Legislature(2021 - 2022)GRUENBERG 120
03/27/2021 01:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB5 | |
| HB55 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 5 | TELECONFERENCED | |
| += | HB 55 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
1:09:20 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act
relating to sexual abuse of a minor; relating to sexual assault;
relating to the code of military justice; relating to consent;
relating to the testing of sexual assault examination kits; and
providing for an effective date."
1:09:34 PM
REPRESENTATIVE GERAN TARR, Alaska State Legislature, prime
sponsor, introduced HB 5 with a PowerPoint presentation, titled
"House Bill 5: Defining Sexual Consent" [included in the
committee packet]. She began on slide 2, titled "How was HB 5
drafted?" She explained that the issue was brought to her
attention by Standing Together Against Rape (STAR), an
organization that knew firsthand how the law has failed to
achieve justice for Alaskans who had been raped or sexually
assaulted. She noted that the law in question has not been
updated in forty years. The legislation before the committee
today is the culmination of a two-year process involving
statewide meetings with input from across Alaska, expert
interviews, and feedback from the Department of Law (DOL), which
is reflected in the sponsor substitute (SS) changes. She
discussed her presentation at the statewide meeting for the
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA),
highlighting the significance of receiving their feedback. She
continued to slide 3 and emphasized the importance of doing
"more listening than talking." She said she wanted to
understand what's happening in Alaskan communities; how people
are feeling safe or unsafe; and how this law impacts that
safety.
1:13:07 PM
REPRESENTATIVE TARR turned to slides 4 and 5, which questioned
"Has consent ever been [an] issue for you?" She stated that
every individual at all the forums she hosted or participated in
were asked that question and all, without exception, answered
yes. She moved to slide 6 and addressed consent, noting that it
is not defined in Alaska statute. Instead, AS 11.41.470(8)
defines "Without consent" as follows:
(8) "without consent" 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.
REPRESENTATIVE TARR relayed that this explanation is problematic
for several reasons: firstly, it is not an affirmative
definition; secondly, it suggests a use of force; and thirdly,
it places the burden on the victim. She continued to slides 7
and 8 and reviewed Minnesota and Montana's statutory definitions
of consent, both of which make reference to the phrases: words
or overt actions, freely given arrangement/agreement, and
current/prior social or sexual relationship. Slide 9
highlighted themes in modernized statutes, including an
affirmative definition that contains the following words: freely
given, agreement, reversible, and words/actions. She turned to
slide 10 and presented the new definition proposed in HB 5,
which read:
"Consent" means a freely given, reversible agreement
specific to the conduct at issue; in this paragraph,
"freely given" means agreement to cooperate in the act
was positively expressed by words or action.
REPRESENTATIVE TARR noted that the definition of "freely given"
is one difference in the sponsor substitute from the original
version of the bill at the recommendation of DOL.
1:17:17 PM
REPRESENTATIVE TARR directed attention to slides 11 and 12 and
provided a sectional analysis of the bill, which read as
follows:
Sections 1 and 2: Rape by Fraud
Sections 3 and 4: Predatory behavior by much older
adults engaging in sexual relationships with teenagers
at least ten years younger
Section 5: Addressing circumstances in which consent
can be given
Section 6: New definition of consent
Sections 7 and 8: Updates the definition of consent
Section 9 refers to the updated Military Code of
Justice
Section 10: Requires rape kits be tested within six
months
Section 11: Repeals the old definitions
Section 12: Law applies to crimes committed after the
effective date
Section 13: Effective date for rape kit testing is
July 1, 2023
REPRESENTATIVE TARR explained that Sections 1 and 2 add a new
crime, "rape by fraud," into statute. Rape by fraud suggests
that a person commits sexual assault by pretending to be someone
else. Sections 3 and 4 amend the sexual abuse of a minor
statute. She noted that currently, Alaska law does not
differentiate between a 16-year-old and someone who is 22 or 30
years of age. Section 5 addresses the circumstances in which
consent can be given. She pointed out that the sponsor
substitute includes changes from the previous version, such that
"rape by fraud" language is removed and "professional purpose"
is defined on page 5, lines 8-15, to Section 5, paragraph (2),
for clarity at the recommendation of DOL. She noted that
Section 5, paragraph (3), addresses freezing - a common trauma
response. Sections 7, 8, and 9 are conforming language, as it
relates to the consent definition. She read the summary of
Sections 10-13 and noted that Section 13 accommodates more time
for the effective date for rape kit testing at the
recommendation of the crime lab.
