04/15/2019 01:00 PM House JUDICIARY

         HB  14-ASSAULT; SEX OFFENSES; SENT. AGGRAVATOR                                                                     
                                                                                                                                
2:37:39 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that the  final order of business would be                                                               
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."    [Before  the  committee  was  CSHB  14(STA),                                                               
version 31-LS0182\G.]   Chair Claman  recognized the  presence of                                                               
Representative Lincoln, the bill's prime sponsor.                                                                               
                                                                                                                                
2:38:37 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN passed the gavel to Vice Chair LeDoux.                                                                             
                                                                                                                                
CHAIR CLAMAN  moved to adopt Amendment  1, labeled 31-LS0182\G.5,                                                               
Radford, 4/10/19, which read as follows:                                                                                        
                                                                                                                                
     Page 2, lines 22 - 23:                                                                                                     
          Delete "causing the victim to come into contact                                                                   
     with ejaculate"                                                                                                        
          Insert "ejaculating on the victim"                                                                                
                                                                                                                                
Representative Stutes objected for purposes of discussion.                                                                      
                                                                                                                                
2:39:02 PM                                                                                                                    
                                                                                                                                
LIZZIE KUBITZ,  Staff, Representative  Matt Claman,  Alaska State                                                               
Legislation,  said Amendment  1 was  the result  of conversations                                                               
with  the  prime  sponsor's  office, the  Office  of  the  Public                                                               
Defender, and others.   She said the current version  of the bill                                                               
adds  "knowingly causing  the victim  to come  into contact  with                                                               
ejaculate" to  the definitions of  sexual contact.   However, she                                                               
explained, it was  determined that this language  could result in                                                               
unintended consequences.   For example,  she said, if  a juvenile                                                               
were to throw a towel on  someone and that towel had ejaculate on                                                               
it,  the  juvenile  could  potentially  be  charged  with  sexual                                                               
assault.   She  stated  that  Amendment 1  seeks  to avoid  those                                                               
unintended  consequences   by  amending  the  language   to  read                                                               
"knowingly  ejaculating on  the victim."   She  opined that  this                                                               
language better fits the goals of the bill.                                                                                     
                                                                                                                                
2:40:43 PM                                                                                                                    
                                                                                                                                
VICE CHAIR  LEDOUX established a  hypothetical scenario  in which                                                               
the defendant,  instead of ejaculating on  the victim, ejaculated                                                               
in the vicinity of the victim  and then forced the victim to come                                                               
into contact with the ejaculate.   She queried, "That wouldn't be                                                               
covered here, would it?"                                                                                                        
                                                                                                                                
MS. KUBITZ said  the intention of Amendment 1 is  to focus on the                                                               
action as opposed  to "coming in contact with  the ejaculate," in                                                               
order  to avoid  criminalizing  behavior that  the prime  sponsor                                                               
and/or the committee may not want to criminalize.                                                                               
                                                                                                                                
VICE CHAIR  LEDOUX returned  to the example  of the  juvenile and                                                               
the towel.   She  suggested that  there could  be another  way to                                                               
address  the  issue that  would  distinguish  between a  juvenile                                                               
offender and an  adult offender.  She expressed  doubts that this                                                               
particular change is the solution.                                                                                              
                                                                                                                                
CHAIR CLAMAN noted that Amendment 1  does not change the crime of                                                               
harassment, which  he suggested would apply  in the circumstances                                                               
described by  Representative LeDoux.   He  said the  question is,                                                               
"Where are we  going to draw the line between  felony conduct and                                                               
misdemeanor  conduct?"   He  noted  that Representative  LeDoux's                                                               
question  reflects  the  reality  that  decisions  must  be  made                                                               
regarding where that line gets drawn.                                                                                           
                                                                                                                                
REPRESENTATIVE EASTMAN said HB 14  was in part inspired by public                                                               
outcry relating to  sexual acts not currently  categorized as sex                                                               
crimes.   He said the public  wants legislators to make  the laws                                                               
match  its expectations.    He  said he  does  not  know if  this                                                               
language accomplishes that.                                                                                                     
                                                                                                                                
2:44:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE STUTES withdrew her objection.                                                                                   
                                                                                                                                
VICE CHAIR LEDOUX added her own objection.                                                                                      
                                                                                                                                
2:44:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WOOL  asked a  question relating  to the  crime of                                                               
harassment.   He  said other  bodily fluids  have been  thrown at                                                               
people for  the purposes of  harassment.   He asked, "How  do you                                                               
differentiate that  from a sex crime,  if you don't want  to pass                                                               
this amendment?"                                                                                                                
                                                                                                                                
