Legislature(2021 - 2022)GRUENBERG 120
05/04/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB163 | |
| SB28 | |
| HJR7 | |
| HB73 | |
| HB124 | |
| HB142 | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 28 | TELECONFERENCED | |
| += | HJR 7 | TELECONFERENCED | |
| += | HB 73 | TELECONFERENCED | |
| *+ | HB 124 | TELECONFERENCED | |
| += | HB 142 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 163 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
5:31:33 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."
CHAIR KREISS-TOMKINS resumed the discussion on Amendment 4,
which had been introduced for consideration during the previous
bill hearing on 4/27/21 [when the motion by Representative Tarr
to adopt Amendment 4 was left pending with an objection by
Representative Eastman.]
5:32:59 PM
REPRESENTATIVE TARR, prime sponsor of HB 5, [renewed her motion]
to adopt Amendment 4 to SSHB 5, labeled 32-LS0065\G.6 Radford,
4/26/21, which read:
Page 2, line 9:
Delete "who is"
Insert "whom the offender has"
Page 2, line 11, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual penetration if
the person knew the offender's real identity"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 2. AS 11.41.410(b) is amended to read:
(b) Sexual assault in the first degree,
(1) under (a)(1) - (4) of this section, is
an unclassified felony and is punishable as provided
in AS 12.55;
(2) under (a)(5) of this section, is a
class A felony and is punishable as provided in AS
12.55."
Renumber the following bill sections accordingly.
Page 2, line 31:
Delete "who is"
Insert "whom the offender has"
Page 3, line 2, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual contact if the
person knew the offender's real identity"
Page 6, line 19, following "AS 11.41.420(a), ":
Insert "AS 11.41.420(b), as amended by sec. 2 of
this Act,"
Delete "sec. 2"
Insert "sec. 3"
Delete "sec. 3"
Insert "sec. 4"
Page 6, line 20:
Delete "sec. 4"
Insert "sec. 5"
Page 6, lines 20 - 21:
Delete "sec. 5"
Insert "sec. 6"
Page 6, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 6, line 22:
Delete "sec. 7"
Insert "sec. 8"
Delete "sec. 8"
Insert "sec. 9"
Page 6, line 23:
Delete "sec. 9"
Insert "sec. 10"
Page 6, line 24:
Delete "sec. 11"
Insert "sec. 12"
Page 6, line 25:
Delete "secs. 1 - 9 and 11"
Insert "secs. 1 - 10 and 12"
Page 6, line 26:
Delete "Section 10"
Insert "Section 11"
REPRESENTATIVE EASTMAN [renewed his objection] for the purpose
of discussion.
5:33:13 PM
REPRESENTATIVE TARR highlighted the three objectives of
Amendment 4: to clarify the language in the rape by fraud
provision; to reclassify the crime of rape by fraud from an
unclassified felony to a class A felony; and to reclassify
sexual contact by fraud to a class B felony. Additionally, she
said she would consider the change of "physical identity" to
"actual identity" as a friendly amendment, per the committee's
discussion in the previous bill hearing.
CHAIR KREISS-TOMKINS noted that he may be the "odd one out" in
terms of the relative benefits of "actual" versus "physical".
5:35:32 PM
REPRESENTATIVE EASTMAN suggested replacing "physical" [identity]
with "personal" [identity].
REPRESENTATIVE TARR said she would appreciate an attorney's
input on the wordsmithing to avoid any unintended consequences.
5:36:29 PM
JAMES STINSON, Director, Office of Public Advocacy (OPA),
Department of Administration, defined "actual" as "existing in
fact," or "contrasted with what as intended, expected, or
believed." He acknowledged that "actual identity" could be
perceived as relatively broad, as its meaning was somewhat all-
encompassing. Further, he believed "actual identity" could be
confusing, as the following language would read "not on
characteristics, traits, or accomplishments", which were
sometimes considered part of a person's actual identity. He
added that he understood the intention behind "personal
identity" too, as "personal" was generally defined as "belonging
to a particular person rather than anyone else." Ultimately, he
believed that "physical identity" seemed to capture the
legislative intent and understood why it was initially chosen.
5:38:51 PM
REPRESENTATIVE EASTMAN remarked:
Physical identity - does it have to be a specific
person that we can have a name for, or is it also a
violation if it's someone they don't know versus
someone they do know?
