03/18/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB131 | |
| HJR7 | |
| HB148 || HB101 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HJR 7 | TELECONFERENCED | |
| += | HB 131 | TELECONFERENCED | |
| += | HB 187 | TELECONFERENCED | |
| += | HB 188 | TELECONFERENCED | |
| += | HB 148 | TELECONFERENCED | |
| += | HB 101 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 18, 2005
1:11 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 131
"An Act increasing the criminal classification of theft of an
access device and of obtaining an access device or
identification documents by fraudulent means; increasing the
criminal classification for certain cases of fraudulent use of
an access device; and providing for an effective date."
- MOVED HB 131 OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 7
Proposing amendments to the Constitution of the State of Alaska
to correct obsolete references to the office of secretary of
state by substituting references to the office of lieutenant
governor.
- MOVED CSHJR 7(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 148
"An Act relating to trafficking of persons."
- HEARD AND HELD
HOUSE BILL NO. 101
"An Act relating to sex trafficking and tourism."
- HEARD AND HELD
HOUSE BILL NO. 187
"An Act establishing the Alaska capital income account within
the Alaska permanent fund; relating to deposits into the
account; relating to certain transfers regarding the Amerada
Hess settlement to offset the effects of inflation on the Alaska
permanent fund; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 188
"An Act establishing the State of Alaska Capital Corporation;
authorizing the issuance of bonds by the State of Alaska Capital
Corporation to finance capital improvements in the state; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 131
SHORT TITLE: ACCESS DEVICE & I.D. DOCUMENT CRIMES
SPONSOR(S): REPRESENTATIVE(S) STOLTZE
02/09/05 (H) READ THE FIRST TIME - REFERRALS
02/09/05 (H) JUD, FIN
02/23/05 (H) JUD AT 1:00 PM CAPITOL 120
02/23/05 (H) Scheduled But Not Heard
03/02/05 (H) JUD AT 1:00 PM CAPITOL 120
03/02/05 (H) Heard & Held
03/02/05 (H) MINUTE(JUD)
03/18/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 7
SHORT TITLE: CONST AM: SEC. OF STATE REFERENCES
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) STA, JUD, FIN
03/03/05 (H) STA AT 8:00 AM CAPITOL 106
03/03/05 (H) Moved Out of Committee
03/03/05 (H) MINUTE(STA)
03/04/05 (H) STA RPT 4DP
03/04/05 (H) DP: GARDNER, GATTO, ELKINS, SEATON
03/18/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 148
SHORT TITLE: TRAFFICKING OF PERSONS
SPONSOR(S): REPRESENTATIVE(S) KERTTULA
02/14/05 (H) READ THE FIRST TIME - REFERRALS
02/14/05 (H) JUD, FIN
03/07/05 (H) JUD AT 1:00 PM CAPITOL 120
03/07/05 (H) Heard & Held
03/07/05 (H) MINUTE(JUD)
03/18/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 101
SHORT TITLE: SEX TRAFFICKING AND TOURISM
SPONSOR(S): REPRESENTATIVE(S) CROFT
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) JUD, FIN
03/07/05 (H) JUD AT 1:00 PM CAPITOL 120
03/07/05 (H) Heard & Held
03/07/05 (H) MINUTE(JUD)
03/18/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOHN B. SKIDMORE, Assistant District Attorney
Third Judicial District (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 131, responded to
questions.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HJR 7, provided a
comment.
REPRESENTATIVE BETH KERTTULA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 148.
ANDREA DOLL
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
148 and HB 101, and urged passage of both bills.
SARALYN TABACHNICK, Executive Director
Aiding Women in Abuse and Rape Emergencies (AWARE Inc.)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 148 and HB 101,
spoke in support of legislation criminalizing the trafficking of
persons.
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 101.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:11:10 PM. Representatives
McGuire, Anderson, Coghill, Kott, Dahlstrom, Gara, and Gruenberg
were present at the call to order.