VICE CHAIR  LEDOUX said she cannot  answer that.  She  stated she                                                               
does not support Amendment 1 in its current form.                                                                               
                                                                                                                                
CHAIR CLAMAN  said the genesis of  HB 14 was the  public concerns                                                               
that   arose  from   the  Justin   Schneider  case   relating  to                                                               
strangulation,  which is  not  a sex  crime on  its  own, and  to                                                               
ejaculation onto  a strangulation victim, which  is not currently                                                               
a sex  crime due  to a  loophole.  He  stated that  the resulting                                                               
effort of HB 14 was to  change the Schneider loophole so that the                                                               
conduct in  that case  could be the  basis for a  sex crime.   He                                                               
said  the   challenge  becomes  ensuring  that   the  legislative                                                               
language  drafted does  not become  so  broad that  it brings  in                                                               
conduct  that sounds  more like  harassment and  less like  a sex                                                               
crime.   He said the language  in Amendment 1 was  recommended by                                                               
the  former Public  Defender to  effectively close  the Schneider                                                               
loophole while avoiding overbreadth problems.                                                                                   
                                                                                                                                
2:47:50 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN   proposed  Conceptual  Amendment   1  to                                                               
Amendment  1.    He  proposed   a  two-part  test  in  which  the                                                               
individual intentionally  ejaculates in  the presence  of someone                                                               
and afterward knowingly  causes that person to  come into contact                                                               
with the  ejaculate.   He said  the reason  for this  proposal is                                                               
that  the public  outcry refers  to any  situation in  which both                                                               
parts of  that test are  met.  He  said this would  allow certain                                                               
acts to be considered as  sex crimes while avoiding the inclusion                                                               
of the conduct of "teenage boys in bathrooms horsing around."                                                                   
                                                                                                                                
CHAIR CLAMAN said  he does not support Conceptual  Amendment 1 to                                                               
Amendment  1.   He noted  that Amendment  1 is  supported by  the                                                               
Alaska Network  on Domestic Violence  & Sexual  Assault (ANDVSA).                                                               
He said  ANDVSA believes Amendment  1 adequately  addresses those                                                               
concerns.   He  stated that  the  public is  concerned about  the                                                               
loophole.   He said HB  14 would  close the loophole   whether or                                                               
not  it  precisely  addresses  every  question  of  every  public                                                               
member."   He added that  the legislators need to  make effective                                                               
legislation  that  does  not  create   more  confusion  and  more                                                               
ambiguity.   He suggested that Representative  Eastman's proposal                                                               
would make things more confusing and more difficult to apply.                                                                   
                                                                                                                                
VICE CHAIR  LEDOUX said  the proposed  amendment might  close the                                                               
loophole  for  the  exact circumstances  of  the  Schneider  case                                                               
"until another loophole identifies itself."                                                                                     
                                                                                                                                
2:50:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP noted that harassment  in the first degree is                                                               
in  play  when the  circumstances  of  harassment in  the  second                                                               
degree include  substances such  as blood, mucus,  or semen.   He                                                               
said what elevates  harassment in the first degree  to the felony                                                               
level is  when it  occurs in conjunction  with felony  assault or                                                               
felony sexual  assault.  He  noted that  if the conduct  were not                                                               
happening concurrently with  a felony assault or  a felony sexual                                                               
assault, then the  committee would not be looking at  making it a                                                               
registerable felony sex  offense.  He remarked that  there has to                                                               
be  a way  to write  the law  so  that it  says, "if  the act  of                                                               
[harassment  in  the first  degree]  occurs  in concurrence  with                                                               
[felony assault  or felony  sexual assault],  it is  considered a                                                               
felony,because   the harassment is  in relation to the assault or                                                               
sexual assault.                                                                                                                 
                                                                                                                                
VICE CHAIR  LEDOUX inquired,  "So you're saying,  if there  is no                                                               
kidnapping and no assault and someone  is just on a date with the                                                               
wrong person  and he  ejaculates on  her, that  that's not  a sex                                                               
crime?                                                                                                                          
                                                                                                                                
CHAIR CLAMAN said that conduct is covered by Amendment 1.                                                                       
                                                                                                                                
VICE  CHAIR  LEDOUX  said she  thought  Representative  Kopp  was                                                               
saying there  is no sex  crime unless  it is in  conjunction with                                                               
some other assault or some other felony.                                                                                        
                                                                                                                                