5:40:34 PM
MR. STINSON posed the following hypothetical in an attempt to
clarify the question from Representative Eastman:
Would it be someone meeting online getting "catfished"
where it's somebody that actually knows them, but
they're impersonating a different identity? And then
there's somehow a meetup, where for some reason,
they're not able to see the person and they have
potential sex and then lights come on and they realize
its actually somebody known to them? Is that ... sort
of what you're getting at?
REPRESENTATIVE EASTMAN said he was inquiring about situations in
which the [offender] was not seen physically due to darkness,
smoke, or a physical barrier, for example. He asked whether
"physical" would capture a scenario where someone was intending
to avoid contact with a known individual; however, after the
fact, it turned out to be an individual that he/she knew.
5:42:03 PM
MR. STINSON said it would depend on the specifics of the
scenario. He explained that if it were a situation in which
someone was ambiguous about who they were engaging in sexual
intercourse with but was otherwise consenting, [the proposed
legislation] would not capture that. He reiterated that
Amendment 4 was intended for a circumstance where someone was
impersonating another physical person that was known to the
victim and thereby gets his/her consent.
5:43:31 PM
REPRESENTATIVE EASTMAN sought to clarify the class B felony
reclassification, which did not appear to be specifically
represented in the language in Amendment 4.
REPRESENTATIVE TARR said she did not understand the question.
REPRESENTATIVE EASTMAN sought to understand how the proposed
amendment was reclassifying sexual contact by fraud to a class B
felony.
REPRESENTATIVE TARR replied, "It should insert it into the
section where it's the sexual assault in the second degree,
because sexual assault in the second degree is a class B felony.
And that is not otherwise ... in the bill, but that should be
the place where it gets inserted in statute."
REPRESENTATIVE EASTMAN directed his previous question to a
drafter from Legislative Legal Services to better understand how
that reclassification was occurring within Amendment 4.
5:45:04 PM
CLAIRE RADFORD, Attorney, Legislative Legal Services,
Legislative Affairs Agency, explained that Amendment 4 would
insert a new Section 2 into the bill, which would make sexual
penetration by fraud a class A felony. Sexual contact by fraud
was in the crime of sexual assault in the second degree, which
was presently a class B felony and would not be altered by the
amendment.
5:45:35 PM
REPRESENTATIVE KAUFMAN redirected the discussion back to
"actual" versus "physical".
REPRESENTATIVE TARR noted that the present wording was "physical
identity"; however, "true" and "real" had also been suggested.
She pointed out that "real identity" was utilized on line 9 of
Amendment 4.
5:47:19 PM
REPRESENTATIVE VANCE asked whether the existing language of
"real identity" on line 9 and "physical identity" on line 6
would sufficiently capture the legislative intent or if further
clarification were necessary.
MR. STINSON reiterated that he found comfort in the word
"physical" because the legislature was not trying to make it a
crime for someone to lie about his/her "real identity" or "true
identity" but was trying to stop a person from impersonating
another physical person that was known to the victim. He added
that he would not have an issue with "real physical identity" if
the committee wanted to add that qualifier on line 6.
REPRESENTATIVE TARR asked Mr. Skidmore to respond.
5:49:41 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Department of Law, said the challenge with all of those
terms is that they had not been used in statute before. He
added that he could not say whether one was necessarily better
than the other. He maintained that his preference was to
replace "physical" with "actual" or "real" because the
legislative intent was to capture someone who was impersonating
another specific person. He reiterated that ultimately, it came
down to a policy call.
CHAIR KREISS-TOMKINS asked Mr. Skidmore to provide an example of
a scenario that would be captured under "actual identity" that
"physical identity" would not capture.
5:51:18 PM
MR. SKIDMORE said he could not come up with a specific
hypothetical at this time.
CHAIR KREISS-TOMKINS asked Mr. Stinson if he could provide an
example.
MR. STINSON expressed concern that "actual" could be interpreted
more broadly than "physical" because someone's actual identity
could be interpreted as a false name or some other aspect. He
maintained his belief that "physical" would better capture the
intent, because "physical" indicated an immutable attribute that
could not be lied about because it would be immediately
observable.
5:53:44 PM
REPRESENTATIVE EASTMAN asked whether someone could give consent
if they had been "previously tricked" concerning the physical
identity of the person with whom they [engaged in sexual
contact].
MR. STINSON inquired about Representative Eastman's meaning of
"previously tricked". In response, he asked for confirmation
that Representative Eastman was inquiring about a situation in
which consent was given under the false pretenses that would
otherwise qualify as rape by fraud and then subsequently the
person decided that he/she wanted to consent to a second act
after finding out that the person was a different person. He
questioned whether that captured the question accurately.