HB 131 - ACCESS DEVICE & I.D. DOCUMENT CRIMES
1:12:20 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 131, "An Act increasing the criminal
classification of theft of an access device and of obtaining an
access device or identification documents by fraudulent means;
increasing the criminal classification for certain cases of
fraudulent use of an access device; and providing for an
effective date."
1:12:29 PM
JOHN B. SKIDMORE, Assistant District Attorney, Third Judicial
District (Anchorage), Department of Law (DOL), relayed that he
was available to answer questions regarding HB 131.
REPRESENTATIVE COGHILL said his concern is that the threshold of
$50 is very low over which to become a felon, and suggested that
maybe the focus should be on the criminal intention of taking
someone's identity rather than on the specific value of
merchandise stolen; therefore, even if the a person only stole
$10 worth of merchandise, the felony penalty would be applied
because of the seriousness of identity theft. He offered his
belief that circumstances involving a family member taking
checks or credit cards would be a civil crime or a crime of
passion, and said he questions whether having a $50 threshold
would be so arbitrary as to runs afoul of the law [in some
manner].
MR. SKIDMORE said he has no problem with a threshold lower than
$50. On the question of why it would be okay to have a
threshold as low as $50, he pointed out that the crime of
forgery in the second degree - AS 11.44.505 - has no threshold,
so even if a check is forged for only $5, it still results in a
felony charge; he noted that other states have varying
thresholds, and sometimes no threshold, for making the theft of
an access device a felony.
MR. SKIDMORE said he has no concerns regarding familial
situations involving credit cards, because if both family
members have their names on the credit card, then both family
members are entitled to use it - and the same applies in
situations involving checking accounts - and if only one family
member's name is on the credit card and another family member
uses it, then it becomes a civil matter and the prosecutor is
unlikely to accept such a case because it will be hard to meet
the burden of proof beyond a reasonable doubt that one family
member intended to defraud another family member. The bill
stipulates that the intent is to defraud, and the prosecutor has
the discretion to screen out cases in which family members are
using one another's credit cards. He added that although he
cannot guarantee that the prosecution would never pursue such a
case, it is unlikely absent extenuating circumstances wherein it
can be proven that clearly, one family member didn't have
permission to use the other family member's credit card. He
then remarked that property offenses are never considered crimes
of passion.
REPRESENTATIVE COGHILL indicated that Mr. Skidmore's comments
were helpful.
1:20:02 PM
REPRESENTATIVE COGHILL asked what the difference in intent would
be, for the purpose of a lawsuit, if the proposed threshold of
$50 is kept in the bill. Must the value of the merchandise
stolen be $50 or more before a prosecution can occur?
MR. SKIDMORE said the current threshold is arbitrary and doesn't
affect intent at all; via the language currently in HB 131, the
legislature is deciding whether the use of an access device is a
misdemeanor or a felony, so even if the value of the merchandise
stolen is under the currently proposed threshold of $50, a crime
has still been committed. He opined that the bill will be
helpful in situations wherein someone takes another's identity
by stealing identification cards and access devices, and that
such conduct constitutes a significant problem that must be
addressed because of the potential to adversely affect a
victim's credit history and, hence, his/her life.
REPRESENTATIVE GARA indicated that perhaps the $50 threshold for
using a stolen credit card is acceptable to him, but he has a
concern about Sections 1 and 4 because they appear to say that
just stealing someone's access device or obtaining it by
fraudulent means, regardless of whether it is ever used, will
result in a felony charge. Using a hypothetical example of a
pickpocket who steals someone's wallet and keeps the money but
throws away the credit card, he asked whether that person could
be charged with a felony, or whether the prosecution would have
the discretion to charge the pickpocket with a lesser crime.
MR. SKIDMORE offered his belief that that person could be
charged with a felony because the theft of the credit card
potentially exposes the victim to significant financial damage;
however, the hypothetical pickpocket might not be charged with a
felony if he/she threw away the credit card, since the
prosecution might not be able to show an intent to [use the
credit card]. He noted that he hasn't yet seen anyone such as
the hypothetical pickpocket convicted of a felony for his/her
first offense, adding that that is function of prosecutorial
discretion.
