CSHB 298(JUD): "An Act relating to the crimes of harassment, distribution and 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 human trafficking or for certain sex offenses; relating to aggravating factors in sentencing; relating to registration as a sex offender or child kidnapper; relating to administrative subpoenas for certain records involving exploitation of children; amending Rule 16, Alaska Rules of Criminal Procedure; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 298(JUD) 01 "An Act relating to the crimes of harassment, distribution and possession of child 02 pornography, and distribution of indecent material to a minor; relating to suspending 03 imposition of sentence and conditions of probation or parole for human trafficking or 04 for certain sex offenses; relating to aggravating factors in sentencing; relating to 05 registration as a sex offender or child kidnapper; relating to administrative subpoenas 06 for certain records involving exploitation of children; amending Rule 16, Alaska Rules 07 of Criminal Procedure; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. AS 11.56.759(a) is amended to read: 10 (a) A person commits the crime of violation by sex offender of condition of 11 probation [OR PAROLE] if the person 12 (1) is on probation [OR PAROLE] for conviction of a sex offense; 13 (2) has served the entire term of incarceration imposed for conviction
01 of the sex offense; and 02 (3) [EITHER 03 (A)] violates a condition of probation imposed under 04 AS 12.55.100(a)(5), (a)(6), or (e), 12.55.101(a)(1), or any other condition 05 imposed by the court that the court finds to be specifically related to the 06 defendant's offense [; OR 07 (B) VIOLATES A CONDITION OF PAROLE IMPOSED 08 UNDER AS 33.16.150(a)(3), (a)(4), (a)(6), (a)(13), (b)(4), (b)(11), OR (f)]. 09 * Sec. 2. AS 11.56.759(c) is amended to read: 10 (c) Violation by sex offender of condition of probation [OR PAROLE] is a 11 class A misdemeanor. 12 * Sec. 3. AS 11.56.840 is repealed and reenacted to read: 13 Sec. 11.56.840. Failure to register as a sex offender or child kidnapper in 14 the second degree. (a) A person commits the crime of failure to register as a sex 15 offender or child kidnapper in the second degree if the person 16 (1) is required to register under AS 12.63.010; 17 (2) knows that the person is required to register under AS 12.63.010; 18 and 19 (3) fails to 20 (A) register; 21 (B) file written notice of 22 (i) change of residence; 23 (ii) change of mailing address; 24 (iii) establishment of an electronic or messaging address 25 or any change to an electronic or messaging address; or 26 (iv) establishment of an Internet communication 27 identifier or any change to an Internet communication identifier; 28 (C) file the annual or quarterly written verification; or 29 (D) supply accurate and complete information required to be 30 submitted under this paragraph. 31 (b) In a prosecution for failure to register as a sex offender in the second
01 degree under (a) of this section, it is an affirmative defense that 02 (1) unforeseeable circumstances, outside the control of the person, 03 prevented the person from registering under (a)(3)(A) of this section or filing or 04 supplying the written notices, verification, and other information required under 05 (a)(3)(B) - (D) of this section; and 06 (2) the person contacted the Department of Public Safety orally and in 07 writing immediately upon being able to perform the requirements described in this 08 section. 09 (c) Failure to register as a sex offender or child kidnapper in the second degree 10 is a class A misdemeanor. 11 * Sec. 4. AS 11.61.118(a) is amended to read: 12 (a) A person commits the crime of harassment in the first degree if 13 (1) the person violates AS 11.61.120(a)(5) and the offensive physical 14 contact is contact with human or animal blood, mucus, saliva, semen, urine, vomitus, 15 or feces; or 16 (2) under circumstances not proscribed under AS 11.41.434 - 17 11.41.440, the person violates AS 11.61.120(a)(5) and the offensive physical 18 contact is contact by the person touching another person's genitals, anus, or 19 female breast, either directly or through clothing. 20 * Sec. 5. AS 11.61.125(a) is amended to read: 21 (a) A person commits the crime of distribution of child pornography if the 22 person distributes in this state or advertises, promotes, solicits, or offers to 23 distribute in this state [BRINGS OR CAUSES TO BE BROUGHT INTO THE 24 STATE FOR DISTRIBUTION, OR IN THE STATE DISTRIBUTES, OR IN THE 25 STATE POSSESSES, PREPARES, PUBLISHES, OR PRINTS WITH INTENT TO 26 DISTRIBUTE,] any material that is proscribed under AS 11.61.127 [VISUALLY 27 OR AURALLY DEPICTS CONDUCT DESCRIBED IN AS 11.41.455(a), 28 KNOWING THAT THE PRODUCTION OF THE MATERIAL INVOLVED THE 29 USE OF A CHILD UNDER 18 YEARS OF AGE WHO ENGAGED IN THE 30 CONDUCT]. 31
