Legislature(2021 - 2022)GRUENBERG 120
04/20/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing|| Department of Public Safety, Commissioner | |
| HJR7|| HB73 | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HJR 7 | TELECONFERENCED | |
| *+ | HB 73 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
4:46:07 PM
CHAIR KREISS-TOMKINS announced that the final 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."
4:47:08 PM
The committee took an at-ease from 4:47 p.m. to 4:51 p.m.
4:51:37 PM
CHAIR KREISS-TOMKINS noted that there were experts available to
answer questions pertaining to criminal law and rape kits.
After ascertaining that there were no immediate questions from
committee members, he stated that in Alaska, the legal age of
marriage was 16 or younger with the proper authorization.
4:52:33 PM
REPRESENTATIVE TARR, prime sponsor of SSHB 5, interjected to
note that for 16- and 17-year-olds, marriage required written
parental consent. Marriage involving 14- or 15-year-olds
required written parental consent, as well as a court hearing in
which the parents and the minor child were involved. Permission
from the Superior Court was also required in addition to prove
that the marriage was in the best interest of the minor.
CHAIR KREISS-TOMKINS, in regard to statutory rape, questioned
whether it mattered if the individuals were married.
REPRESENTATIVE TARR understood that sexual assault laws applied
to married couples. She explained that HB 5 included a
provision to account for [sexual assault] involving, for
example, a 16-year-old and a 27-year-old who were unmarried.
CHAIR KREISS-TOMKINS asked Mr. Skidmore to comment on the age of
consent versus age of marriage in Alaska.
4:55:14 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Department of Law, in response to Chair Kreiss-Tomkins,
said he agreed with Representative Tarr's analysis. He
explained that in terms of consent, marriage wasn't a factor in
regard to sexual assault laws. Alternatively, he speculated
that when considering statutory rape of a minor - also referred
to as sexual abuse of a minor (SAM) - [marriage] might be a
factor under SSHB 5 only if the age difference between the two
individuals were more than 10 years. He added that he was
unsure whether marriage would be an exception under those
circumstances.
CHAIR KREISS-TOMKINS requested that Mr. Skidmore follow up with
information on whether a marital exemption exists legally.
4:56:47 PM
JAMES STINSON, Director, Office of Public Advocacy (OPA),
Department of Administration (DOA), understood that there was
not a specific provision for SAM statutes. He noted that there
could be an affirmative defense made for consensual sexual
activity within a marriage in that age range; however, he
maintained that one did not currently exist for SAM charges.
4:57:39 PM
REPRESENTATIVE EASTMAN questioned whether marriages from other
states or jurisdictions with a lower age of consent were
recognized in Alaska.
MR. SKIDMORE answered yes, marriages from other states were
recognized in Alaska; however, he divulged that it was not an
area of law with which he was explicitly familiar.
4:58:36 PM
REPRESENTATIVE CLAMAN sought to confirm that Mr. Stinson had
said that there was no marital defense for a SAM charge at this
time.
MR. STINSON confirmed to the best of his knowledge that that was
correct.
4:59:33 PM
RENEE MCFARLAND, Deputy Public Defender, Public Defender Agency,
Department of Administration, stated that AS 11.41.445 made
marriage an affirmative defense for the purposes of the SAM
statute if the victim was the legal spouse of the defendant
unless the offense was committed without the victim's consent.
REPRESENTATIVE CLAMAN sought to confirm that sexual relations
between a 17-year-old and a 30-year-old would be a crime unless
they were married.
MR. SKIDMORE confirmed that is correct.
REPRESENTATIVE CLAMAN asked for verification that a marriage in
another state at the age of 16 would be valid in Alaska for the
purposes of this affirmative defense.
MR. SKIDMORE answered yes.
5:02:05 PM
REPRESENTATIVE VANCE asked for confirmation that the bill was
proposing "that anything less than 10 years with a minor under
the age of 18 would no longer be considered statutory rape."
MR. SKIDMORE attempted to clarify the question.
REPRESENTATIVE VANCE inquired about the statutory rape statutes.
MR. SKIDMORE explained that SAM statutes indicated that minors
did not have the ability to consent at age 13, 14 or 15 when
there was a certain age gap between the offender and the victim.