REPRESENTATIVE GRUENBERG mentioned that he might have had a case
"like that."
REPRESENTATIVE GARA said it seems that Section 1 would make it a
felony even if the person threw away the credit card, because
he/she still stole the credit card, and that Section 4 appears
to make it a felony because stealing a credit card, whether
intentional or not, could be looked upon as obtaining an access
device by fraudulent means. He said he is agreeable to having
it be a felony when someone steals a credit card and uses it,
but would not want just the taking of a credit card to be a
felony.
1:29:40 PM
REPRESENTATIVE GRUENBERG noted that AS 11.46.100, which is
referenced in Section 1, says in part:
Sec. 11.46.100. Theft defined.
A person commits theft if
(1) with intent to deprive another of property or
to appropriate property of another to oneself or a
third person, the person obtains the property of
another;
REPRESENTATIVE GRUENBERG offered his belief that by referencing
AS 11.46.100, Section 1 would make just stealing a credit card a
felony.
MR. SKIDMORE concurred, but added that with regard to the
question of whether taking a credit card but not using it should
be a felony, he suggested that the committee should consider
situations in which someone is arrested and is found to have
several credit cards in his/her possession. If mere possession
of someone else's credit card doesn't constitute a felony, then
prosecutors will have to wait until the person is actually
caught using a stolen credit card before they can prosecute
him/her with a felony; he noted, however, that just because one
could be charged with a felony, the prosecution might not feel
that a particular person should be charged with a felony. If,
on the other hand, a person with past convictions is caught with
a stolen credit card in his/her possession, it wouldn't be
appropriate to only be able to charge that person with a
misdemeanor, he opined, and characterized HB 131 as a tool that
the prosecution can use when dealing with people who truly are
trying to commit identity theft.
REPRESENTATIVE GRUENBERG noted that AS 11.46.990(8) says in
part:
(8) "deprive" or "deprive another of property"
means to
(A) withhold property of another or cause
property of another to be withheld from that person
permanently or for so extended a period or under such
circumstances that the major portion of its economic
value or benefit is lost to that person;
(B) dispose of the property in such a manner or
under such circumstances as to make it unlikely that
the owner will recover the property;
REPRESENTATIVE GRUENBERG offered his belief that this
definition, coupled with Section 1 of the bill, would make
stealing someone's credit card and throwing it away a felony.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 131.
REPRESENTATIVE GRUENBERG opined that HB 131 is a good bill
because a credit card is basically "a license to charge up to
the limit."
1:34:41 PM
REPRESENTATIVE COGHILL moved to report HB 131 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 131 was reported from the
House Judiciary Standing Committee.
HJR 7 - CONST AM: SEC. OF STATE REFERENCES
CHAIR McGUIRE announced that the next order of business would be
HOUSE JOINT RESOLUTION NO. 7, Proposing amendments to the
Constitution of the State of Alaska to correct obsolete
references to the office of secretary of state by substituting
references to the office of lieutenant governor.
1:35:17 PM
REPRESENTATIVE ANDERSON, speaking as the sponsor, introduced HJR
7 by paraphrasing from a document titled, "OPENING STATEMENTS ON
HJR 7", which read [original punctuation provided]:
In the Congressional Act of July 24, 1897, federal law
provided for the position of "surveyor general" for
Alaska -- a person appointed by the president and
subject to US Senate confirmation -- and, by the Act
of June 6, 1900, creating Alaska as a District,
assigned to the other duties of that officer
additional duties as "secretary of the district" ex
officio.
The Congressional Act of March 3, 1925, abolished the
surveyor general position but established the position
as Secretary of the Territory. That statute required
that the Secretary of the Territory be a resident
"within the territory for which ...appointed" and hold
office for a fixed term of four years.
The secretary was to execute the powers and perform
the duties of the territorial governor during the
latter's vacancy or absence -- in other words, the
secretary would serve as "Acting Governor."
Basically, however, the secretary was charged to
"preserve and record all the laws and proceedings" of
the legislature and the governor, transmit laws
adopted by the territorial legislature and other
relevant documents to the Congress for review, and
perform other specified duties.
