Legislature(2019 - 2020)GRUENBERG 120
03/21/2019 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB20 | |
| HCR4 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HCR 4 | TELECONFERENCED | |
| += | HB 20 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 20-SEXUAL ASSAULT EXAMINATION KITS
3:05:24 PM
CO-CHAIR FIELDS announced that the first order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 20, "An Act relating to
sexual assault; relating to the definitions of 'without consent'
and 'consent'; relating to failure to report a violent crime;
relating to sexual misconduct under the code of military
justice; requiring law enforcement agencies to test sexual
assault examination kits; requiring notification of completion
of testing; relating to reports on untested sexual assault
examination kits; and providing for an effective date."
3:05:39 PM
REPRESENTATIVE GERAN TARR, Alaska State Legislature, as prime
sponsor of SSHB 20, expressed her intention to explain the
changes put forth by the committee substitute (CS), Version G.
3:06:06 PM
CO-CHAIR KREISS-TOMKINS moved to adopt the proposed committee
substitute (CS) for SSHB 20, Version 31-LS0253\G, Radford,
3/21/19, as the working document. There being no objection,
Version G was before the committee.
3:06:34 PM
REPRESENTATIVE TARR began with slides 3 and 4, entitled "Mental
State in Criminal Code," and reminded the committee of the
standard language used by the drafter of the original version of
SSHB 20 - "should know or should reasonably know" - which would
be replaced in the CS with language that was more consistent
with existing statutes. This language adheres to the four
phases of mental state as it relates to criminal law, which are
"intentionally," "knowingly," "recklessly," or "criminal
negligence." She stated that the "reckless disregard" standard
has been recommended by the Department of Law (DOL) and is
defined on slide 4 as follows:
(3) a person acts "recklessly" with respect to a
result or to a circumstance described by a provision
of law defining an offense when the person is aware of
and consciously disregards a substantial and
unjustifiable risk that the result will occur or that
the circumstance exists; the risk must be of such a
nature and degree that disregard of it constitutes a
gross deviation from the standard of conduct that a
reasonable person would observe in the situation; a
person who is unaware of a risk of which the person
would have been aware had that person not been
intoxicated acts recklessly with respect to that risk;
REPRESENTATIVE TARR turned to slides 5-7 and relayed that
Version G replaces "or reasonably should know" with "or
recklessly disregards" in Sections 1-3 to be consistent with the
standards that are currently used in criminal law.
3:09:13 PM
REPRESENTATIVE TARR related that Sections 4-7, which address
"consent," have been set aside for further consideration of the
definition of consent. She explained that the implications are
far-reaching; they represent a cultural shift; and significant
work has been accomplished in the last few years in connection
with the Me Too movement [a movement against sexual harassment
and sexual assault]. She reminded the committee that currently
"consent" is defined in terms of "without consent" rather than
in the affirmative - "giving consent." She said that more time
is needed to ensure that the priorities of the advocacy groups
are considered, as well as model language from other states.
She maintained that the proposed legislation has defined
"consent" as overt actions that express consent; however, there
are other aspects of the definition that need further attention.
Examples of additional definition for consideration are as
follows: having been previously engaged in a relationship does
not imply consent; consent may be given and taken away in the
same sexual encounter; physical state may imply physically
incapable of giving consent.
CO-CHAIR FIELDS expressed his desire for something in writing
from a prosecutor stating that the "recklessly disregard"
standard would be adequate to prosecute someone who raped an
incapacitated person. He suggested that "recklessly disregard"
is too high of a standard. He offered the example of an
inebriated person who raped someone who was incapacitated. He
asked, "Is it reckless disregard if you yourself are
inebriated?"
REPRESENTATIVE VANCE expressed concern with changing the wording
from "who" to "when" so that it states, "when the offender
knows." She asked, "What if they say, 'Well, I didn't know.'?"
She asked whether that would automatically make the crime not a
crime.
REPRESENTATIVE TARR responded that in redefining sexual assault
in the second degree, [AS 11.41.420(a)] currently reads, in
part, as follows:
(a) An offender commits the crime of sexual assault
in the second degree if
(1) the offender engages in sexual contact with
another person without consent of that person;
(2) the offender engages in sexual contact with a
person
(A) who the offender knows is mentally
incapable;
REPRESENTATIVE TARR, in response to Representative Vance,
relayed that under Version G, no language would be eliminated;
"who the offender knows is mentally incapable" would be replaced
with "the offender knows or recklessly disregards that the other
person is mentally incapable". Using this language would more
clearly define the circumstances in which it would be applied.