For those minors (ages 13, 14, or 15), the proposed legislation
would make it a higher-level offense when the age gap between
the victim and the offender was 10 years; additionally, with a
10-year age gap between the victim and the offender, the bill
would add a conduct if the victim were 16 or 17.
CHAIR KREISS-TOMKINS concluded that under present law, a 16-
year-old could have consensual sex with a 26-year-old (or
someone older) and a 17-year-old could have consensual sex with
a 27-year-old (or someone older); however, should the bill pass,
those sexual relations would constitute SAM in the first degree.
5:05:08 PM
REPRESENTATIVE VANCE requested a visual representation of
present statutes compared to the proposed legislation to better
understand the implications of the bill.
REPRESENTATIVE TARR directed attention to Section 4, paragraph
(1), on page 3, lines 27-31 of SSHB 5. She explained that for
ages 13, 14, and 15, the bill would increase the "penalty" if
the age gap [between the victim and the offender] were 10 or
more years. Additionally, for 16- and 17-year-old victims, the
bill would create a crime if the age gap between the victim and
the offender were 10 or more years.
CHAIR KREISS-TOMKINS pointed out that there could be scenarios
in which a 17-year-old and a 27-year-old were in a consensual
sexual relationship. He understood that SAM 1 was an
unclassified felony with a minimum of 20 years in prison;
therefore, per previous conversations about rates of
incarceration and proportionality, he said he wanted to flag
that as an area that was slightly concerning.
REPRESENTATIVE TARR said in regard to the sentencing ranges, she
was trying to work with a number of organizations to balance
victims' rights against offenders' rights. She relayed that on
average, perpetrators of child sexual abuse had more than 100
victims; further, there was no standard for effective treatment.
She added that reoffending and recidivism were common for sex
offenses. She stated that the level of harm was troubling and
expressed her hope that as a result of changing the laws, high-
frequency perpetrators would be incarcerated.
5:11:30 PM
REPRESENTATIVE CLAMAN sought to confirm that presently, a 16- or
17-year-old could legally engage in sexual relations with a 30-
year-old.
MR. SKIDMORE replied yes, as long as the sexual conduct was
consensual. He added that no SAM statute specified that a 16-
or 17-year-old could not consent.
REPRESENTATIVE CLAMAN inquired about DOL's position on the bill
in its current form.
MR. SKIDMORE replied that DOL was neutral.
REPRESENTATIVE CLAMAN asked whether there had been any research
on the potential impact of this bill on Native communities,
which were already overrepresented in the Department of
Corrections (DOC).
REPRESENTATIVE TARR answered yes and explained that she had
worked closely with Alaska Native women in drafting the proposed
legislation to reflect their experiences. More recently, she
reported, she worked with the Alaska Native Justice Center, as
well as the Alaska Network on Domestic Violence and Sexual
Assault. She maintained that the goal was to listen to
survivors and incorporate their personal experiences in balance
with the criminal justice system response.
REPRESENTATIVE CLAMAN said he appreciated that response, but it
lacked statistical data on the real overrepresentation of
minority communities in Alaska's jails. He asked about a
statistical analysis on how the bill would impact the prison
population.
REPRESENTATIVE TARR answered that she did not possess the
resources to conduct such research. She maintained that her
strong support for human rights and survivors was always
reflected in the legislation she sponsored.
5:14:34 PM
REPRESENTATIVE VANCE inquired about the percentage of sexual
assault offenders in DOC facilities. She reported that at least
59 percent of Alaska women had experienced violence in an
intimate relationship. She relayed that her constituents would
want to exercise the full extent of the law against sexual
assault crimes especially against children. She opined that
Alaskans were not thinking about the prison "capacity" when it
came to justice for crimes against children. She urged her
fellow lawmakers to take those beliefs into account.
CHAIR KREISS-TOMKINS asked Ms. Meade to estimate the percentage
of inmates that were incarcerated in Alaska correctional
facilities for crimes of sexual misconduct.
5:16:53 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, declined to estimate that figure
and deferred the question to DOC.
REPRESENTATIVE VANCE questioned the percentage of sexual crimes,
either fully prosecuted or not, that came through the courts.
MS. MEADE offered to follow up on the number of sexual
misdemeanors and felonies that were filed.