The Secretary of Alaska was, until superseded by the
Secretary of State under the state constitution in
January 1959, a federal officer, but the officer's
role in the affairs of the territory was clearly a
model for the Secretary of State's role under the new
state constitution.
In 1970 the legislature proposed and the voters of
Alaska approved a series of amendments to the State
constitution that changed the name of the office of
"Secretary of State" to the office of "Lieutenant
Governor".
At that time, the drafting attorneys did not catch all
of the references to Secretary of State".
HJR 7 attempts to correct the two references to
"Secretary of State" in the Alaska constitution that
are left. The proposed amendments, if approved by the
Legislature, would be placed before the voters in the
next General Election.
REPRESENTATIVE ANDERSON characterized HJR 7 as a simple
technical revision, and relayed that Legislative Legal and
Research Services has requested this change to the Alaska State
Constitution to alleviate any ambiguity that might be caused by
the two remaining references to "secretary of state." He urged
passage of [HJR 7].
1:37:50 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HJR 7.
REPRESENTATIVE KOTT referred to language on page 2, line 1,
which says, "He", and said this seems to suggest that only males
can be head of departments. He suggested that they change "He"
to "They".
1:39:16 PM
REPRESENTATIVE GRUENBERG noted that language on page 1, line 10,
also uses "he". He suggested that HJR 7 be amended such that
all references to gender in the Alaska State Constitution be
made gender neutral.
REPRESENTATIVE KOTT posited that such a change might engender
greater voter turnout.
REPRESENTATIVE ANDERSON agreed to such a change.
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, pointed
out, however, that such a change is not necessary because
Article XII, Section 10, of the Alaska State Constitution says
in part: "Personal pronouns used in this constitution shall be
construed as including either sex."
REPRESENTATIVE ANDERSON, nonetheless, recommended that "he" be
changed to "they" in Sections 1 and 2 of HJR 7.
REPRESENTATIVE KOTT said he would prefer that change.
1:41:31 PM
REPRESENTATIVE KOTT made a motion to adopt Amendment 1, to
change page 1, line 10, such that it says, "while they were a
member, and to change page 2, line 1, such that it says, "They".
REPRESENTATIVE GRUENBERG opined, however, that conforming
changes should be made throughout the constitutions.
CHAIR McGUIRE asked whether there were any objections to
Amendment 1. There being none, Amendment 1 was adopted.
1:42:35 PM
REPRESENTATIVE ANDERSON moved to report HJR 7, as amended, out
of committee with individual recommendations and the
accompanying fiscal note. There being no objection, CSHJR
7(JUD) was reported from the House Judiciary Standing Committee.
HB 148 - TRAFFICKING OF PERSONS
HB 101 - SEX TRAFFICKING AND TOURISM
CHAIR McGUIRE announced that the final order of business would
be a hearing on two bills: HOUSE BILL NO. 148, "An Act relating
to trafficking of persons."; and HOUSE BILL NO. 101, "An Act
relating to sex trafficking and tourism."
1:43:12 PM
REPRESENTATIVE BETH KERTTULA, Alaska State Legislature, sponsor
of HB 148, noted that at the bills' last hearing, some questions
were posed that she'd like to respond to at this time. With
regard to the question of why [the Department of Law's proposed
change] includes language about coming to the state, she said
that the Department of Law (DOL) recommended such language
because "it's about the easiest way to distinguish trafficking,
or the potential crime, from the already existing crimes of
promoting prostitution and coercion." She pointed out, however,
that such language could result in situations being treated
differently depending on whether the persons were brought in
from another country or state, or whether they were brought in
to a community from another area of Alaska.
REPRESENTATIVE KERTTULA suggested that this issue be one that
the committee address, and relayed that the groups who deal with
this crime are divided on this issue. Some groups support the
idea that trafficking naturally includes transporting, she
noted, but suggested that such groups are not considering "the
problem we face here in Alaska," where a woman from Eek or
Egegik could be in just about as much trouble, if she were
picked up and brought out of the village, as a Ukrainian woman
would be - she wouldn't have a support system and wouldn't speak
the language and might be frightened of authority figures. So
although the DOL's suggested change will address one issue, it
might not be the most appropriate given the potential situations
that could occur in Alaska, she concluded.
