Legislature(2019 - 2020)ADAMS ROOM 519
04/23/2019 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB14 | |
| HB16 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 14 | TELECONFERENCED | |
| + | HB 16 | TELECONFERENCED | |
| += | SB 25 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE BILL NO. 14
"An Act relating to assault in the first degree;
relating to sex offenses; relating to the definition
of 'dangerous instrument'; and providing for an
aggravating factor at sentencing for strangulation
that results in unconsciousness."
1:30:53 PM
REPRESENTATIVE JOHN LINCOLN, SPONSOR, introduced himself
and thanked the committee for hearing the legislation
intended to fix issues that had come to light the previous
year. He referenced the situation where a man had strangled
a woman and ejaculated on her while she was unconscious -
the man had not received any jail time. The bill would
change the law resulting in jail time for specific crimes.
He delineated that HB 14 made strangulation to the point of
unconsciousness a first degree assault and included the act
on the list of aggravating factors for other crimes. In
addition, the bill enhanced sexual assault statutes by
adding unwanted contact with ejaculate to the definition of
sexual contact and provided for victim notification to all
sex crime victims, rather than just felony victims. He
thanked all the people associated with drafting the bill.
1:32:38 PM
Representative Josephson supported the legislation. He had
been told that due to the amount of case law there was a
preference to keep verbiage the same regarding the word
semen. He asked if the issue had been discussed.
ROSE FOLEY, STAFF, REPRESENTATIVE JOHN LINCOLN, replied
that at the advice of Legislative Legal Services they had
been advised to use the word ejaculate that was specific to
both genders. She explained that semen referred only to
males and there could be equal protection issues. Semen may
or may not encompass all types of male ejaculate.
Representative Josephson pointed to the language on page 2,
lines 4 through 6, of the bill that made strangulation an
assault and noted that the same language established it as
an aggravator on page 7. He asked for detail on the
decision to include the language twice. Ms. Foley answered
that the decision had been made to keep both provisions
intact and give the prosecuting attorney and judge as much
discretion as possible. She added that in some cases using
the aggravator versus the assault might result in a
stiffer sentence.
1:35:26 PM
Representative Carpenter asked what happened if a person
was strangled but not to the point of unconsciousness. Ms.
Foley answered that the bill applied to a strangulation to
the point of unconsciousness. She elaborated that if a
person was conscious the crime would be assault in the
second degree.
Ms. Foley reviewed the sectional analysis (copy on file):
Section 1: Amends AS 11.41.200(a), classifying
strangulation to the point of unconsciousness as
assault in the first degree.
Section 2: Amends AS 11.81.900(b)(15), clarifying that
"dangerous instrument" with relation to strangulation
includes hands or "other body parts".
Section 3: Amends AS 11.81.900(b)(60), to include in
the definition of sexual contact "knowingly
ejaculating on the victim".
Section 4: Amends AS 12.55.155(c), adding
strangulation to the point of unconsciousness to the
list of aggravating factors to be considered at
sentencing.
Section 5: Amends AS 12.61.015(a), adding all victims
of sex crimes to the notification requirements of this
statute. This section also adds language to existing
subsection (a)(4), directing the prosecuting attorney
to record the victim's (or victim's legal guardian's)
response to a proposed plea agreement before entering
into such an agreement.
Section 6: Amends AS 12.61.015, adding a new
subsection (d) and (e). Subsection (d) provides the
court may reschedule a plea agreement to allow
additional time for the prosecutor to comply with the
victim notification requirements. Subsection (e)
clarifies that a victim is in no way required to
provide a response regarding a plea agreement, nor
would the victim's response bind the prosecutor to
accept or reject the plea agreement.
Section 7: Establishes that the provisions are
applicable only to crimes committed on or after the
effective date of the legislation.
Co-Chair Wilson asked about the word "knowingly" in Section
3. She asked how to know if a person knowingly committed an
act. Ms. Foley replied that it depended on the intent of
the act.
Co-Chair Wilson directed the question to the Department of
Law (DOL)
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW (via teleconference), responded that to answer the
question he would explain the element of mens rea that was
the intention or knowledge of wrongdoing. He stated that in
HB 14 the standard was knowingly. He defined knowingly as
aware that the conduct is of that circumstance. The state
would need to demonstrate that the defendant recognized
that he was engaged in activity that resulted in ejaculate
landing on the victim and would use the facts of the case
to establish knowingly. The circumstantial evidence would
have to be applied since it was impossible to know what was
in the persons thought process.
1:40:07 PM
Representative Knopp looked at Section 1 and asked why
strangulation to the point of unconsciousness was not
considered attempted murder. Mr. Skidmore answered that
attempted murder had a very specific element that the
person acted with the mens rea of intent; the conscious
objective to cause the result. He exemplified that if a
person strangled another person to the point of cutting off
blood or air to the brain, they may have had a different
conscious objective other than attempted murder. The
provision in HB 14 did not require a prosecutor to prove
attempted murder but there was nothing impacting the
statute from also charging attempted murder if additional
evidence warranted the charge.
Co-Chair Wilson OPENED public testimony.
ELIZABETH WILLIAMS, NO MORE FREE PASSES, ANCHORAGE (via
teleconference), vocalized strong support for the
legislation. She believed that the bill sent a cultural
message that strangulation was taken seriously in the
state. She noted that she was a social worker and had
personally worked with many clients that had been strangled
and the act was often diminished in the courts. Her
organization was in favor of amending the bill to include
strangulation not to the point of unconsciousness. She
cited SB 12-Assault; Sex Offenses; Sentencing Credit that
increased the act of strangulation to Assault in the third
and second degree without proof the victim lost
consciousness. In addition, they did not want to see time
on electronic monitoring to count towards the offender's
sentence.
