Legislature(2019 - 2020)SENATE FINANCE 532
05/04/2019 09:00 AM Senate FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| SB74 | |
| HB14 | |
| SB35 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 74 | TELECONFERENCED | |
| *+ | HB 14 | TELECONFERENCED | |
| += | SB 35 | TELECONFERENCED | |
CS FOR HOUSE BILL NO. 14(FIN)
"An Act relating to assault in the first degree;
relating to harassment; relating to sex offenses;
relating to the definition of 'dangerous instrument';
providing for an aggravating factor at sentencing for
strangulation that results in unconsciousness;
relating to the duties of the prosecuting attorney;
and relating to victim notifications."
9:17:40 AM
Co-Chair von Imhof stated that the committee had heard the
senate finance version of the bill on March 11, 2019, at
which time public testimony was taken. She said that like
SB 12, HB 14 sought to close a loophole in the states
criminal statutes that had allowed an assailant to go free
when he should have served time. The law, when read
literally, was unable to be applied to the egregious
situation.
9:18:57 AM
REPRESENTATIVE JOHN LINCOLN, SPONSOR, stated that the bill
would address issues with the current law that had come to
light in 2018 when a man strangled a woman to the point of
unconsciousness and then sexually assaulted her. The bill
would define the strangulation or suffocation to the point
of unconsciousness as first degree assault and would add
the behavior to the list of aggravators for sentencing in
other crimes. Additionally, the bill would expand the
statutory definition of sexual contact to include forcing
someone to come into contact with ejaculate and would
expand victim notification laws so that all victims would
be notified versus only felony sex crimes.
9:20:11 AM
ROSE FOLEY, STAFF, REPRESENTATIVE JOHN LINCOLN, discussed
the differences between the current versions of SB 12 and
HB 14. HB 14 used the term ejaculate while SB 12 referred
to fluid as semen. SB 12 investigated sentencing through
sentence enhancement, while HB 14 created an aggravator for
strangulation. She said that credit for time served under
electronic monitoring was eliminated under SB 12 but was
not mentioned in HB 14. She concluded the HB 14 first
provided notification to all victims of sex crimes and
allowed the court to reschedule a plea hearing to allow the
court to comply with notification requirements.
9:21:13 AM
Co-Chair von Imhof recalled that Senator Olson had brought
up a concern in a previous meeting that pertained to
whether victim notification requirements regarding plea
agreement struck a balance between ensuring that victims
were included, without putting additional pressure on them
to participate against their wishes.
Ms. Foley directed attention to Page 9, line 13 of the
bill, which specified that there was no requirement for the
victim, or their legal guardian, to provide a response to a
prosecuting attorney regarding a plea agreement. If a
victim did not wish to be part of the legal proceedings,
there was no requirement that they participate or provide a
response. The Alaska Network Domestic Violence and Sexual
Assault had requested stronger victim notification
language, the sponsor had worked with that agency as well
as the courts to craft that language. Department of Law had
raised concerns with earlier language in the bill requiring
the prosecuting attorney to state in court what
notification attempts had been made with victims. The
concern had been that this would provide information with
the defense, if the victim could not be located, that could
be detrimental to the victim's case during the early stages
of a plea agreement.
9:22:55 AM
Co-Chair von Imhof asked Senator Micciche to comment on
victim notification component.
Senator Micciche said that the language in the CS was
identical to his original bill. He stressed that there were
no expectations that the victim would be required to do
anything. However, he reminded the committee that Judge
Michael Corey, who ruled in the Schneider case that birthed
the legislation, had testified that requiring the victim to
testify could had resulted in a stronger sentence for the
perpetrator. He supported the current language in the CS.
9:24:41 AM
Senator Micciche noted that the sponsor had been remarkable
to work with.
9:25:40 AM
Co-Chair von Imhof invited John Skidmore from the
Department of Law to the table for questions.
9:27:02 AM
Senator Wielechowski asked whether Department of Law had a
position on the bill.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, explained that LAW supported the bill. The legislation
contained some concepts originally found in the governors
suite of proposed crime bills.
9:27:38 AM
Senator Wielechowski asked Mr. Skidmore to describe the
difference between a special circumstance in sentencing and
an aggravator.
Mr. Skidmore explained that a special circumstance in
sentencing, which was specifically listed in statute,
controlled the presumptive range that a court would impose.
An aggravator was a legal tool that allowed a judge to
increase a sentence above the presumptive range if the
court deemed appropriate.
9:28:38 AM
Senator Wielechowski referenced page 8, section 6 of the
bill, which pertained to a recording when asking victims or
victims guardians whether they agreed with a proposed plea
agreement. He wondered whether this could force victims to
be questioned by a defendant.