5:17:51 PM
REPRESENTATIVE CLAMAN explained that his prior request for data
stemmed from apprehension about the consistently increasing
prison sentences without any meaningful benefit in terms of
public safety. He expressed his concern about the impending
impacts on minority communities. He acknowledged Representative
Vance's comments and the importance of imposing "no mercy"
against some crimes; however, he recalled his experience in
rural communities where the threat of 15- or 20-year sentences
factor into people's unwillingness to come forward. He conveyed
apprehension about the idea of incarcerating a 30-year-old who
was engaging in consensual sex with a 17-year-old and sending
him/her away for a minimum of 20 years on an unclassified
felony. He reiterated that he asked the data related questions
to better understand the impact that these decisions would have.
He maintained his belief that the intention of the proposed
legislation was well placed, but he was not sure it would result
in the desired effect.
REPRESENTATIVE TARR said she agreed with Representative Claman
and Representative Vance. She recalled that when she initially
presented the legislation, she had questioned the appropriate
"criminal justice response" and the appropriate length of
incarceration to no longer cause harm. She said she was not
capable of answering that alone or hearing the stories of human
suffering. She reiterated that she was asking for help and
emphasized that she would be receptive to ideas. She further
noted that she had considered a sentence of 7-10 years for
first-time offenders. She expressed her hope that as a woman
who had never felt safe living in Alaska, the legislature would
give the proposed legislation serious consideration and evaluate
the human rights of everyone involved.
5:22:57 PM
CHAIR KREISS-TOMKINS asked Mr. Skidmore to speak to the data on
declined prosecutions and why they occur; additionally, he asked
to what extent an insufficient definition of consent was a
factor.
MR. SKIDMORE said he did not know the rate of declinations;
however, the vast majority of declinations were due to
insufficient evidence, he reported. He explained that much of
that was associated with the nature of sexual assault, where
they occur, and the type of evidence that was generally
available. He opined that changing the definition would not
change the ability to accept a significantly higher number of
cases for evidentiary reasons; nonetheless, it would allow cases
that had been declined as a result of "a lack of use of force or
coercion" to be accepted. He shared his belief that it would be
challenging to provide a statistic analysis of how [the proposed
legislation] would increase cases, noting that the same
challenges would continue to exist because many sexual assaults
occur between two individuals only; therefore, changing the
definition would not likely change the evidence of consent
that's available. He added that despite the continuous
challenges, [DOL] was working on ways to improve investigatory
practices and prosecutorial training. He concluded by
reiterating that sexual assault would continue to be a difficult
crime to prosecute.
CHAIR KREISS-TOMKINS sought to confirm that Mr. Skidmore had
stated that the reason many prosecutions were declined was due
to a deficit of evidence rather than the deficient definition of
consent.
MR. SKIDMORE confirmed that is correct. He went on to explain
that the numbers indicated that there was a significant
difference in the number of cases reported to law enforcement
compared to the number of cases referred to DOL. He added that
he was unsure of whether the unreferred cases were driven by the
definitional problem or a lack of evidence. For that reason, he
said he was hesitant to definitively quantify the proposed
legislation's potential impact.
5:28:56 PM
REPRESENTATIVE CLAMAN understood that the present definition
that had been applied both by law enforcement officers and the
prosecutor's office was based on the court analysis of the
statute rather than the statutory language itself. He asked
whether that was correct.
MS. MCFARLAND replied that she was not aware of many cases in
which the court had strayed too far from the language in the
statute. Further, she relayed that the court had read a
requirement into the sexual assault statutes regarding a
defendant's reckless disregard of lack of consent, which was not
provided in the statute itself.
REPRESENTATIVE CLAMAN recalled hearing that the consent language
focused the inquiry more on the victim and less on the offender
by inviting the defense to raise questions about how the victim
may or may not have communicated his/her consent or thereof in
the past. He asked if the statute change would put more focus
on the victim or the offender.
MR. SKIDMORE said he did not have a sense whether this would
change how the defense bar sought to defend sexual assault
cases. He opined that the issue of consent was a question of
the perpetrator's assessment of that lack of consent; however,
talented and creative defense attorneys could return to how that
assessment was influenced by a victim's words or conduct. He
said it would always be one of the issues involved in litigating
these types of cases.