1:24:00 PM
REPRESENTATIVE TARR continued to slide 13 and outlined the
desired outcomes: firstly, to remove dangerous people from
Alaska's communities to prevent them from harming others;
secondly, to educate Alaskans about consent to prevent harm from
happening. She turned to slide 14 and conveyed that HB 5 is the
solution. She detailed a February 10, 2020 KNOM article that
explored "[changing] the law to make prosecution for rape more
possible." The article referenced the law under consideration
in today's meeting and read:
Some said an outdated statute dealing with consent
ensures most sexual assault cases won't result in
convictions. Advocates and survivors say it's time
for some of those laws to change.
1:25:33 PM
REPRESENTATIVE TARR moved to slide 16 and concluded by posing
the following questions:
What is the appropriate criminal justice system
response based on the human suffering caused to the
survivor?
How much of a danger does this person pose to the
community and how long should they be removed from the
community so they can no longer cause harm?
How much do we want to invest to improve public safety
and reduce sexual assault in Alaska?
1:26:14 PM
CHAIR KREISS-TOMKINS opened invited testimony.
1:26:38 PM
LISA ELLANNA, a survivor herself, informed the committee of her
experience as an advocate for survivors of sexual assault. She
recalled that when survivors gathered to provide support for one
another, it became clear that none of their cases were
investigated by the local police department. The group
proceeded to insert themselves in positions on commissions and
boards to spark the conversation around improving the police
department's investigation and training efforts. She explained
that over the course of several years, they encountered heavy
resistance from the police department. The group decided to
take a different approach and bring the issue to a public forum
before the city council, which prompted a cascade of events: 460
cases of sexual assault were revealed, which had been reported
to the police department over the course of decades and went
uninvestigated; the chief of police left the force; and the city
manager resigned. She added that they also began to take a
community approach to the issue and in the process, realized
that Alaska's consent laws are inadequate. She pointed out that
over 90 percent of reported cases did not lead to a conviction.
She acknowledged that the issue is a difficult one. When an
individual tells someone that he/she was a victim of sexual
assault it is often reported to law enforcement, which - if the
system is responsive - inserts the victim into a legal process
that is retraumatizing. She explained that there are fears
associated with reporting [sexual assault] and a lot of weight
is placed on the victim's decision, so rates of reporting are
most likely low. In closing, she stated that this bill needs to
pass. She said it provides context for police to understand
consent and investigate, as well as a mechanism for district
attorneys to provide tools to hold perpetrators accountable.
1:31:10 PM
DARLENE TRIGG informed the committee that she is a community
advocate [for sexual assault] in Nome. She contextualized the
importance of this legislation by explaining what it's like for
women to live in a state that's not safe for them. She conveyed
that victims had lost faith in the police force and criminal
justice system, adding that many victims were assaulted more
than once, which leads to victims saying, "why tell police when
they're not going to do anything anyway." As a result, in Nome
in particular, the current state of affairs is so poor that
victims are often hospitalized for suicide attempts and other
self-destructive coping mechanisms. She said she acknowledges
that living with the current laws creates a culture of safety
for perpetrators. She shared her belief that women do not know
what it is to be safe because they need to put up walls and
always be aware, which holds them back from being productive and
safe community members.
1:33:59 PM
KEELY OLSON, Executive Director, Standing Together Against Rape
(STAR) Alaska, stated that in 2018, STAR's board of directors
formed a policy committee to help educate and inform lawmakers
about existing challenges in the sexual assault statutes
informed by the lived experiences of survivors. One such policy
priority included updating the state's definition of consent.