Mr. Skidmore answered "no." The bill language stated that
the prosecuting attorney shall make a reasonable effort to
confer with the victim, to explain the proposed plea
agreement and then ask whether they agree with the
agreement. He stated that the same prosecutor, or the
prosecutor at the time of sentencing, would indicate
whether the victim had been spoken to and whether they
agreed. He stressed that the victim would not be required
to go to court, to be subject to cross examination, and no
details of the conversation would be divulged.
9:30:35 AM
Senator Wielechowski thought that there would be a defense
attorney that would want to hear directly from the victim
whether they agreed with the plea agreement. He worried
that this section of the bill would be challenged in court.
Mr. Skidmore appreciated the question. In his experience
and that of other prosecutors dealing with victim's rights
provisions, he had not seen defense attorneys have success
in demanding that a victim be put on the stand.
9:31:50 AM
Senator Wilson asked whether the section would allow the
victims agreement with a plea deal in a criminal case, or
non-agreement, to be used in a civil case.
Mr. Skidmore noted that he did not practice civil law. He
did not believe that agreement or disagreement would have
any bearing on a civil case. He knew that a conviction
could have influence on a civil case if the civil case was
based on the conduct of the defendant. He was not sure
whether the agreement would have any bearing on the
sentence in a civil case.
Co-Chair von Imhof noted that there was a public defender
available to answer questions.
9:34:01 AM
Senator Wilson wondered what would happen if victims
recanted or changed their statements or agreement with the
plea agreement in the criminal case.
Mr. Skidmore thought the subsection of the bill would not
have an effect on the scenario that Senator Wilson was
describing. He furthered that the plea agreement dealt with
the sentence that was imposed and not whether the victim
agreed on the matter of charges being brought in the first
place.
9:35:26 AM
Senator Wilson pondered that a defense attorney for a
perpetrator could probe the victims reason for not
agreeing to a plea bargain, which could then be used
against them in civil proceedings.
Mr. Skidmore reiterated that he was not an expert or
practitioner of civil law.
9:36:12 AM
Senator Micciche shared that there was a similar provision
in law concerning victims agreeing with plea agreements.
There had been a case of sexual abuse of a minor in Healy,
Alaska; in which the parents had not agreed to the plea
agreement.
Mr. Skidmore relayed that LAW had policies under which
attorneys communicated with victims about plea agreements
before they were entered into, and certainly before
sentencing hearings. He said that the bill simply
formalized actions that the department already did.
9:38:06 AM
Senator Wielechowski agreed with Senator Wilson. He said
that in the case of a violent sexual assault, if the victim
decided not to testify, making the case harder to prove and
increasing the chances of a plea bargain, and if the
sentence were pled down significantly and the victim agreed
to the plea change, it would absolutely be used in a civil
case.
Senator Wielechowski asked to what lengths the department
was required to go to attempt contact with the victim.
Mr. Skidmore referenced Page 8, lines 9-11, which said that
the attorney shall make reasonable efforts. This meant
that the department would use the information in existing
files. He said that there were other steps that were taken
to try to locate victims, rarely was law enforcement sent
to track down a victim.
9:40:22 AM
Senator Micciche asked Mr. Skidmore to describe how the
same sentencing for an egregious crime could be reached by
either using an aggregator or using enhanced sentencing.
Mr. Skidmore detailed that the bill added the subsection
that discussed a person knowingly causing a person to
become unconscious by means of a dangerous instrument. He
said that the increase the conduct of a dangerous
instrument to a Class A felony, could increase sentencing
ranges. He stated that under current law the sentencing
range for strangulation, which was a Class B felony, was 0-
2 years. He noted that the change would up it to 3-6 years,
and 4-7 years and 5-8 years were being considered. There
was a concept of putting strangulation into a special
circumstance, which had potential to increase the range for
a Class B felony strangulation from 0-2 years to 1-3 years.
It was also possible to adjust the presumptive range for
Class B felonies. He relayed that the aggravator in the
bill said that if you strangled someone into
unconsciousness it could serve and an aggravator, which
could only be used if it was not an element of the offense.
He explained that the aggravator could not be used on top
of the crime of assault, instead the aggravator would have
to be used in another type of crime. He related that the
two different tools allowed prosecutors to make tactical
decisions about the best method to get to the right
sentence.
9:43:43 AM
Senator Micciche thought the simple answer for the public
was that using either method would result in an appropriate
sentence to punish the crime.
Mr. Skidmore stated that without question the Class A
felony available in the bill would increase the sentencing
range for strangulation. He said that if the strangulation
not been charged as an assault, but used as an aggravator,
it would have made a dramatic difference in the sentencing.
