Legislature(2017 - 2018)GRUENBERG 120
03/07/2017 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| HB112 | |
| HB1 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 127 | TELECONFERENCED | |
| *+ | HB 112 | TELECONFERENCED | |
| += | HB 1 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 112-SEXUAL ASSAULT BY PEACE OFFICERS
3:54:30 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 112, "An Act relating to sexual assault
by a peace officer against a person who is a victim, witness, or
perpetrator of a crime."
3:54:46 PM
REPRESENTATIVE MATT CLAMAN, Alaska State Legislature, as prime
sponsor of HB 112, paraphrased from paragraph one of the sponsor
statement, which read as follows [original punctuation
provided]:
House Bill 112 adds specific language to AS 11.41.425
and AS 11.41.427 criminalizing sexual penetration and
sexual contact with victims, witnesses, or defendants
under active investigation by a law enforcement
officer, effectively clearing up a gray area in the
law. Current law criminalizes police sexual misconduct
through two mechanisms: 1. coercion- it is considered
sexual assault if an individual is coerced into sexual
contact or intercourse by threat of arrest, or, 2. in
custody-it is considered sexual assault for law
enforcement to have sexual contact with a person who
is in their custody or apparent custody. Neither of
these instances addresses the use of sexual contact as
an investigative tool. There have been reports of law
enforcement officers engaging in sexual contact prior
to arrest, especially in instance of undercover
operations, without repercussion.
REPRESENTATIVE CLAMAN concluded by saying that passing HB 112
would clarify a gray area regarding misconduct to protect both
law enforcement officers and the public.
3:55:57 PM
OWEN PHILLIPS, Staff, Representative Matt Claman, Alaska State
Legislature, on behalf of Representative Claman, prime sponsor
of HB 112, paraphrased from paragraph four of the sponsor
statement, which read as follows [original punctuation
provided]:
The goal in passing House Bill 112 is clarifying a
gray area regarding misconduct to protect law
enforcement and the public alike. This bill serves to
protect potential victims of sexual assault, and
provide clear guidelines to law enforcement to ensure
integrity and public confidence.
MR. PHILLIPS went on to say that currently Alaska law does not
explicitly prohibit the use of sexual contact as an
investigative tool. He stated that a research study at the
University of Alaska Fairbanks (UAF) demonstrated that a quarter
of the study's 40 participants, comprised of current and former
sex workers, had been sexually assaulted by law enforcement
officers. He referred to the Community United for Safety and
Protection (CUSP) report, titled "Expanding Protection for
Sexual Assault Victims A Report in Support of AK House Bill 112
2/23/17," which details some of those assaults.
MR. PHILLIPS expressed his belief that there is strong support
for HB 112 and paraphrased from paragraph three of the sponsor
statement, which read as follows [original punctuation
provided]:
In addition, a Hays Research Group survey of 900
Alaskans showed that 92.9% were unaware that police
were allowed to have sex during prostitution stings
and 90.2% felt that it should be against the law for
law enforcement to have sexual contact with people
they are investigating.
4:00:36 PM
REPRESENTATIVE LEDOUX referred to the results of the UAF survey
described in paragraph two of the sponsor statement, which read
as follows [original punctuation provided]:
A research study at the University of Alaska Fairbanks
surveyed a diverse group 40 people who had worked in
Alaska's sex trade. Of those individuals, 26% said
they had been sexually assaulted by a law enforcement
officer. 60% of those who had been coerced or
manipulated, and 50% of those who had been forced had
been sexually assaulted by an officer.
REPRESENTATIVE LEDOUX asked if those who have been sexually
assaulted by a law enforcement officer are "covered" under
current law.
4:01:50 PM
HILARY MARTIN, Attorney, Legislative Legal Counsel, Legislative
Legal Services, Legislative Affairs Agency, answered that past
instances of sexual assault are covered under the law as it read
when the acts were committed. She added that HB 112 would apply
to offenses that occurred on or after the effective date of the
proposed legislation.
REPRESENTATIVE LEDOUX requested an explanation of the statistics
in paragraph two of the sponsor statement and asked if all the
individuals represented by the percentages are covered under
current law.
REPRESENTATIVE CLAMAN responded that it is a challenge to
determine consensual versus coercive conduct in a sex worker
population. He offered that the intent of HB 112 is to provide
protection in instances where consent is a more complicated
issue, rather than to address more violent sexual assaults.
REPRESENTATIVE LEDOUX offered that she does not understand what
paragraph two [of the sponsor statement] has to do with the
proposed legislation.
4:04:08 PM
TERRA BURNS, Community United for Safety Protection (CUSP),
stated that she conducted the UAF research cited in the sponsor
statement. She relayed that a quarter of those surveyed had
been sexually assaulted by a police officer, and those surveyed
used their own definition of sexual assault rather than a legal
definition. She said that about 30 percent of the sex workers
surveyed met the legal definition of a sex trafficking victim
due to being victims of force, fraud, or coercion within the
industry. Of those 30 percent, 60 percent reported being
sexually assaulted by a peace officer.