Given that Alaska has the highest rates of rape in the nation,
she said, it seems logical to provide law enforcement and
prosecutors with more tools to effectively prosecute rape. She
explained that the state's current definition of "without
consent" places the burden on the victim to prove that force or
threats were used; further, it requires the state to try and
prove the victim was incapacitated to the point of being unable
to consent. She pointed out that in practice, this is a very
high burden that leads jurors to expect the victim to have
sustained significant and visible injury, which is often not the
case. A growing understanding of trauma response indicates that
a victim often freezes rather than fighting or fleeing. She
noted that the statute does not account for a victim crying
throughout the assault and not fighting back. She relayed
STAR's additional policy priorities, including urging the state
to do more to protect minors - ages 16 and 17 - from targeted
victimization. She reported that under questioning, offenders
often tell the police that "16-year-olds are fair game,"
suggesting that they are legal, and maintaining that [the
victim] consented, which places the burden of proof on law
enforcement. These cases often involve the offender proffering
teens with alcohol and drugs to render them incapable of escape
and less likely to report for fear of not being believed or, in
some cases, being charged with underaged drinking when they do
report. She said STAR receives numerous calls on its statewide
sexual assault crisis line from parents seeking support and ways
to help their teens who were manipulated into a relationship
with a much older adult. In such cases, the parents are often
powerless to order the adult to stay away from their child. She
pointed out that impressionable youth are often led to believe
by a predatory adult that they are mature and special, which
drives a wedge between them and their family support. In
Alaska, the state only protects teens from adult predatory
behavior if the adult holds a position of authority over the
child. She shared her belief that the state should be doing
more to protect its youth particularly during formative years
rather than treating them as grown adults.
MS. OLSON detailed several cases that involved the use of
trickery or fraud to gain sexual gratification by the offender.
She remarked:
In one case, a woman awoke to her husband spooning her
from behind in bed. As was standard in their intimate
relationship, she reached into the bedside drawer for
a condom, which she provided to her husband over her
shoulder without glancing back. They engaged in
sexual relations. At some point during the encounter,
to her horror, she realized the man in her bed was not
her husband at all. In fact, it turns out he was a
homeless man who snuck into her house through an
unlocked door after her husband left for work early
and climbed into her bed. It's not known and was
never substantiated that he had been stalking and
watching her for some time. As soon as she realized
this man was a stranger she jumped up and called the
police. The suspect fled but was later apprehended.
Since he did not use force, he could not be held
accountable for rape. I believe he was ultimately
prosecuted for illegal entry to her home.
Another case involved a young woman living with her
fianc? and his family. Their room was in a dark
basement. She was in bed one night when her fianc?
entered. She called out his name and he answered
affirmatively. They began engaging in sexual
relations. At some point during the activity, she
came to realize this was not, in fact, her partner,
but rather his brother pretending to be him. She
screamed, he fled, and she reported to law enforcement
with the support of her fianc?. Although the state
attempted prosecution, the offender was acquitted by a
jury because the state could not show force was used
in this case.
MS. OLSON noted that these are just several cases in which fraud
was used to induce consent. She added that the frequency of
such cases is unknown because most do not result in a sex
offense charge, so they remain invisible.
1:40:11 PM
REPRESENTATIVE STORY thanked Ms. Ellanna and Ms. Trigg for
sharing their experiences and expressed her appreciation for
women's advocacy.
1:40:53 PM
TAYLOR WINSTON, Executive Director, Alaska Office of Victims'
Rights (OVR), informed the committee that she is testifying in
support of HB 5 as both the executive director of OVR and a
former state prosecutor of sexual offences. She highlighted her
thirteen years of experience as a state prosecutor, six of which
were spent supervising the sexual offense unit in the Anchorage
District Attorney's office. She noted that as the supervisor,
she screened virtually every sexual offense case that came into
the Anchorage office during those six years. She shared her
belief that amending the statutes, particularly SA1 [Sexual
Assault in the First Degree], SA2 [Sexual Assault in the Second
Degree], SAM1 [Sexual Abuse of a Minor in the First Degree],
SAM2 [Sexual Abuse of a Minor in the Second Degree], and the
definition of "consent," is important and long overdue. She
recalled seeing "quite a few" cases in which these amendments
were needed in her role as a prosecutor. She said the comments
from previous testifiers are encapsulated in her experience,
adding that this legislation would help close a loophole with
regard to SA1 and SA2 in Sections 1 and 2 of the bill. She
agreed with Ms. Olson that it is difficult to quantify the
number of victims that would receive justice from this change,
in part, because if sexual assault is reported, it might not go
further than the level of investigation since the statute does
not allow it. She explained that closing the loophole would
allow those who had been victimized to have justice where they
were previously denied; additionally, it would potentially keep
others from becoming victims.