01 * Sec. 6. AS 11.61.127(a) is amended to read: 02 (a) A person commits the crime of possession of child pornography if the 03 person knowingly possesses or knowingly accesses on a computer with intent to 04 view any material that visually [OR AURALLY] depicts conduct described in 05 AS 11.41.455(a) knowing that the 06 (1) production of the material involved the use of a child under 18 07 years of age who engaged in the conduct or a depiction of a part of an actual child 08 under 18 years of age who, by manipulation, creation, or modification, appears to 09 be engaged in the conduct; or 10 (2) material appears to include a child under 18 years of age 11 engaging in the conduct. 12 * Sec. 7. AS 11.61.127(c) is amended to read: 13 (c) Each film, audio, video, electronic, or electromagnetic recording, 14 photograph, negative, slide, book, newspaper, magazine, or other material that visually 15 or aurally depicts conduct described in AS 11.41.455(a) that is possessed or accessed 16 in violation of (a) of this section [BY A PERSON KNOWING THAT THE 17 PRODUCTION OF THE MATERIAL INVOLVED THE USE OF A CHILD 18 UNDER 18 YEARS OF AGE THAT ENGAGED IN THE CONDUCT] is a separate 19 violation of this section. 20 * Sec. 8. AS 11.61.127 is amended by adding new subsections to read: 21 (e) In a prosecution under (a) of this section, it is an affirmative defense that 22 the person 23 (1) possessed or accessed fewer than three depictions described in (a) 24 of this section; and 25 (2) without allowing any person other than a law enforcement agency 26 to view the depictions, either took reasonable steps to destroy the depictions, or 27 reported the matter to a law enforcement agency and allowed the agency access to the 28 depictions. 29 (f) In this section, 30 (1) "appears to include a child" means that the material appears to 31 include, or conveys the impression that it includes, a person who is under 18 years of
01 age and the material was not created using a depiction of any part of an actual child 02 under 18 years of age, and 03 (A) the average individual, applying contemporary community 04 standards, would find that the depiction, taken as a whole, appeals to the 05 prurient interest; and 06 (B) a reasonable person would find that the depiction, taken as 07 a whole, lacks serious literary, artistic, political, or scientific value; 08 (2) "computer" has the meaning given in AS 11.46.990. 09 (g) In a prosecution under (a) of this section, the prosecution is not required to 10 prove the identity of a minor depicted or that the defendant knew the identity of a 11 minor depicted. 12 * Sec. 9. 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) the material is harmful to minors; and 27 (3) either 28 (A) the other person is a child under 16 years of age; or 29 (B) the person believes that the other person is a child under 16 30 years of age. 31 * Sec. 10. AS 11.61.128(c) is amended to read:
01 (c) Except as provided in (d) of this section, [ELECTRONIC] distribution of 02 indecent material to minors is a class C felony. 03 * Sec. 11. AS 11.61.128(d) is amended to read: 04 (d) Distribution [ELECTRONIC DISTRIBUTION] of indecent material to 05 minors is a class B felony if the defendant was, at the time of the offense, required to 06 register as a sex offender or child kidnapper under AS 12.63 or a similar law of 07 another jurisdiction. 08 * Sec. 12. AS 11.61.128 is amended by adding a new subsection to read: 09 (e) In this section, "harmful to minors" means 10 (1) the average individual, applying contemporary community 11 standards, would find that the material, taken as a whole, appeals to the prurient 12 interest in sex for persons under 16 years of age; 13 (2) a reasonable person would find that the material, taken as a whole, 14 lacks serious literary, artistic, educational, political, or scientific value for persons 15 under 16 years of age; and 16 (3) the material depicts actual or simulated conduct in a way that is 17 patently offensive to the prevailing standards in the adult community as a whole with 18 respect to what is suitable for persons under 16 years of age. 19 * Sec. 13. AS 12.55.085(f) is amended to read: 20 (f) The court may not suspend the imposition of sentence of a person who 21 (1) is convicted of a violation of AS 11.41.100 - 11.41.220, 11.41.260 22 - 11.41.320, 11.41.360 - 11.41.370, 11.41.410 - 11.41.530, [OR] AS 11.46.400, or 23 AS 11.61.125 - 11.61.128; 24 (2) uses a firearm in the commission of the offense for which the 25 person is convicted; or 26 (3) is convicted of a violation of AS 11.41.230 - 11.41.250 or a felony 27 and the person has one or more prior convictions for a misdemeanor violation of 28 AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction 29 having [SUBSTANTIALLY] similar elements to an offense defined as a misdemeanor 30 in AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person 31 shall be considered to have a prior conviction even if that conviction has been set aside
