge of relevant facts and their written or 12 recorded statements or summaries of statements; 13 (ii) Any written or recorded statements and summaries 14 of statements and the substance of any oral statements made by the 15 accused; 16 (iii) Any written or recorded statements and summaries 17 of statements and the substance of any oral statements made by a co- 18 defendant; 19 (iv) Any books, papers, documents, photographs or 20 tangible objects, which the prosecuting attorney intends to use in the 21 hearing or trial or which were obtained from or belong to the accused 22 except for material prohibited under AS 11.41.455(a); material 23 prohibited under AS 11.41.455(a) may be inspected by defense 24 counsel, the defendant, and any expert the defense may use; 25 however, the material shall remain in the custody and control of a 26 law enforcement agency and the prosecuting attorney, and may not 27 be copied or otherwise duplicated by the defense or any other 28 person; and 29 (v) Any record of prior criminal convictions of the 30 defendant and of persons whom the prosecuting attorney intends to call 31 as witnesses at the hearing or trial.
01 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 APPLICABILITY. (a) Sections 1 - 15 of this Act apply to offenses committed on or 04 after the effective date of this Act. 05 (b) Section 16 of this Act applies to offenses committed before, on, or after the 06 effective date of this Act. 07 * Sec. 18. This Act takes effect July 1, 2010.