1:46:38 PM
ANDREA DOLL explained that she has just returned from a
presentation on [human] trafficking given by the U.S. Agency for
International Development at the United Nations' headquarters in
New York. She went on to say:
The U.S. government has made trafficking in persons a
high priority through legislation, a presidential
directive, and an anti-trafficking presidential
initiative. Trafficking in human beings has drawn
international attention, and we know that there are
between 800,000 and 900,000 persons trafficked
annually between international borders. This figure
does not include numbers that are trafficked within a
country. There is evidence that Alaska is both a
transit corridor as well as a destination. It is a
criminal justice problem; there is a critical need for
state, sub-regional, regional, and international
agreements to address this problem.
Alaska will make its contribution by criminalizing the
trafficking of persons by making it an unclassified
felony. Traffickers will then be prosecuted ... at
the state [level] as well as at the federal level.
There'll be [a] no tolerance attitude for this
criminal activity within our state borders. Very few
people in the United States are aware of the problem,
much less it's size and toll. Those women and
children who have been rescued from servitude suffer
from posttraumatic stress disorder similar to combat
victims and victims of state organized torture. The
practice of trafficking spawns health problems, high
HIV/AIDS [human immunodeficiency virus/acquired
immunodeficiency syndrome], [and] high rates of
Hepatitis B [and] cervical cancer - it is a fertile
ground for criminal activity.
1:49:24 PM
MS. DOLL continued:
It is a calamity. Yet the United States is a prized
destination because it offers a market. By taking
action on House Bill 148 and House Bill 101, the state
of Alaska will create awareness of the problem, its
human toll, and will be taking needed steps to
implement educational programs [to] create awareness
within the business sector - particularly the tourism
industry and internet providers that advertise mail
order brides. I - indeed, the civilized world - urges
this body to pass House Bill 148 and House Bill 101.
REPRESENTATIVE COGHILL asked how one becomes aware of the issue
of human trafficking, particularly with regard to Alaska.
MS. DOLL replied that she can not say how one becomes totally
aware of all the details, but added that it is very clear that
studies have been done, and relayed that although she can
provide the committee with data on individual countries, she
doesn't have data regarding Alaska specifically.
1:51:45 PM
SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse
and Rape Emergencies (AWARE Inc.), said she would be speaking in
support of "this legislation making it a crime to traffic in
persons." In recent times, she relayed, AWARE Inc. staff can
recollect two instances of providing services to women who were
brought to Juneau, Alaska, and forced to engage in forced labor,
sexual conduct, and/or involuntary servitude. She surmised that
if AWARE Inc. is serving two such women, then there are probably
many more women in similar situations whom AWARE Inc. is not
serving. She relayed that the women were initially told that
they would be provided with jobs and economic opportunities, yet
once they were here, the jobs did not exist and the women were
forced into "economic and sexual exploitation."
MS. TABACHNICK said that the experiences of these women were
horrific, and the difficulties they experienced in coming to
AWARE Inc. for help was similar to the difficulties experienced
by mail order brides, in that they were told that they would be
incarcerated and sent back to their countries of origin, where
they had been living in poverty and/or abuse. This is often the
message given by perpetrators of abuse, she noted, adding that
AWARE Inc. works comprehensively with abused immigrant women in
these situations; therefore, having legislation that
criminalizes the trafficking of persons in Alaska will serve to
protect victims and perhaps give them the courage to step
forward and ask for the intervention, support, and advocacy they
deserve. Within the U.S., she noted, "we now have the Victims
of Trafficking and Violence Protection Act [of 2000]," and said
she is hopeful the Alaska State Legislature will pass similar
legislation this session.