CHAIR  CLAMAN  said part  of  the  challenge  is that  all  these                                                               
scenarios  become very  fact-driven.   He noted  that a  scenario                                                               
involving an  individual who  ejaculates on  the ground  and then                                                               
pushes someone  into it would  probably be covered by  a physical                                                               
assault crime for the act of pushing  the person down.  He said a                                                               
situation in  which someone ejaculates  onto another  person fits                                                               
the definition  of a  sex crime.   He said  a situation  in which                                                               
someone  is  not  ejaculating  on   a  person  sounds  more  like                                                               
harassment.                                                                                                                     
                                                                                                                                
2:54:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOPP agreed  with Chair  Claman's assertion.   He                                                               
said the goal is to encompass  all these situations.  He said the                                                               
current  language  of   the  bill  would  address   a  number  of                                                               
situations  by making  certain acts  sex crimes.   He  added that                                                               
misdemeanor-level harassment, when it  occurs in conjunction with                                                               
felony sexual assault  or felony assault, should be  charged as a                                                               
felony.                                                                                                                         
                                                                                                                                
VICE  CHAIR LEDOUX  said her  interpretation of  the language  in                                                               
Amendment 1  is that  the perpetrator needs  to ejaculate  on the                                                               
victim  as  opposed  to  rubbing  the victim's  hand  in  it,  or                                                               
something like that.                                                                                                            
                                                                                                                                
REPRESENTATIVE KOPP  said the  Department of  Law (DOL)  has some                                                               
discretion.   He  referenced the  totality  of circumstances  and                                                               
noted that  all sex offenses require  a mental state.   He opined                                                               
that  trying  to  capture every  possible  instance  of  "horsing                                                               
around,  could end  up "stopping language that could do  a lot of                                                               
good.   He  said he does not  want to "see us get  too tight" and                                                               
assume that DOL is not going to exercise its discretion.                                                                        
                                                                                                                                
REPRESENTATIVE  LEDOUX said  that  argument  would speak  against                                                               
Amendment 1.                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN agreed with Representative LeDoux.                                                                       
                                                                                                                                
CHAIR CLAMAN  commented that the line-drawing  of the legislature                                                               
is a  serious process.   He  argued that a  scenario in  which an                                                               
individual ejaculates on another person  is more egregious than a                                                               
scenario in  which an  individual ejaculates  in the  presence of                                                               
another person.   He opined  that the  job of the  legislature is                                                               
not to  try to address "every  single thing on the  list," but to                                                               
address "the situation before us."                                                                                              
                                                                                                                                
2:58:21 PM                                                                                                                    
                                                                                                                                
VICE CHAIR  LEDOUX addressed Representative  Eastman's conceptual                                                               
amendment and objected to it.                                                                                                   
                                                                                                                                
REPRESENTATIVE KOPP requested  that Representative Eastman repeat                                                               
Conceptual Amendment 1 to Amendment 1.                                                                                          
                                                                                                                                
REPRESENTATIVE  EASTMAN said  his  conceptual amendment  captures                                                               
the  language  in  line  3  ["ejaculating  on  the  victim"]  and                                                               
captures  the language  in line  2 ["causing  the victim  to come                                                               
into  contact with  ejaculate"], but  the language  in line  2 is                                                               
only  captured  when  the  ejaculation has  taken  place  in  the                                                               
presence of the victim.   He reiterated, "When, having ejaculated                                                               
in the presence of the  victim, the perpetrator causes the victim                                                               
to come into contact with the ejaculate."                                                                                       
                                                                                                                                
REPRESENTATIVE KOPP said the conceptual  amendment does not work.                                                               
He stated  that sex  offenses are  about domination  and control.                                                               
He established a  scenario in which a person  ejaculates alone in                                                               
a bed,  then runs out  of the room to  grab the victim  and bring                                                               
the victim  into the  room to  force the  victim to  have contact                                                               
with the ejaculate.                                                                                                             
                                                                                                                                
REPRESENTATIVE  EASTMAN conceded  that  the conceptual  amendment                                                               
does not capture everything.   He withdrew Conceptual Amendment 1                                                               
to Amendment 1.                                                                                                                 
                                                                                                                                
3:00:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX maintained her objection to Amendment 1.                                                                  
                                                                                                                                
A roll call vote was  taken.  Representatives Shaw, Wool, Stutes,                                                               
Kopp, and Claman voted in  favor of Amendment 1.  Representatives                                                               
Eastman and LeDoux voted against  it.  Therefore, Amendment 1 was                                                               
adopted by a vote of 5-2.                                                                                                       
                                                                                                                                
3:00:56 PM                                                                                                                    
                                                                                                                                
VICE CHAIR LEDOUX returned the gavel to Chair Claman.                                                                           
                                                                                                                                
CHAIR  CLAMAN announced  that  HB  14 will  be  held for  further                                                               
review.