1:44:15 PM
Co-Chair Wilson recognized Senator Lora Reinbold and
Representative Geran Tarr in the audience.
CARMEN LOWREY, EXECUTIVE DIRECTOR, ALASKA NETWORK ON
DOMESTIC VIOLENCE AND SEXUAL ASSAULT, testified in support
of the legislation. She explained that the network
constituted 25 member programs across the state providing
victim based services that included shelter. She thanked
the bill sponsor for introducing the bill. She remarked
that the bill elevated the issue of the lethality of
strangulation. She reminded members that strangulation
involved cutting off oxygen to the brain and only took 10
seconds before unconsciousness occurred. Multiple
strangulations could bring about long-term health impacts
such as a stroke. She indicated that strangulation was
difficult to verify; often marks were not left on an
individual. Second, she pointed to the value of Section 5
related to victim engagement in plea agreements. She
emphasized the importance of the provision. She explained
that the provision helped others to learn what the
circumstances for strangulation were and about what justice
meant for victims. In addition, society learned how and why
victims were involved in order to adapt procedures that
addressed the issue. She discussed that the bill created a
victim survivor centered process that gave victims a
voice. She reiterated her full support of the bill.
1:48:14 PM
JANELL MANCHESTER, 49TH RISING, FAIRBANKS (via
teleconference), spoke in support of the bill. She
underscored that the legislation would help create a safer
Alaska and helped address the epidemic of sexual and
domestic violence in the state. She offered that survivors
were encouraged to report but noted that the legal system
was notoriously unfriendly to survivors. She shared
information about a case where a woman had declined to
press charges because the police informed her that the
defense attorney would tear her down in court. She did
not want survivors to ever have to endure that type of
conversation again. She stated the bill would ensure the
legal system was more survivor friendly and kept victims
safe. The bill included a victim notification system for
all sex offenses and stipulated that a court could
reschedule a plea agreement if notification did not occur.
She favored the bills elevation of the crime of
strangulation. She stressed that strangulation was a
serious and deadly form of abuse. Victims of strangulation
were seven times more likely to be killed by their
partners. The legislation provided another tool for
victims advocats that helped ensure survivors safety.
Finally, the bill would close the Schneider loophole and
make nonconsensual contact with ejaculation a form of
sexual violence.
1:50:23 PM
LYNNETTE CLARK, SELF, FOX (via teleconference), spoke in
support of the legislation. She shared that she had been a
victim of domestic violence and had been choked almost to
the point of unconsciousness. She detailed the horrific
nature of the experience. She believed that the bill
addressed the perpetrators. She favored that the bill
granted the judge more discretion and allowed for
mitigating factors. She thought that men and women were not
safe in present times.
Co-Chair Wilson CLOSED public testimony.
Representative Josephson noted there had been a person who
had asked questions about SB 12, which had similarities and
differences compared to HB 14.
Co-Chair Wilson interjected that SB 12 was not before the
committee. She offered that he could ask about a specific
concept.
Representative Josephson asked how HB 14 treated
strangulation not to the point of unconsciousness. Mr.
Skidmore answered that neither HB 14 nor SB 12 drew a
distinction for attempt. He cited AS 11.31 that defined
attempt as when a person took a substantial step towards
the results defined in the elements of a crime. In the case
where someone took substantial steps towards strangulation
to the point of unconsciousness the charge resulted in an
attempted assault. The impact of attempted assault was a
lower charge by one level. He exemplified that
strangulation not to the point of unconsciousness resulted
in charging a Class B felony versus a Class A felony and an
attempt was treated as an Assault II, a Class C felony.
1:54:32 PM
Representative Josephson understood that the statutory
definition of AS 11.31 brought down the classification by
one level. He indicated that the only thing added in the
bill was the express inclusion of unconscious." He asked
if strangulation would still be charged as Class A, B, or C
felony with passage of the bill. Mr. Skidmore was
unfamiliar with the concept that strangulation would be
charged as an A, B, or C felony. He explained that the
current statute defined strangulation as causing injury by
means of a dangerous instrument. A dangerous instrument was
defined as using hands or other objects to impede normal
breathing or circulation of blood and when combined with
physical injury the charge was Assault II and if the injury
was severe the charge could be an Assault I. The bill added
the term unconsciousness to clearly articulate when the
legislature believed strangulation reached the point of
serious injury. The bill did not change the definition of
serious physical injury and he reiterated that he was
uncertain what Representative Josephson was referring to.
He noted that there was a theory under Assault III that
considered a threat of violent conduct placing the person
in fear could be a Class C felony and was like the attempt
concept. Representative Josephson cited that Assault III
referred to a dangerous instrument in a subsection that
lead to the hands in strangulation. He surmised that the
assumption in HB 14 was if a victim passed out the
strangulation was charged as a Class A felony and if the
person did not pass out, but physical injury was proven the
charge resulted in a Class B felony. He asked for
concurrence. Mr. Skidmore agreed with the conclusion.
Co-Chair Wilson asked about the provision that allowed
electronic monitoring counting as time served. She wondered
whether the court was required to offer credit or if the
judge had discretion. Mr. Skidmore answered that the case
law that supported the statute made it highly unlikely that
credit for time served would not be awarded.
1:58:25 PM
Co-Chair Wilson remembered that the statute stated "may,"
but she wanted Mr. Skidmore to clarify the statute and
place it on the record.
1:58:50 PM
AT EASE
1:59:48 PM
RECONVENED
Mr. Skidmore was currently looking at the documents and
needed a couple of additional minutes. He offered to
provide the answer via email.
Co-Chair Wilson asked Mr. Skidmore to provide the
information the following morning.
Mr. Skidmore noted he would be on a plane at that time, but
he would provide the information to a colleague.
HB 14 was HEARD and HELD in committee for further
consideration.