Legislature(2019 - 2020)ADAMS ROOM 519
04/26/2019 09:00 AM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| SB61 | |
| HB16 | |
| HB32 | |
| HB14 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 145 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 61 | TELECONFERENCED | |
| += | HB 16 | TELECONFERENCED | |
| += | HB 32 | TELECONFERENCED | |
| += | HB 14 | 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."
9:17:18 AM
Co-Chair Foster MOVED to ADOPT Amendment 1, 31-LS0182\O.2
(Radford, 4/22/19) (copy on file):
Page 1, line 1, following "degree;":
Insert "relating to harassment;"
Page 2, following line 6:
Insert a new bill section to read:
"* Sec. 2. AS 11.61.118(a) is amended to read:
(a) A person commits the crime of harassment in the
first degree if, under circumstances not proscribed
under AS 11.41.434 - 11.41.440, [(1)] the person
violates AS 11.61.120(a)(5) and the offensive physical
contact is contact (1) with human or animal blood,
mucus, saliva, semen, urine, vomitus, or feces; or
(2) [UNDER CIRCUMSTANCES NOT PROSCRIBED UNDER AS
11.41.434-11.41.440, THE PERSON VIOLATES AS
11.61.120(a)(5) AND THE OFFENSIVE PHYSICAL CONTACT IS
CONTACT] by the person touching through clothing
another person's genitals, buttocks, or female
breast."
Renumber the following bill sections accordingly.
Page 2, line 23:
Delete "ejaculating on the victim"
Insert "causing the victim to come into contact with
ejaculate"
Page 9, line 8, following "Act;":
Insert "AS 11.61.118(a), as amended by sec. 2 of this
Act,"
Page 9, line 9:
Delete "sec. 2"
Insert "sec. 3"
Page 9, line 10:
Delete "sec. 3"
Insert "sec. 4"
Delete "sec. 4"
Insert "sec. 5"
Co-Chair Foster noted the amendment was a sponsor's
amendment by the request of the Department of Law (DOL).
Representative Carpenter OBJECTED for discussion.
Co-Chair Wilson asked the sponsor's office to review the
amendment.
ROSE FOLEY, STAFF, REPRESENTATIVE JOHN LINCOLN, reviewed
the amendment that made two changes. She began at the
bottom of page 1, line 20 that reverted back to the
previous definition of sexual contact: "causing the victim
to come into contact with ejaculate." The Department of Law
expressed concern that it would be difficult to prove the
method of delivery if the language only read "ejaculating
on the victim." She expounded there may be instances where
the victim had ejaculate on their person, and it was not
readily provable that the perpetrator had ejaculated on the
victim rather than delivering the fluid in another manner.
The top part of the amendment eliminated some overlap
between the sexual abuse of a minor and harassment statutes
by adding to the harassment statute "under circumstances
not proscribed under AS 11.41.434-11.41.440," which would
instruct the prosecutor to first look to see if the
criteria for sexual abuse of a minor is met before charging
harassment.
Representative Josephson thought the amendment was
beneficial because there could be circumstances where there
could be a sexual abuse of a minor charge that previously
would not have been charged because of the placement of the
clarifying language "under circumstances not proscribed."
Additionally, the amendment dealt with the issue of
transport of bodily fluid. He asked if Legislative Legal
Services had communicated to the sponsor's office that
there had been an equal protection concern relative to
bodily fluid.
Ms. Foley replied in the affirmative.
Representative Josephson requested to ask DOL about its
view of the equal protection argument.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, replied that he had been asked about DOL's view on
concerns about equal protection. He referenced debates that
had occurred in the legislature about whether or not the
bill needed to refer to ejaculate or semen. He reported
that equal protection under the Alaska Constitution and the
U.S. Constitution stated that people who were similarly
situated could not be treated differently. He explained
that the use of the word "semen" did not deal with people
who were similarly situated differently because only men
produce semen. He stated it did not treat women
differently. Second, if it was found for some reason there
was a distinction and it was said they were treated
differently, the law specified that it was necessary to
determine whether there was a compelling reason for doing
so. The statistics that applied to sexual assault and
sexual abuse of minors showed that 97 to 98 percent of the
offences were committed by men.
Mr. Skidmore continued that if someone wanted to prosecute
a case where a female had engaged in the activity
criminalized under the bill, the prosecutor would have to
determine whether there was testing that could help prove
the case. The state crime lab had informed DOL that the
scientific evidence available could specify whether or not
a fluid was semen. There was no testing available to
indicate whether or not other fluid would have been
ejaculate that would have been produced by a female. The
choice between the words "ejaculate" and "semen" was a
policy choice by the legislature. He added that semen was
the term used in several other sex crime statutes. He
clarified that the word choice was ultimately up to the
legislature and either would work for DOL.
9:22:59 AM
Representative Josephson asked how to deal with the
situation for a man who had a vasectomy and did not produce
semen. He asked if there was a definition for the
situation.
Mr. Skidmore answered there was not currently a definition
in statute. The department had consulted with the state
crime lab that used a technical definition for semen as
follows: seminal male reproductive fluid, which may contain
sperm cells. There were a number of medical conditions or
procedures that could result in semen not containing sperm
cells. The crime lab's definition of semen would not be
impacted if someone had a vasectomy.