5:33:14 PM
REPRESENTATIVE CLAMAN asked whether the proposed changes to the
consent law would put more focus on the victim compared to the
current statute.
MS. MCFARLAND relayed that the Public Defender Agency believed
that compared to the current definition, the proposed changes
would switch the focus to the victim. She added that the
present statute focused on the defendant's conduct of coercing
the victim, whereas the proposed definition entails a freely
given reversible agreement. She opined that switching from
whether the defendant coerced the conduct to whether there was a
freely given agreement would shift the focus from the
defendant's conduct to the victim.
REPRESENTATIVE CLAMAN asked Ms. McFarland to illustrate her
previous statement with a hypothetical scenario.
MS. MCFARLAND said it was hard to come up with a hypothetical on
the spot because the proposed definition expanded the type of
conduct that would fall under the statute.
REPRESENTATIVE CLAMAN directed the question to Mr. Stinson.
5:36:28 PM
MR. STINSON advised that currently there is a "rape shield
statute" that prevents impermissible evidence from being
admitted. An example of impermissible evidence is to state that
because a victim had sexual relations with certain people, they
are therefore likely to have had sexual relations with the
defendant. He continued:
But evidence of a victim's prior sexual conduct is
admissible if it's relevant to a material issue in the
case. So, for example, if their individual
relationship had a certain type of consent or certain
types of ritual or habit - that might be admissible.
I think when you're dealing with affirmative consent,
there is at least the possibility that a creative
attorney could make the argument that what they're
seeking to admit is testimony from other people who
may have been a partner of that person who ... had
consent in a certain way from that victim. And, so, I
think the argument there would be, we're not admitting
this for the purpose of showing that because the
victim had sexual relations with these other people
that therefore, it's likely that she also consented to
the defendant. ... For example, "This person always,
wink, says these words and does this, and that's their
signal that they are ready to engage in relations."
If in a small community you had people that had
testimony like that, I could see that there would be
an argument before a trial court judge that the manner
of affirmative consent is what you're seeking to admit
and that its irrelevant because the defendant had
awareness that that was the type of affirmative
consent that that person gives and that it was the
same type of affirmative consent given in the past.
So, I can see an attorney making that type of
argument. ... I think that that is an example of how
it potentially bends ... the rape shield law.
REPRESENTATIVE CLAMAN proposed a hypothetical scenario in which
a person met another individual in a bar wherein they drank and
danced "suggestively" before going back to one of their homes
and engaging in [sexual] relations. The next night the same
person engaged in similar conduct with a different person who
had witnessed the actions of the prior night, which was followed
by an allegation of nonconsensual sex. He asked whether this
was the kind of scenario that Mr. Stinson had referenced.
MR. STINSON said Representative Claman's scenario would be more
tenuous and would become fact specific about what actually
happened after the bar. He explained that the scenario he [Mr.
Stinson] had posed was alluding to a community reputation. He
reiterated that these scenarios typically become fact specific
and whether a trial judge would admit evidence of that would
depend on those specific facts.
5:41:33 PM
REPRESENTATIVE VANCE asked whether the law was more inclined to
lean on the victim's reputation or whether he/she gave consent.
MR. STINSON stated that the law was "absolutely designed" to
look at whether or not the individual gave consent. He added
that the purpose of the rape shield statute was to prohibit
generalized evidence of somebody's "reputation" in the
community. He explained that these scenarios were being
examined on whether a pattern of specific types of affirmative
consent would rise to a level of relevancy that a court could
admit with a change in the law.
MR. SKIDMORE agreed with Mr. Stinson that the rape shield law
was designed to protect against someone's reputation. As a
prosecutor, he maintained that just because a person agreed to
sleep with one person did not mean that they agreed to sleep
with someone else. He continued to explain that just because an
individual engaged in an activity, such as dancing, with one
person, it could not be construed as consent. He concluded that
this law was trying to convey that affirmative consent must be
sought. Further, he believed that if this law were to pass,
there would be more litigation around the rape shield statute
and many defense lawyers would attempt creative arguments to
admit different types of evidence. Whether or not courts admit
it, he said, would be fiercely litigated.