REPRESENTATIVE LEDOUX asked what definition of sexual assault
the survey used.
MS. BURNS answered that the survey respondents used their own
definition, and no legal definition was given to them. She
relayed two of the questions asked: "Have you had an officer
collect a freebie from you during a prostitution sting
operation?" and "Have you been sexually assaulted by a peace
officer?" She asserted that there was a strong correlation
between the two questions regarding the answers given.
4:05:59 PM
REPRESENTATIVE KNOPP referred to paragraph three in the sponsor
statement and asked for verification that 10 percent of the 900
people surveyed thought it was acceptable for law enforcement
officers to have sexual contact with individuals under
investigation.
MS. BURNS replied that 6.4 percent of those surveyed said that
[sexual contact in these instances] should not be illegal, and
3.5 percent said they did not know or refused to answer.
4:07:26 PM
REPRESENTATIVE WOOL referred to the title of the bill, which
read, "An Act relating to sexual assault by a peace officer
against a person who is a victim, witness, or perpetrator of a
crime." He asked if HB 112 refers to any crime or just sex
crimes.
REPRESENTATIVE CLAMAN answered that HB 112 refers to any crime.
He gave as an example the Alaska Supreme Court case of 2014
[State of Alaska v. Public Safety Employees Association], which
is described in the Alaska Dispatch News article, titled
"Supreme Court: Trooper shouldn't have been fired for sex with
domestic violence victim" and included in the committee packet.
He explained that this case involved a trooper who responded to
a domestic violence incident. The trooper returned the next
morning, out of uniform, to talk to the victim, and he had
sexual intercourse with her at that time.
REPRESENTATIVE WOOL posed the hypothetical situation: A liquor
store is robbed, and the clerk is a witness to the crime. The
police officer investigating the crime takes the clerk's witness
account. The investigation is open for six months or longer.
The officer happens to go into the liquor store six months later
and strikes up a conversation with the witness of the crime.
The case is still unresolved. He decides to date the witness as
a private citizen. Representative Wool asked if under HB 112,
it would be illegal for that police officer to have a
relationship with the witness.
REPRESENTATIVE CLAMAN said that he and his staff are exploring
options for addressing situations such as presented by
Representative Wool, both regarding active investigations and
dormant investigations. He expressed his belief that there is a
gray area regarding the point at which an investigation is
dormant. He said that the concern is regarding police officers
using their positions of influence to engage in sexual relations
at a time when they are still actively involved in the
investigation.
4:10:26 PM
REPRESENTATIVE LEDOUX asked if HB 112 would apply to
investigations of traffic accidents.
REPRESENTATIVE CLAMAN pointed out that Section 1 and Section 2
of HB 112 reference "a crime under investigation," and he stated
that a traffic accident is not a crime.
REPRESENTATIVE LEDOUX mentioned that "reckless driving" is a
crime. She expressed her concern that the proposed legislation
be limited to truly egregious situations as opposed to more
routine situations.
REPRESENTATIVE CLAMAN responded that it was for that reason HB
112 specifically refers to criminal situations in which police
are involved, as opposed to civil situations.
REPRESENTATIVE LEDOUX offered the situation in which a police
officer was investigating a vehicular assault. She conceded
that while a police officer asking for a "freebie" was "a pretty
tacky thing to be doing," asking a witness for a date weeks
after the event "doesn't sound all that awful."
REPRESENTATIVE CLAMAN responded that Representative LeDoux
raised good points. He said that there are many issues
regarding employment place conduct and using positions of power
and authority inappropriately. He opined that in the scenario
described by Representative LeDoux, most people would agree that
a public safety officer asking a witness out two weeks after the
investigation would be too soon and would be considered using a
position of authority inappropriately. He added that he did not
know police departments' views on this.
4:14:57 PM
REPRESENTATIVE WOOL asked if it is appropriate for a police
officer, in the course of an investigation, to have sex with a
prostitute to prove that he/she is a prostitute.
REPRESENTATIVE CLAMAN answered that this is a gray area in the
statute as it is currently written, and he attested that the
intent of the proposed legislation is to make this clearly
illegal.
REPRESENTATIVE WOOL asked if it is legal for a police officer to
use drugs in the course of a drug sting operation. He added
that he was not aware that it was legal for a police officer to
engage in sex with a prostitute in the interest of making an
arrest.
REPRESENTATIVE CLAMAN said that his office has yet to receive a
clear answer regarding the use of drugs by undercover officers.
He maintained that the intent of HB 112 is to address just the
one issue - sexual assault by a peace officer.
4:17:12 PM
REPRESENTATIVE KNOPP referred to Representative LeDoux's
question about a car accident, and he maintained that until
charges are actually filed, there is no crime, only a suspicion.