MS. WINSTON recounted her experience prosecuting a case that
involved fraud. She said upon being handed the case, she
immediately questioned her supervisor about the statutes, saying
"[the victim] appears to consent to the sexual activity, but not
consenting to the person who was doing the sexual activity with
her." Her supervisor reassured her, she prepared the case and
took it to trial. She remembered that the victim, who was
asleep at the time of the assault and thought the defendant was
her fianc?, shared compelling testimony; however, the jury
ultimately acquitted the defendant, providing no justice to the
victim for being violated. She pointed out that the case was
tried on the victim's unawareness of the sexual assault. The
issue of consent, or lack thereof, was also argued. Ultimately,
she said it was a sad case for the victim and the system as a
whole, adding that the loophole should be in the law, which this
bill hopes to cure.
MS. WINSTON addressed Sexual Abuse of a Minor in the First and
Second Degree. She related that the law covers 16 and 17-year-
olds if the perpetrator is in a position of authority but does
nothing for them if the perpetrator is not in such a position.
She stated "yes, we can talk about the age of consent, but the
people who engage in sex with children who are more than 10
years older than them are predators." She added that these are
not people who are looking to form a healthy relationship from
normal interactions, rather, they are people who seek out
children and groom them at a vulnerable age. Furthermore, she
relayed that when the abuse from this older person comes to
light, it has devastating emotional effects, such as suicide,
cutting, drug and alcohol abuse, and other destructive behavior.
It can also create a wedge between the child and his/her family.
She recalled a number of cases that relied on the discretion of
the judge to deem whether the situation was aggravated and might
warrant a higher sentence; however, there was often no
reflection of aggravation through the statutory aggravators, so
there was no justice for the victim. She stressed the "intense
ripple effect" that occurs throughout the victim's life, which
is forever changed. She said it has an immense cost to society
on health and human services, work productivity, and criminal
behavior. She went on to point out that the current [sexual
assault] laws predate the invention of the internet, which has
allowed offenders an easier way to pray on vulnerable children.
In closing, she reiterated that the consent sections are
important because they would provide clarity for jurors and
lessen the burden on victims.
REPRESENTATIVE STORY expressed appreciation for the proposed
solutions and questioned how affirmative consent laws had
impacted other states that adopted them in stopping sexual
assault and predatory behavior.
1:52:12 PM
REPRESENTATIVE TARR said there has been a national review of
consent laws; however, most of the work on this issue is recent.
She indicated that it's too early to understand the impact from
the adoption of new laws in other states.
1:53:31 PM
REPRESENTATIVE CLAMAN conveyed his support for avoiding a
victim-focused trial. He asked whether the proposed definition
of consent would cause more focus on the victim and his/her
history than the current law.
MS. WINSTON clarified that the burden would be shifted from the
victim to the offender. Regarding the shift of focus to the
victim's past behavior in a trial setting, she cited the rape
shield law, which puts the use of past behavior as evidence to
the discretion of a judge. She noted that if the behavior is
recent and involves the same person, it could be used, but a
prosecutor would evaluate the surrounding evidence and related
components. She stated that cases "are apples and oranges"
because each is unique. Ultimately, she opined that [the new
definition] would not cause a greater focus on the victim's
previous behavior.
REPRESENTATIVE CLAMAN sought verification that Ms. Winston
indicated that this bill is unlikely to change the focus that
often occurs in sexual assault cases in any significant way
compared to current law.
MS. WINSTON clarified that she did not mean to suggest that it
won't change the focus. She explained that under the new
definition of consent, there would be less focus on certain
aspects of a victim's behavior than currently, because [the
behavior] wouldn't meet the definition and could even be
precluded from argument. She went on to state that in certain
circumstances, the victim's prior behavior may be relevant as it
relates to consent.
1:59:14 PM
REPRESENTATIVE CLAMAN referencing data from DOL, stated that
"the percentage of declined sexual assault and sexual abuse
cases statewide was running roughly 50 percent declined and
about 50 percent taken for prosecution." He asked Ms. Winston
if during her time actively prosecuting in a statewide
supervisory role, the 50 percent declined case rate was
consistent with her observations.