CHAIR KREISS-TOMKINS asked if the legislature were to adopt a
definition of affirmative consent for sexual relationships, how
consent while given in an impaired state would be seen under the
law.
5:45:45 PM
MR. SKIDMORE explained that he had not seen any case law
suggesting that intoxication created the inability to consent.
Nonetheless, he said it was possible to drink to the point in
which someone was not capable of consenting. He added that the
law examined when a person became incapacitated from the level
of intoxication. Further, he said he was unsure how the courts
would ultimately interpret this issue in terms of the proposed
definition of freely given consent. He maintained he could not
imagine that simply because one person had one or two drinks of
alcohol, that he/she was incapable of consenting. He conveyed
that it was still incumbent upon the defendant to recklessly
disregard a substantial and unjustifiable risk that there was
not consent. He defined "reckless" as "the disregard of a
substantial and unjustifiable risk that that circumstance
exists." He further noted that recklessness in its definition
was from the perspective of the sober person; therefore, if the
defendant was intoxicated, they were still evaluated from the
standpoint of a sober person.
5:48:23 PM
CHAIR KREISS-TOMKINS sought to confirm that Mr. Skidmore had
suggested that if an individual had been drinking and gave
consent, the courts would adjudicate where the line was between
incapacitation, which would constitute sexual assault, and
freely given consent. He asked whether that was a fair summary.
MR. SKIDMORE confirmed it was. He added that at some point,
courts would provide guidance to the jury, which allowed them to
decide on whether the facts as they were presented met the
elements of the offense.
CHAIR KREISS-TOMKINS asked Mr. Stinson how intoxication would
relate to freely given affirmative consent.
MR. STINSON agreed with Mr. Skidmore that if intoxication did
not amount to incapacitation, then the individual should be able
to give consent; however, he noted that there could be fact-
specific scenarios that cause pause.
CHAIR KREISS-TOMKINS inquired about "sex with an incapacitated
person" under current law.
MR. STINSON believed that sexual assault [in the second degree]
was a class A felony; therefore, engaging in sexual relations
with an individual who was asleep or incapacitated was illegal
and considered sexual assault.
REPRESENTATIVE TARR pointed out that Section 5, paragraph (1),
of SSHB 5 was intended to address Representative Claman's line
of questioning regarding the rape shield law, as referencing an
individual's "reputation" was often how survivors were attacked
in the court room.
5:53:05 PM
CHAIR KREISS-TOMKINS considered a scenario in which a married or
unmarried couple had a healthy, consensual relationship. He
asked how those cases would be treated when there was no word or
action of affirmative consent, but it was a consensual sexual
encounter between the two individuals.
MR. SKIDMORE said the bill was written to consider words,
conduct, and the totality of the circumstances. He believed
that those factors in addition to the previous relationship,
conduct, and understanding between the individuals would all
play into whether there was a substantial and unjustifiable risk
that there was not consent in that particular circumstance. He
reiterated that all of that would be taken into consideration
and should be able to protect against a misunderstanding. He
opined that those considerations would also make some cases more
difficult for prosecution to prove; nonetheless, he believed it
was the only way that this could truly be approached from both a
policy and a legal perspective.
MR. STINSON conveyed some concern from the defense perspective
that adding "specific to the conduct at issue" and the
additional definition of "freely given" would compartmentalize
each sexual contact or separate the course of sexual conduct.
He said it seemed to suggest that a positively expressed word or
action would be necessary for every step of the way. He
concluded that the defense perspective was fearful of whether
normative sexual conduct could be captured. He remarked:
I understand that you would still have a reckless
mental state. I guess the question I would pose is
that if it has to be specific to the conduct at issue
and if it has to be positively expressed by word or
action then, I think, it's difficult at least on paper
to say that you wouldn't be reckless going up and
having sexual contact with somebody without a
positively expressed word or action because it's
specific to the conduct at issue.
MR. STINSON said he would be happy to hear Mr. Skidmore's
perspective as to whether it would be a reckless action by
default to ever presume consent, even within the context of a
relationship, arguably.
MR. SKIDMORE understood the concept expressed by Mr. Stinson;
however, he said he fundamentally disagreed on the basis that
within a relationship with that level of consent, the
individuals typically knew that certain things were okay. He
conveyed that he had difficulty imagining a situation involving
two people in a long-term relationship being submitted to law
enforcement and prosecutors, or that a jury would find beyond a
reasonable doubt that there wasn't affirmative consent by words
or conduct due to the history that would be found within that
relationship. Nonetheless, he said that issue had been a topic
of conversation amongst prosecutors.