01 under (e) of this section or under the equivalent provision of the laws of another 02 jurisdiction. 03 * Sec. 14. AS 12.55.100(e) is repealed and reenacted to read: 04 (e) In addition to other conditions imposed on the defendant, while on 05 probation and as a condition of probation 06 (1) for a sex offense, as described in AS 12.63.100, the defendant 07 (A) shall be required to submit to regular periodic polygraph 08 examinations; 09 (B) may be required to provide each electronic mail address, 10 instant messaging address, and other Internet communication identifier that the 11 defendant uses to the defendant's probation officer; the probation officer shall 12 forward those addresses and identifiers to the Alaska state troopers and to the 13 local law enforcement agency; 14 (2) if the defendant was convicted of a violation of AS 11.41.434 - 15 11.41.455, AS 11.61.125 - 11.61.128, or a similar offense in another jurisdiction, the 16 defendant may be required to refrain from 17 (A) using or creating an Internet site; 18 (B) communicating with children under 16 years of age; or 19 (C) possessing or using a computer. 20 * Sec. 15. AS 12.55.155(c)(5) is amended to read: 21 (5) the defendant knew or reasonably should have known that the 22 victim of the offense was particularly vulnerable or incapable of resistance due to 23 advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, 24 or extreme youth or was for any other reason substantially incapable of exercising 25 normal physical or mental powers of resistance; 26 * Sec. 16. AS 12.55.155(c)(18) is amended to read: 27 (18) the offense was a felony 28 (A) specified in AS 11.41 and was committed against a spouse, 29 a former spouse, or a member of the social unit made up of those living 30 together in the same dwelling as the defendant; 31 (B) specified in AS 11.41.410 - 11.41.458 and the defendant
01 has engaged in the same or other conduct prohibited by a provision of 02 AS 11.41.410 - 11.41.460 involving the same or another victim; [OR] 03 (C) specified in AS 11.41 that is a crime involving domestic 04 violence and was committed in the physical presence or hearing of a child 05 under 16 years of age who was, at the time of the offense, living within the 06 residence of the victim, the residence of the perpetrator, or the residence where 07 the crime involving domestic violence occurred; 08 (D) specified in AS 11.41 and was committed against a 09 person with whom the defendant has a dating relationship or with whom 10 the defendant has engaged in a sexual relationship; or 11 (E) specified in AS 11.41.434 - 11.41.458 or AS 11.61.128 12 and the defendant was 10 or more years older than the victim; 13 * Sec. 17. AS 12.63.020 is amended by adding a new subsection to read: 14 (c) A person required to register under AS 12.63.010 for a conviction in 15 another jurisdiction that is not similar to an offense in this state shall register for a 16 period described in 17 (1) (a)(2) of this section if the person has been convicted of only one 18 offense; 19 (2) (a)(1) of this section if the person has been convicted of two or 20 more offenses for which the person is required to register in another jurisdiction. 21 * Sec. 18. AS 12.63.100(6) is amended to read: 22 (6) "sex offense" means 23 (A) a crime under AS 11.41.100(a)(3), or a similar law of 24 another jurisdiction, in which the person committed or attempted to commit a 25 sexual offense, or a similar offense under the laws of the other jurisdiction; in 26 this subparagraph, "sexual offense" has the meaning given in 27 AS 11.41.100(a)(3); 28 (B) a crime under AS 11.41.110(a)(3), or a similar law of 29 another jurisdiction, in which the person committed or attempted to commit 30 one of the following crimes, or a similar law of another jurisdiction: 31 (i) sexual assault in the first degree;
01 (ii) sexual assault in the second degree; 02 (iii) sexual abuse of a minor in the first degree; or 03 (iv) sexual abuse of a minor in the second degree; 04 (C) a crime, or an attempt, solicitation, or conspiracy to commit 05 a crime, under the following statutes or a similar law of another jurisdiction: 06 (i) AS 11.41.410 - 11.41.438; 07 (ii) AS 11.41.440(a)(2); 08 (iii) AS 11.41.450 - 11.41.458; 09 (iv) AS 11.41.460 if the indecent exposure is before a 10 person under 16 years of age and the offender has a previous conviction 11 for that offense; 12 (v) AS 11.61.125 - 11.61.128; 13 (vi) AS 11.66.110 or 11.66.130(a)(2) if the person who 14 was induced or caused to engage in prostitution was 16 or 17 years of 15 age at the time of the offense; or 16 (vii) former AS 11.15.120, former 11.15.134, or