9:45:45 AM
Senator Wielechowski referenced Page 2, line 4 of the bill
and Page 1, line 13, respectively:
(4) that person recklessly causes serious physical injury
to another by repeated assaults using a dangerous
instrument,
(3) the person knowingly engages in conduct that results in
serious physical injury
Senator Wielechowski asked whether there was a difference
between knowingly causes and knowingly engages in
conduct.
Mr. Skidmore answered in the negative.
9:47:02 AM
Co-Chair von Imhof stated that the committee would not move
the bill. She acknowledged that Senator Wilson and Senator
Wielechowski had concerns and asserted that the bill was a
priority for the entire legislature. She said that the
committee would continue to work with the bill sponsor.
9:48:03 AM
JAENELL MANCHESTER, 49TH RISING, FAIRBANKS (via
teleconference), spoke in support of the bill. She asserted
that survivors of sexual violence were encouraged to
support but that the legal system was notoriously
unfriendly to survivors. She cited a story from a woman
named Jessica, who had recounted that when she reported
being raped, police had told her that the defense would
tear her down in court. When asked if she could handle
that, she responded that she could not, and declined to
press charges. She said that including all sex offenses in
the victim notification statute, and stipulating that a
court could reschedule a plea agreement hearing if the
victim notification requirement was unfulfilled, would
ensure that the legal system was more survivor friendly,
while ensuring the defendants right to a fair trial. She
added that the bill would help survivors feel safe and
protect survivors by elevating the severity of
strangulation. She shared that strangulation was a serious
and deadly form of abuse that was often underestimated. She
relayed that victims of strangulation were likely to suffer
long-term physical and mental repercussions and were 7
times more likely to be killed by their partners. She
believed that recognizing the severity of strangulation in
statute would help remove perpetrators from society and
provide additional tools to survivors and advocates to keep
survivors safe. She supported the amendment to end the
practice of granting credit towards a sentence of
imprisonment for time spent under electronic monitoring.
She thought that passing the amendment would increase
accountability and send the signal that sexual violence was
taken seriously by the legislature and the courts. She
concluded that nonconsensual contact with semen was a form
of sexual violence and should be recognized as much by the
legislation.
9:50:31 AM
Senator Wielechowski asked whether the Public Defender
Agency had concerns with the bill.
BETH GOLDSTEIN, ACTING PUBLIC DEFENDER, DEPARTMENT OF
ADMINISTRATION (via teleconference), stated that the office
had a concern with Section 4, which amended AS
11.81.900(b)(60). She believed that the wording did not
require the sex act to be committed in the presence of the
victim. She worried that by separating the sex act from the
contact the language my capture contact that the
legislature does not intend to punish. She understood the
need to close the loophole in statute but felt the language
could be clearer.
9:52:13 AM
Senator Wielechowski asked whether there were any other
concerns.
Ms. Goldstein replied in the negative.
9:52:46 AM
AT EASE
9:54:34 AM
RECONVENED
Co-Chair von Imhof relayed that the committee would set the
bill aside to allow the sponsors of HB 14 and SB 12 to
continue to work with all involved parties on changes to
the bill. The committee would take the bill back up on the
following Monday.
CSHB 14(FIN) was HEARD and HELD in committee for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 74 Work Draft Version K.pdf |
SFIN 5/4/2019 9:00:00 AM |
SB 74 |
| HB014 Sponsor Statement.pdf |
SFIN 5/4/2019 9:00:00 AM |
HB 14 |
| HB014 Letters of Support.pdf |
SFIN 5/4/2019 9:00:00 AM |
HB 14 |
| HB014 Sectional Analysis.pdf |
SFIN 5/4/2019 9:00:00 AM |
HB 14 |
| SB 35 - Sex Offenses Sectional.pdf |
SFIN 5/4/2019 9:00:00 AM SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 35 - Ver. A to E Changes.pdf |
SFIN 5/4/2019 9:00:00 AM |
SB 35 |
| SB 35 - PSEA Letter of Support.pdf |
SFIN 5/4/2019 9:00:00 AM |
SB 35 |
| SB 35 Highlights.pdf |
SFIN 5/4/2019 9:00:00 AM |
SB 35 |
| SB 35 Transmittal Letter.pdf |
SFIN 5/4/2019 9:00:00 AM SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 74 Map - Broadband and Satellite Networks.pdf |
SFIN 5/4/2019 9:00:00 AM |
SB 74 |
| SB 35 DHSS NEW 041919.pdf |
SFIN 5/4/2019 9:00:00 AM |
SB 35 |