6:00:18 PM
CHAIR KREISS-TOMKINS questioned how the history of a healthy,
consensual relationship would be taken into account if that was
not allowable with the rape shield law.
MR. SKIDMORE explained that the rape shield law protected
against bringing in instances of sex with a different person.
He reiterated that the rape shield law was intended to protect
against the assumption that just because an individual had been
willing to engage in sexual conduct with one or more partners,
he/she was willing to engage in sex with literally anybody. He
argued that he could find a case that allowed previous sexual
conduct between the same people to be deemed relevant in a case
of sexual conduct.
6:02:14 PM
REPRESENTATIVE CLAMAN returned to the topic of intoxication. He
referenced AS 11.81.630, as well as the definition of
"knowingly" in AS 11.81.900(a)(2) and "reckless" in AS
11.81.900(a)(3), all of which were focused on intoxication as a
defense raised by the defendant. He sought to confirm that that
the defendant was considered as if he/she were sober. He asked
whether that was correct.
MR. SKIDMORE replied in the affirmative. He explained that in
considering intoxication as a defense, the focus was on how
intoxication impacted the defendant's ability to form the
required "mens rea," or mental element. Further, he was unsure
how the question of whether intoxication or any consumption of
alcohol would impact a victim's ability to provide consent would
be answered.
REPRESENTATIVE CLAMAN clarified that he was not asking about the
extreme scenarios in which an individual may have been on the
margin of being able to give consent because of the level of
intoxication. He inquired about someone who was considered a
"happy drunk" and whether that would be meaningful in whether
that person would be able to give consent.
MR. SKIDMORE answered yes, both the level of the victim's
intoxication and whether he/she was consenting in that
circumstance would be considered. He said he did not see
anything that would suggest that simply because that person had
been drinking, it took away his/her ability to consent.
CHAIR KREISS-TOMKINS asked Mr. Stinson to comment from the
defense bar perspective.
6:06:52 PM
MR. STINSON agreed with Representative Claman that it was
designed to prevent a defendant from arguing that a mental state
was not met due to intoxication, which only happened with
specific intent crimes. He explained that while he agreed with
Mr. Skidmore that there was not a legal bar for the victim to
consent in that scenario, the defendant would be looked at
potentially as a sober person and whether he/she consciously
disregarded the substantial and unjustifiable risk that there
was not affirmative consent. He concluded that a "happy drunk"
who was not incapacitated could give consent; further, a
defendant would not be able to use intoxication as any kind of
defense for misperceiving consent.
MS. MCFARLAND opined that the proposed legislation would likely
increase the amount of litigation in these cases, as it would
present many questions about what it means to consent and how
intoxication plays into that.
6:10:39 PM
MS. MCFARLAND in response to a question from Representative
Claman, said the state would consider the conduct at the time
and would have to prove that there was not consent and that the
defendant recklessly disregarded that consent.
REPRESENTATIVE TARR pointed out that the fiscal notes indicated
that the proposed legislation would result in additional
litigation. Further, she emphasized that women were not
included in the process of drafting the current laws [regarding
sexual assault] nor were they involved in the consideration of
this policy. Additionally, as a disproportionate number of
survivors were women, she said she wanted to make sure that
their voices were not lost. She believed that women wanted
affirmative consent because in the current form of the law,
their right to consent had already been taken away. She
referenced the 50-60 letters of support and opined that the
proposed legislation should advance in the interest of public
safety.
6:13:30 PM
CHAIR KREISS-TOMKINS believed that members were united on the
desired outcome; however, he wanted to ensure that he was
confident in understanding the framework when considering
legislation that involved changes to criminal law. He noted his
appreciation for the passion Representative Tarr had given to
this issue for many years.
REPRESENTATIVE TARR further clarified that in the possibility
the legislative record would be looked to in future litigation
regarding the definition of affirmative consent, the intent was
not to require a verbal agreement for each [compartmentalized]
act during a sexual encounter. She added that words, actions,
and the totality of the situation were intended to be included.