In response to Representative Fields, she said that one of the
challenges regarding crimes involving two individuals with
competing stories is that the standard should not be so low as
to allow too much opportunity to avoid prosecution, but not so
high that the standard cannot be met. She agreed that the
committee should hear testimony from DOL.
3:15:36 PM
CO-CHAIR FIELDS suggested that the original version of SSHB 20,
updated an anachronistic definition of "consent" regarding
intercourse with children. He asked, "Why would we not ...
update that anachronistic language?"
REPRESENTATIVE TARR answered that staff is attempting to update
all of the sections, which include the failure to report [a
violent crime committed against] a child, the failure to report
[a violent crime committed against] an adult, the military code
of justice, and the overall definition of consent. She
maintained that updating the statutes is a significant
undertaking; every word is important in terms of its implication
and how it is applied in a courtroom; and the effort will be a
significant accomplishment by the legislature.
REPRESENTATIVE TARR referred to slide 8, entitled "Section 4:
Sexual Assault Examination Kits," and discussed the three
requirements, shown on the slide as follows:
1. That all sexual assault examination kits are sent
to the crime lab within 30 days of collection
2. That all sexual assault examination kits be tested
within one year
3. That victims be notified by law enforcement within
two weeks of receiving the results that the kit has
been tested
REPRESENTATIVE TARR explained that the only change under Version
G is the requirement that kits be tested within one year instead
of six months. She expressed her desire that there be a 30-day
standard; it is the best practice to which states aspire. She
mentioned that when her office began this effort four years ago,
the length of time for the testing of kits was 18 months;
currently the average is 10 months. She maintained that meeting
a six-month timeline would require additional staffing, which is
reflected in the fiscal note (FN); it would require a policy
decision and support from the legislature to add these new
positions. She relayed that personnel at Alaska's Scientific
Crime Detection Laboratory ("crime lab") [Department of Public
Safety (DPS)] indicated that with existing staffing, they can
meet the one-year testing timeline. She asserted that
shortening the timeline for testing would be an important
improvement to public safety; the aggressive timeline was
intentional in order to attach the corresponding FN and address
the fundamental questions: What means justice? What is justice
for a victim? How long should a victim have to wait?
CO-CHAIR FIELDS expressed his viewpoint that one year is too
long [to wait for a sexual assault examination kit to be
tested]; he would prefer the proposed legislation stipulate six
months.
REPRESENTATIVE STORY stated that she also would like a shorter
time frame, and it is important to have the information about
additional cost for meeting the six-month timeline. She
maintained that it is important for the victim to be kept
abreast of the progress regarding the processing of the kit and
the timeline.
REPRESENTATIVE WOOL stated that he supports kits being tested as
soon and as quickly as possible. He maintained that legislators
do not know the workload of the crime lab personnel; state
agency [budgets] have been cut for many years. He expressed his
belief that arbitrarily setting timelines is irresponsible.
REPRESENTATIVE VANCE relayed that it is exciting to hear that
DPS has been trying to expedite the process and has made
significant improvements. She expressed that it would be
helpful to know the costs and demands that the timeline would
impose on DPS; however, this issue is just one piece of the
criminal justice system, and a shorter timeframe does not ensure
that the other pieces of the system would automatically be
expedited. She said that she supports being provided with
information on the whole picture of what justice would look like
in a sexual assault case to ensure that funds are not being
taken from one piece and injected into another piece without
improving the whole system.
CO-CHAIR FIELDS asked to hear from crime lab personnel regarding
the feasibility of the six-month time period.
REPRESENTATIVE TARR interjected that the forthcoming FN for the
six-month timeline would show a cost of $662,200.
3:22:38 PM
DAVID KANARIS, Assistant Chief, Alaska Scientific Crime
Detection Lab, DPS, relayed that that the FN reflects the
addition of four positions, which is the estimated additional
staff needed to meet the timeline of six months. He
acknowledged that six months is a significant delay and his hope
is to shorten it eventually. He said that he wishes to create a
dedicated sexual assault team whose only function would be to
process the kits as soon as possible; to do that, the lab would
need three forensic scientists and one forensic scientist
supervisor to handle all the case management and associated case
information.
REPRESENTATIVE TARR relayed that in the FN, the four positions
would cost $453,200; the consumables needed to process an
additional 120 kits would cost $122,000. She stated that she
supports the costs associated with the six-month timeline:
however, if the $662,000 is not appropriated, then the process
time would be one year.