MS. TABACHNICK, in response to questions, relayed that AWARE
Inc. became incorporated in 1978; that AWARE Inc. provides
services to victims of domestic violence and sexual assault in
Juneau and northern Southeast Alaska, services which include
safe shelter, legal advocacy, information and referral,
outreach, transportation, counseling and support in elder abuse,
child abuse, domestic violence and sexual assault situations,
and a 24-hour crises line; that the aforementioned women might
have originally called AWARE Inc. because they were victims of
sexual assault; and that although she is unable to speak in
detail about the aforementioned women in particular because of
confidentiality issues, AWARE Inc. is working with an immigrant
and refugee organization in Anchorage in an effort to provide
these women with the services they need.
1:55:47 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 148 and HB 101.
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, sponsor of
HB 101, mentioned that others may wish to speak on the bills at
a later time, and asked that public testimony be left open.
CHAIR McGUIRE said she would keep public testimony open, and
relayed that written testimony would be accepted by the
committee even after the bills move from committee.
1:56:20 PM
REPRESENTATIVE CROFT offered a comparison of 101, 148, and the
DOL's proposed change. Although all three items address the
issue of trafficking of persons for labor or sexual services,
the latter portion of Section 1 of HB 101 - proposed 11.66.410 -
specifically deals with Alaskan tour companies providing and
advertising sex tourism services for people who are traveling
out of state to other countries. Although it is known that
"this" is a huge, international problem, it is not known how
many companies advertise such services or how they advertise
such services. He indicated that there has been a major push by
many groups, agencies, and individuals to deal with "this"
problem, but Alaska doesn't yet have anything that makes it a
crime to provide such services.
CHAIR McGUIRE offered her understanding that there is precedent
for putting a law in place even before it known whether a
particular crime is being committed.
REPRESENTATIVE CROFT opined that all 50 states should make
[providing such services illegal]. He said his intent with
[proposed AS 11.66.410] is to criminalize knowingly providing
sex tourism services. He offered his belief that the difficulty
with the DOL's proposed change, HB 148, and Section 1 of HB 101
revolves around the issue of how to deal with situations in
which a person is brought into the state for the purpose of
performing labor and/or sexual services.
REPRESENTATIVE GRUENBERG characterized [proposed AS 11.66.410 of
HB 101] as a stand alone provision, and referred to page 2,
lines 21-22, which says, "(2) organizes, arranges, sells, or
advertises tourism packages or activities using and offering
sexual acts as enticement for tourism". He said his concern
with such language is that it might apply to a company
advertising a tour to certain counties in Nevada, for example,
where prostitution is legal, thereby interfering with that
company's right of free expression.
REPRESENTATIVE CROFT opined that Nevada can do what it wants
with regard to legalized prostitution, but since Alaska has
decided to criminalize prostitution, it can also decide that it
doesn't want travel services being offered for the purpose of
hiring prostitutes anywhere else. He said he didn't see such a
prohibition as interfering with the right of free expression.
REPRESENTATIVE GRUENBERG pointed out, however, that advertising,
which is referred to in proposed AS 11.66.410, is considered a
form of free expression.
REPRESENTATIVE CROFT replied, "I have no right to advertise
criminal conduct just because it's communicative, and assuming
you can ... criminalize the underlying conduct, ... the
advertising of it can be [criminalized], I believe."
REPRESENTATIVE GRUENBERG concurred, but noted that not all
counties in Nevada have legalized prostitution, and relayed an
example of an establishment built on skids that was located at
the junction of three counties; as the different counties
changed their laws regarding prostitution, the establishment
would change location just by moving its building.
REPRESENTATIVE ANDERSON offered a hypothetical example of
marijuana being made legal in Alaska and companies in other
states advertising tours to Alaska for the purpose of smoking
marijuana. He suggested that the advertisement of such would be
illegal.
REPRESENTATIVE GRUENBERG pointed out, however, that under
Representative Croft's argument, since gambling is illegal in
Alaska but not in Nevada, the advertisement of tours to Nevada
for the purpose of gambling could be criminalized.
CHAIR McGUIRE suggested that the bill could specify that it
applies if the location the advertisement pertains to has
criminalized the behavior; however, she added, such specificity
could "take the teeth out" of the bill.