6:15:09 PM
CHAIR KREISS-TOMKINS directed the following question to Mr.
Stinson:
If you have a couple in a healthy consensual
relationship and ... one person is looking to initiate
a sexual encounter and ... they put their hand on the
other person in a sexual manner, which falls within
the scope of some of the sexual misconduct laws in the
hopes of initiating ... sex. How do you look at that
in terms of [whether that would fall] within the
definition of sexual misconduct and affirmative
consent framework and where are the lines?
MR. STINSON acknowledged that the legislative perspective was
helpful to state on the record because the goal was not to
criminalize normative sexual behavior. That being said, he
expressed concern that within the affirmative consent framework,
the ultimate goal was to ensure that one party wouldn't have to
do something to express the fact that he/she was not consenting;
instead, he/she would have to do something that would
[affirmatively] express consent. He explained that in looking
at a normative sexual relationship between two people, they may
initiate sexual contact without any prompting or consent
specific to the conduct at issue. He said typically, within
those types of relationships, a person would either respond
positively or negatively. At that point, in a committed
relationship, even sexual contact could rise to the level of
criminality if an indication to stop was not listened to. He
maintained that the defense was concerned that a plain reading
of the proposed legislation could be interpreted counter to the
legislature's desired outcome. He continued to convey that the
definition of affirmative consent in the bill seemed to suggest
that there would have to be some initiation on the part of the
person receiving the sexual contact or sexual advance. He
concluded that ultimately, deciding whether to further clarify
that language would be a policy call on behalf of the
legislature. Additionally, he surmised that the "conduct at
issue" was included in the legislation to capture the scenario
in which a person neither gave expressed consent to progress to
another level nor resisted or said "stop." He said it would
also be up to lawmakers to decide what responsibility, if any,
would be on another party to object to a course of sexual
contact at a given time.
6:20:36 PM
REPRESENTATIVE STORY expressed her appreciation for the
discussion and shared her belief that something had to be done
about the definition [of consent]. She expressed her hope that
the committee would continue its work on the proposed
legislation to ensure that everyone was comfortable with the
final product.
REPRESENTATIVE CLAMAN observed that sometimes hearings raise
more questions than answers. He said he would prefer the
opportunity to follow up and reflect on some of these questions.
REPRESENTATIVE VANCE asked Representative Tarr why the language
"competent person" and "may be reversed at any time for any
reason" was not included in the bill.
REPRESENTATIVE TARR stated that the original definition [of
consent] included "by a competent person"; however, the language
was removed after conversing with DOL about the statutory
redundancy of mental state, which was addressed in sexual
assault in the second degree, she relayed. She explained that
"reversible" was included in the definition to maintain
consistency with the current education regarding consent. She
said the goal was to utilize the right language to allow for
effective prosecution of sexual assault crimes; therefore, if
"specific to the conduct at issue" would be legally problematic,
it shouldn't be included.
6:27:04 PM
CHAIR KREISS-TOMKINS announced that SSHB 5 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| James Cockrell Resume_Redacted.pdf |
HSTA 4/20/2021 3:00:00 PM |
|
| HJR 7 Fiscal Note - 1-2-021821-GOV-N.PDF |
HSTA 4/20/2021 3:00:00 PM |
HJR 7 |
| HJR 7 Transmittal Letter - 01.19.21.pdf |
HSTA 4/20/2021 3:00:00 PM |
HJR 7 |
| HJR 7 Version A.PDF |
HSTA 4/20/2021 3:00:00 PM |
HJR 7 |
| HB 73 Fiscal Note - 1-2-021821-REV-N.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Fiscal Note - 2-2-021821-GOV-Y.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Fiscal Note - 3-2-021821-GOV-Y.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Transmittal Letter - 01.19.21.pdf |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HB 73 Version A.PDF |
HSTA 4/20/2021 3:00:00 PM |
HB 73 |
| HJR 7 and HB 73 Hearing Request Memo.pdf |
HSTA 4/20/2021 3:00:00 PM |
HB 73 HJR 7 |
| HJR 7 and HB 73 PowerPoint - Dept of Revenue 041921 - Final.pdf |
HSTA 4/20/2021 3:00:00 PM |
HB 73 HJR 7 |