REPRESENTATIVE TARR, in response to Representative Vance, stated
that due to budget cuts, DOL was short 27 positions;
consequently about 7,000 sexual assault cases were left
unprosecuted over a two-year period. She said that at that
time, DOL prioritized homicides, sexual assaults, and abuse of
minors; however, at the same time, Anchorage had a spike in
homicides. The reduction in staffing and the increase in more
difficult cases for prosecution resulted in the two-year time
frame. She agreed with Representative Vance that other pieces
of the system have an impact. She offered that five more
prosecutors were added to staff last year.
REPRESENTATIVE TARR continued with slide 8 and drew attention to
the new subsections (b) and (c) under Section 4 of Version G
[page 4, lines 18-23]. She read from the slide as follows
[original punctuation provided]:
New: (b) criminal action can not be dismissed if
deadline not met
(c)If case is resolved before kit is tested, timeline
does not apply (plea deal)
REPRESENTATIVE TARR explained that subsection (b) would address
the concern that the crime lab or a law enforcement agency
failing to meet a deadline might impact a case negatively.
Under Version G, this would not be allowed to occur. She added
that subsection (c) addresses the possibility of a plea deal
occurring before a kit is tested.
3:26:50 PM
REPRESENTATIVE TARR referred to slides 9 and 10, which address
Section 5 and Section 6 of Version G, and stated that in these
two sections language was added to require the reason a kit was
not tested [to be added to the report to DPS]; Section 5
involves preparation of the report, and Section 6 involves
delivering the report to the legislature.
REPRESENTATIVE TARR turned to slide 11, which addresses Section
7 of Version G, to direct attention to the actual wording used
in the Sexual Assault Kit Initiative (SAKI) reports for why a
kit was not tested. She maintained that using this language
would make statutes consistent with sexual assault examination
kit reporting practices. The language was shown on slide 11, as
follows:
A sexual assault examination kit is ineligible for
testing if the law enforcement agency or state
department finds that the sexual assault examination
kit
(1) Is scientifically unviable
(2) Does not meet eligibility requirements for
inclusion in the combined DNA Index System Database;
or
(3) Was collected from a person who wishes to remain
anonymous
REPRESENTATIVE TARR moved on to slide 12, entitled "Section 8:
Applicability," and stated that under Version G, the
applicability of the proposed legislation would apply to
offenses committed on or after the effective date. She turned
to slide 13, entitled "Section 13: Effective Date," and stated
that under Version G, the effective date would be January 1,
2021, to allow ample time for implementation.
REPRESENTATIVE TARR, to address Representative Story's question
about victim notification, said that staff struggled with how to
address this issue. She mentioned software that allows access
to a sexual assault examination kit database using a secure
login and unique identifier to track the kit. She stated that
the software costs $135,000 to purchase and maintaining the
database costs $80,000 per year. She maintained that tracking
becomes less important as the timeframe is truncated. She
offered that with the one-year timeline, set by Version G, it
becomes a question of where the state wants to expend its funds.
She maintained that her preference is to use funds to hire staff
in the hope that with more timely processing, notification of
victims becomes less of an issue. She suggested that with a
two-year wait for test results, a victim, who must continually
call and retell his/her story, is re-traumatized. She mentioned
that Version G would require that law enforcement notify the
victim within two weeks.
3:31:06 PM
REPRESENTATIVE STORY expressed that it is very important for
victims to be informed timely.
CO-CHAIR FIELDS stated that SSHB 20, Version G, would be held
over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB0020 Sponsor Statement 3.21.19 Version G.pdf |
HSTA 3/21/2019 3:00:00 PM HSTA 4/18/2019 3:00:00 PM |
HB 20 |
| HB0020 Sectional Analysis 03.21.19 Version G.pdf |
HSTA 3/21/2019 3:00:00 PM HSTA 4/18/2019 3:00:00 PM |
HB 20 |
| HB0020 Ver G 3.21.19.pdf |
HSTA 3/21/2019 3:00:00 PM HSTA 4/18/2019 3:00:00 PM |
HB 20 |
| HB0020 Summary of Changes Version S to G 3.21.19.pdf |
HSTA 3/21/2019 3:00:00 PM HSTA 4/18/2019 3:00:00 PM |
HB 20 |
| HB0020 State Affairs PresentationVersion G.pdf |
HSTA 3/21/2019 3:00:00 PM HSTA 4/18/2019 3:00:00 PM |
HB 20 |