He opined that a police officer should exercise discretion
regarding relationships with anyone involved in the accident, if
it is still being actively investigated. He asked if an
incident is a crime, if charges have not yet been filed.
REPRESENTATIVE CLAMAN maintained that the existence of a crime
is not dependent on charges filed. He offered that there are
many incidents that everyone would consider a crime and for
which no charges have been filed.
4:19:44 PM
REPRESENTATIVE WOOL referred to his scenario regarding the
liquor store robbery. He suggested that over the course of an
investigation, a relationship could develop between the police
officer and the witness that is not exploitive or coercive, like
a patient developing a relationship with his/her caregiver over
time. He stated that under HB 112, the police officer would be
committing a crime. He commented that although the intent of HB
112 is to prevent crimes against sex workers, it could apply to
situations that are "more nuanced."
REPRESENTATIVE CLAMAN suggested that the liquor store
investigation might conclude quickly.
REPRESENTATIVE WOOL agreed, but he suggested that it "seems kind
of silly" for the police officer to have to wait for someone to
be arrested to ask the witness out.
REPRESENTATIVE CLAMAN responded that his staff is reviewing
issues such as have been presented.
4:21:48 PM
REPRESENTATIVE LEDOUX asked for someone from Legislative Legal
and Research Services to give an opinion on whether a "gray
area" exists in current statute [relating to the legality of
sexual contact by a law enforcement officer with the victim,
witness, or defendant under active investigation by the law
enforcement officer].
4:22:23 PM
MS. MARTIN answered that she believes there are unanswered
questions regarding active sting operations. She referred to
the example of an undercover drug sting operation and said that
law enforcement officers are not usually arrested for buying
drugs during the operations. She maintained that the crime of
prostitution does not require the act to be committed, but only
the offering of [prostitution] services.
REPRESENTATIVE LEDOUX asked why HB 112 would apply only to
police officers and not district attorneys. She suggested that
district attorneys could conceivably date witnesses.
REPRESENTATIVE CLAMAN replied that the concerns that led to the
introduction of HB 112 involved police officers. He stated that
his office has not received any reports of similar issues with
prosecutors. He added that if his staff receives information
suggesting a similar problem regarding prosecutors, it could be
added to the proposed legislation.
4:25:13 PM
REPRESENTATIVE LEDOUX asked why HB 112 would be limited to
investigations. She added that when someone has been charged,
the investigation is theoretically over, but a trial could last
a long time.
REPRESENTATIVE CLAMAN responded that limiting the application of
HB 112 to investigations was an attempt to exclude dormant
investigations.
4:26:54 PM
REPRESENTATIVE TUCK asked if HB 112 would apply to
Transportation Security Administration (TSA) agents.
REPRESENTATIVE CLAMAN answered that it is not entirely clear if
TSA officers would be investigating crimes.
4:27:42 PM
REPRESENTATIVE BIRCH expressed his support for HB 112. He
related an incident occurring in Anchorage involving a rogue
police officer, Anthony Rollins, which cost the city $5-10
million in legal fees. Representative Birch relayed that the
officer was found in a compromising position in a police
facility by a supervisor, who then walked out. He asked if HB
112 would make that kind of engagement clearly illegal.
REPRESENTATIVE CLAMAN mentioned that Mr. Rollins was charged and
convicted with first degree and possibly second degree sexual
assault, which are crimes under current statutes. He said that
HB 112 would address third and fourth degree sexual assaults so
would not have affected that case. He agreed with
Representative Birch that HB 112 would provide additional tools
for sexual assault convictions.
4:30:02 PM
REPRESENTATIVE KNOPP stated that he supports HB 112. He
asserted that HB 112 would make the law "black and white" for
police officers regarding contact with a witness, perpetrator,
or victim during the active investigation of a crime.
4:30:58 PM
REPRESENTATIVE JOHNSON stated that she supports the proposed
legislation as it relates to sex workers. She suggested that
committee discussion has identified the need for additional
language to clarify the statutes as they relate to other
situations.
REPRESENTATIVE CLAMAN agreed and suggested that perhaps using
the phrase "active investigation" would narrow down the scope of
the proposed legislation so that it better addresses the
scenarios presented by committee members.
4:33:03 PM
REPRESENTATIVE LEDOUX stated that she supports the intent of HB
112. She said that she has a problem with "just the
investigation" portion of it. She said, "I can't imagine that
it would be okay for a law enforcement officer to have sex,
consensual or not, with somebody who's actually been charged and
is on trial." She added, "Maybe the investigation is over, but
there's a trial ...." She suggested that situation might
constitute an unintended loophole.
REPRESENTATIVE CLAMAN conceded that the committee has posed good
questions, and he said his staff will be consulting with
Legislative Legal and Research Services on the issues raised.
[HB 112 was held over.]