REPRESENTATIVE EASTMAN clarified that he was focused on lines 7-
9 of Amendment 4. He remarked:
I'm talking about the potential victim in this
situation. Are there some circumstances and
situations where they could give consent because, even
though the potential offender is acting with reckless
disregard, they actually would have consented if they
had known and not been tricked?
5:57:03 PM
MR. STINSON said the difficulty of framing rape by fraud with an
affirmative consent framework is that the person does give
affirmative consent but has been tricked. He expounded that the
person would have consented to the act, but only by fraud or
deception. To the extent that the individual was undisturbed by
that fraud or deception, technically the law would be violated,
but there would be a question of how it would get reported or
prosecuted. He reiterated that this provision would apply to
the use of fraud to obtain what would otherwise be consensual
sexual contact or consensual sex, but the person then realized
that he/she had been duped, which was what this provision was
attempting to criminalize.
5:58:39 PM
CHAIR KREISS-TOMKINS directed the discussion back to Amendment
4.
5:59:10 PM
REPRESENTATIVE VANCE moved to adopt Conceptual Amendment 1 to
Amendment 4, such that the word "physical" on line 6 would be
replaced with "real". She believed that it would align with the
language on line 9 and be less restrictive than "physical".
Further, she opined that "real identity" would better capture
who the person actually was as opposed to the person's physical
appearance.
CHAIR KREISS-TOMKINS objected.
6:00:51 PM
REPRESENTATIVE TARR noted that the original language that had
been submitted to Legislative Legal Services contained the word
"true", which the drafters replaced with "real" [on line 9 of
Amendment 4].
6:01:12 PM
REPRESENTATIVE STORY questioned whether the bill sponsor was
supportive of the conceptual amendment.
REPRESENTATIVE TARR said she was "okay" with it; however, she
believed it would be a topic of further discussion.
CHAIR KREISS-TOMKINS said he had concerns; nonetheless, he
removed his objection. There being no further objection,
Conceptual Amendment 1 to Amendment 4 was adopted.
6:04:02 PM
REPRESENTATIVE EASTMAN moved to adopt Conceptual Amendment 2 [to
Amendment 4, as amended], which would delete "is" on page 2,
line 9, of SSHB 5 and insert "would not have consented if the
person knew the offender's real identity, but for the fact that
they were".
CHAIR KREISS-TOMKINS objected.
6:05:33 PM
REPRESENTATIVE TARR expressed her opposition to Conceptual
Amendment 2 to Amendment 4, as amended, because the bill
language was drafted in a specific tense and the proposed
conceptual amendment would "resituate" it.
6:06:10 PM
A roll call vote was taken. Representative Eastman voted in
favor of Conceptual Amendment 2 to Amendment 4, as amended.
Representatives Tarr, Story, Vance, Kaufman, and Kreiss-Tomkins
voted against it. Therefore, Conceptual Amendment 2 to
Amendment 4, as amended, failed by a vote of 1-5.
6:07:08 PM
REPRESENTATIVE EASTMAN removed his objection to the adoption of
Amendment 4, as amended. There being no further objection,
Amendment 4, as amended, was adopted.
CHAIR KREISS-TOMKINS invited final comment on SSHB 5, as
amended.
REPRESENTATIVE EASTMAN expressed concern that should SSHB 5, as
amended, pass, otherwise innocuous actions between two
consenting adults could be later construed "in a way that was
not intended."
6:08:53 PM
REPRESENTATIVE VANCE said she liked the bill but still had
reservations. She committed herself to continuing the work on
the proposed legislation in the next committee of referral.
CHAIR KREISS-TOMKINS emphasized the importance of addressing
sexual assault. Nonetheless, he expressed concern that as
amended, the rape by fraud provisions could allow for more
unintended consequences, ambiguity, and prosecutorial discretion
that could capture scenarios outside the legislative intent. He
said he was always troubled by further steps towards mass
incarceration as a solution to public safety problems.
6:10:34 PM
REPRESENTATIVE TARR agreed with the chair on the issue of long
prison sentences. She recited the quote, "rape is like a murder
where the victim survives," to emphasize the severity of the
impact. She added that the goal was to make improvements
without unintended consequences and to change the culture.
6:12:05 PM
REPRESENTATIVE VANCE moved to report SSHB 5, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSSHB 5(STA) was
reported out of the House State Affairs Standing Committee.