Representative Josephson had looked at Alaska caselaw and
it contained 73 usages of the word semen and 9 usages of
the word ejaculate. He did not look at every case to
determine if it was impactful or meaningful. He asked the
information was informative to DOL in some way.
Mr. Skidmore responded that had not done a similar search
and therefore had not read all of the references in
caselaw. He declined to comment without reviewing the
cases.
Representative Josephson noted that the court had talked
about semen 73 times. He asked if that was informative.
Mr. Skidmore answered that semen was the term used in a
number of other statutes, which was in part why the word
may be referenced more frequently [in caselaw]. The
information indicated that the courts and practitioners
were comfortable and accustomed to using that particular
language. In the department's experience, when language was
changed there was always litigation as people would try to
argue about what was actually meant. He explained it was
the natural course of the way things worked in an
adversarial system like criminal justice.
Representative Carpenter pointed to line 11 of the
amendment pertaining to a person coming into contact with
human fluid or some other substance including human or
animal blood, mucus, saliva, etcetera. He asked if a crime
still fell under harassment a communicable disease was
transmitted. He wondered if there was a more severe penalty
applied in the situation.
Mr. Skidmore answered that DOL had wrestled with the
question in the past. He explained that DOL evaluated the
disease that had been transferred and the potential risks
or harm the disease caused. Based on the information, DOL
evaluated whether or not the disease was transferred
knowingly, intentionally, or recklessly and it would
consider whether the harm could be defined as physical
injury. He expounded that if harm could be defined as
physical it would fall under the assault category. He added
that DOL would have to look to the definitions of physical
injury or serious physical injury to determine if the
particular disease would qualify.
9:26:57 AM
Representative Carpenter asked for verification that
precedence and caselaw would support that type of outcome.
He explained that if the legislature passed the bill, it
would appear to the public that it would only be a crime of
assault if the conditions were met. He asked if there was
certainty it would be the outcome of the legislation.
Mr. Skidmore responded that in criminal law everything was
based on facts and details. He explained that civil law was
more difficult to practice because so many laws applied.
The statutes in criminal law were fewer in number, but the
nuances in the facts of each case drove the outcome. He
could not make promises or guarantees about how a
particular case would be evaluated or what the outcome
would be. He could tell the committee that there had been
cases in the past where diseases had been transferred and
DOL had looked at them to determine whether the higher
crime could be charged. Sometimes the answer was yes, and
other times the answer was no because unfortunately
everything was driven by the specific facts.
Representative Carpenter WITHDREW his OBJECTION to
Amendment 1.
There being NO further OBJECTION, Amendment 1 was ADOPTED.
Representative Josephson shared that he had drafted three
amendments that he would not offer.
Vice-Chair Johnston MOVED to REPORT CSHB 14(FIN) out of
committee with individual recommendations and the
accompanying fiscal notes.
Representative Josephson OBJECTED for discussion. He
applauded the sponsor for the bill. He believed it would
make Alaska safer. He detailed that once the bill passed if
a person was strangled and passed out, the perpetrator
would instantly be in a Class A felony position (in the
past it had been necessary to prove physical injury). He
believed the bill was fair to treat the action in the
Schneider matter as a sex offense, given the outrageous,
heinous conduct that had occurred.
Representative Josephson commented on his belief that the
judge's hands had been tied in the Schneider case. He
acknowledged that the judge could have rejected the plea
deal. He was concerned with the fact that under AS
12.55.027, a person who had murdered someone with malice or
forethought, could get credit toward a sentence pretrial if
they were on electronic monitoring (EM). The bill did not
change that, which did not mean the bill was not a great
step forward, it just meant the events of Schneider will be
hemmed in, specifically relative to the creation of a new
sex crime and in cases where there was strangulation to the
point of unconsciousness. However, in many other
circumstances, EM remained available and still remained
available for the offenses in the bill. The penalties would
be greater.
Co-Chair Wilson asked Representative Josephson to stick to
the bill.
Representative Josephson agreed and reported his intent to
offer an amendment at some point in order to resolve some
of his concerns related to the Schneider case.
9:32:22 AM
AT EASE
9:32:57 AM
RECONVENED
Vice-Chair Johnston restated her motion to move the bill
from committee.
There being NO further OBJECTION, CSHB 14(FIN) was REPORTED
out of committee with a "do pass" recommendation and with
two new indeterminate fiscal notes from the Department of
Administration; three previously published zero notes: FN1
(DHS), FN2 (LAW), FN3 (DPS); and one previously published
fiscal impact note: FN7 (COR).
Co-Chair Wilson reviewed the schedule for the following
meeting.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 14 Amendment 1 Foster.pdf |
HFIN 4/26/2019 9:00:00 AM |
HB 14 |
| HB 16 Support letter.pdf |
HFIN 4/26/2019 9:00:00 AM |
HB 16 |
| HB 16 Public Testimony.pdf |
HFIN 4/26/2019 9:00:00 AM |
HB 16 |