MS. WINSTON asked Representative Claman if his question pertains
to all sex offenses or just the ones related to this bill.
REPRESENTATIVE CLAMAN replied all sex offenses.
MS. WINSTON noted that without specific numbers from 2004-2010
she could not definitely indicate a percentage; however, she
recalled that the prosecution took around 65-70 percent and the
remainder percentage was declined. She conveyed that the rate
of decline was higher in some areas than others; for example,
Sexual Abuse of a Minor cases were often declined because of the
nature of the evidence.
2:01:25 PM
CHAIR KREISS-TOMKINS asked if the same case involving fraud and
the fianc?'s brother was referenced by both invited testifiers.
MS. WINSTON said she had not spoken with Ms. Olson to compare
notes. She acknowledged that the cases they referenced sounded
similar. She further noted that in her case, she was unable to
charge Sexual Assault in the First Degree for lack of consent
because there wasn't a lack of consent that fit the definition.
Sexual Assault in the Second Degree, however, encapsulates
someone who is asleep or in an altered state and was therefore a
better fit.
2:04:01 PM
BRIAN HOSKEN, Student Services Director, Alaska School
Activities Association (ASAA), informed the committee that he is
a former Anchorage School District administrator with nearly 30
years of experience overseeing comprehensive academics and
activity/athletic programs. Currently, his primary role at the
Alaska School Activities Association (ASAA) is to facilitate the
Coaching Boys into Men (CBIM) program, which is in year two of a
five-year grant. He relayed that CBIM is an evidence-based
comprehensive violence prevention program designed to inspire
coaches to teach their athletes the importance of respect for
themselves, others, and women in particular. The program
incorporates strategies, scenarios, and resources needed to talk
with boys specifically about healthy and respectful
relationships, dating violence, sexual assault, and harassment.
Additionally, CBIM recognized that sports are "[tremendously]"
influential on culture and the lives of young people and was
designed to utilize and leverage the social capital held by
athletes. He opined that the principles of teamwork and fair
play, which are central to athletics, make sports an ideal
platform to teach healthy relationship skills. He continued to
explain that he trains coaches to teach a curriculum designed
for a 12-week sports season in which weekly training lessons are
presented from the coach to the athletes. These weekly teaching
sessions include topics, such as personal responsibility,
insulting language, disrespectful language towards women,
digital disrespect, and understanding consent. He noted that he
looks forward to further developing the definition of consent,
adding that within the CBIM objective, consent is discussed in
regard to respecting personal boundaries in intimate/sexual
activities; furthermore, CBIM objects the use of pressure,
threats, or force in any physical or sexual encounter and
actively opposes incidents of rape, sexual coercion, and
assault. He offered his belief that this bill would further
define and help this particular teaching component. He went on
to discuss the program goals specifically developed for Alaska
by ASAA. He said that many of the topics incorporated by CBIM
and HB 5 mutually validate the need for a preventative
educational component and accountability for perpetrators. He
opined that the clarification and affirmative definition of
consent in this legislation would strengthen the scholastic
elements of CBIM. To conclude, he said he looks forward to the
opportunity to employ a passed HB 5 in coordination with a
statewide implementation of CBIM to further education Alaska's
youth with the objective of eradicating violence towards women.
2:09:17 PM
CHAIR KREISS-TOMKINS questioned where in Alaska CBIM originated.
MR. HOSKEN replied that the CBIM program was developed in
Sacramento, California and has since gone nationwide. He added
that in Alaska, the program was first implemented in Juneau.
2:10:54 PM
REPRESENTATIVE STORY asked Ms. Ellanna how she helps her
community understand the importance of the change being sought.
MS. ELLANA shared her understanding that most of the individuals
who experienced assault and who were part of the effort to bring
this concern forward had been assaulted while under the
influence of alcohol or while asleep, in which case, consent is
implied or inferred under current state law. She stated that
understanding how the current law is written is extremely
frustrating. She went on to add that if this bill were to pass,
the new definition of consent would provide context for the
police and their investigations, as well as a mechanism for
district attorneys to hold perpetrators accountable.
2:13:19 PM
CHAIR KREISS-TOMKINS announced that HB 5 was held over.