assault 17 with the intent to commit rape under former AS 11.15.160, former 18 AS 11.40.110, or former 11.40.200; or 19 (D) a crime in another jurisdiction that requires the person 20 to register as a sex offender or child kidnapper in that jurisdiction; 21 * Sec. 19. AS 44.23 is amended by adding a new section to read: 22 Sec. 44.23.080. Subpoena power of attorney general in cases involving use 23 of an Internet service account in the exploitation of children. (a) In an 24 investigation of an offense under AS 11.41.452, 11.41.455, or AS 11.61.125 - 25 11.61.128 and on reasonable cause to believe that an Internet service account has been 26 used in the exploitation or attempted exploitation of children, the attorney general may 27 issue in writing and cause to be served a subpoena requiring the production and 28 testimony described in (b) of this section. 29 (b) A person receiving a subpoena under (a) of this section shall disclose, for 30 the account that is the subject of the subpoena, 31 (1) the name of the person holding the account;
01 (2) the address associated with the account; 02 (3) local and long distance telephone connection records, including 03 records of session times and durations for the account; 04 (4) length of service, including service start date, and types of service 05 used by the account; 06 (5) the telephone or instrument number or other subscriber number or 07 identifier, including any temporarily assigned network address for the account; and 08 (6) the means and source of payment for the service, including a credit 09 card or bank account number associated with the account. 10 c At any time before the return date specified on the subpoena, the subpoenaed 11 person may petition a court of competent jurisdiction for the judicial district in which the 12 person resides or does business for an order modifying or setting aside the subpoena or for 13 an order sealing the court record. 14 (d) A subpoena under this section must describe the objects required to be 15 produced and must prescribe a return date with a reasonable period of time within which 16 the objects must be assembled and produced. 17 (e) If no case or proceeding arises from the production of records or other 18 documents under this section within a reasonable time after those records or documents 19 are produced, the attorney general shall either destroy the records and documents or return 20 them to the person who produced them. 21 (f) A subpoena issued under this section may be served as provided for service of 22 subpoenas under Rule 45, Alaska Rules of Civil Procedure, or for service of process under 23 Rule 4, Alaska Rules of Civil Procedure. 24 (g) Except as provided in this section, any information, records, or data reported 25 or obtained under a subpoena under this section shall remain confidential and may not be 26 disclosed unless the disclosure occurs in connection with a criminal case related to the 27 subpoenaed materials. 28 * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 DIRECT COURT RULE AMENDMENT. Rule 16(b), Alaska Rules of Criminal 31 Procedure, is amended by adding a new paragraph to read: 32 (9) Restriction on Availability of Certain Material or Property.
01 Notwithstanding (b)(1)(A)(iv) of this rule, the court shall deny any request by the 02 defendant to copy, photograph, duplicate, or otherwise reproduce any property or 03 material that may be illegal or prohibited under AS 11.41.455(a) or defined as "child 04 pornography" under 18 U.S.C. 2256, provided the prosecution makes the property or 05 material reasonably available to the defendant. Property or material shall be deemed to 06 be made reasonably available to the defendant if the prosecution provides, at a 07 prosecution or law enforcement facility, ample opportunity for inspection, viewing, 08 and examination of the property or material by the defendant, the defendant's attorney, 09 and any individual the defendant may seek to qualify to furnish expert testimony at 10 trial. 11 * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 LEGISLATIVE STATEMENT CONCERNING CULPABLE MENTAL STATE. In 14 AS 11.56.840(a), as repealed and reenacted by sec. 3 of this Act, the only culpable mental 15 state required to be proven by the prosecution is the "knowing" requirement in paragraph (2) 16 of that subsection. No other culpable mental state needs to be proven for the other elements of 17 that offense. 18 * Sec. 22. The uncodified law of the State of Alaska is amended by adding a new section to 19 read: 20 APPLICABILITY. (a) Sections 1 - 18 and 21 of this Act apply to offenses committed 21 on or after the effective date of this Act. 22 (b) Sections 19 and 20 of this Act apply to offenses committed before, on, or after the 23 effective date of this Act. 24 * Sec. 23. This Act takes effect July 1, 2010.