REPRESENTATIVE CROFT noted that some countries might make
prostitution illegal but then don't enforce its laws. Referring
to HB 101, he pointed out that paragraphs (1) and (3) of
proposed AS 11.66.410(a) reference proposed AS 11.66.400, which
he said pertains to "child" sexual activity, and posited that
such isn't legal anywhere.
REPRESENTATIVE GRUENBERG suggested, "Why don't you just tie it
back to that."
CHAIR McGUIRE pondered whether the standard for commercial
speech is "less" than it is for [individual speech].
REPRESENTATIVE CROFT remarked, "Commercial speech is less and,
certainly, there's almost none for illegal activities."
2:06:29 PM
REPRESENTATIVE GRUENBERG offered his belief that [a restriction
such as is currently in proposed AS 11.66.410] could criminalize
the entire tour industry for just advertising tours to Nevada.
REPRESENTATIVE CROFT said that perhaps the easiest way to
address Representative Gruenberg's concern would be to have
proposed AS 11.66.410(a)(2) reference AS 11.66.410.
CHAIR McGUIRE remarked that that might be a place to start. She
asked Representative Croft to continue with his testimony.
REPRESENTATIVE CROFT said HB 101 prohibits commercial sex acts
with children under the age of 18 but does not specify that
transportation must be an element. He pointed out that HB 148
uses the terms "forced labor", "sexual conduct", and
"involuntary servitude"; does not specify that transportation
must be an element; and applies to both minors and adults. The
DOL's proposed change, he relayed, does have the element of
transport and specifies that either fraud or force is used. He
offered his interpretation that the DOL's proposed change could
apply to situations wherein someone promises a prospective
employee that the weather is always nice in Alaska.
CHAIR McGUIRE said, "It's a divisible issue there," adding that
she sees what the DOL is attempting to accomplish with regard to
getting at all of the types of situations that could occur. She
mentioned that she has dealt with the issues surrounding "adult
entertainment."
REPRESENTATIVE CROFT said he is concerned that the terms used in
the DOL's proposed change could be overreaching, and indicated
that he is attempting, via HB 101, to deal with sexual conduct
involving children.
The committee took an at-ease from 2:10 p.m. to 2:12 p.m.
2:12:21 PM
REPRESENTATIVE COGHILL, referring to the DOL's proposed change,
said he is wondering whether the language regarding fraudulent
representation would apply to those who misrepresent a business
opportunity, adding that he wouldn't want such people to escape
justice just because they didn't use force to get someone to
come to Alaska.
REPRESENTATIVE GRUENBERG offered his belief that the bill would
not apply to a business opportunity but would apply to a labor
contract.
REPRESENTATIVE CROFT acknowledged that the issues of sex
involving children, sexual activities, and forced labor are
complicated. He said he wants "the bill" to cover situations in
which persons are brought into the state for commercial sexual
activities under false pretenses or via the use of force, and
situations involving bringing persons into Alaska and forcing
them to work for low or no wages under some form of threat. He
suggested that a third issue to consider is whether to
criminalize the transportation of persons only if they are being
brought into Alaska.
REPRESENTATIVE CROFT offered his belief that Representative
Kerttula is more interested in "the transport aspect," and said
he believes that transporting people across state lines [has
been dealt with via] the "Mann Act" [White-slave Traffic Act]
and treats people like property. Therefore, he indicated, he
doesn't want to limit the bill such that it only applies when
people are transported across state lines; the location is
irrelevant when compared to the behavior, and he doesn't see a
substantial reason to limit the bill in that manner even though
it is often the case that people are being brought across state
lines for the aforementioned purposes.
CHAIR McGUIRE referred to the bill she and Representative Gara
introduced last year regarding the licensure of adult oriented
establishments, and noted that testimony indicated that the
young women performing in such establishments were also given
fraudulent information about what the jobs entailed. Therefore,
it doesn't matter much to her that those young women weren't
transported to Alaska from another country, because it is the
acts of coercion and fraud that are inappropriate.
2:17:31 PM
REPRESENTATIVE KERTTULA said one of the hardest issues to
address is that the fundamental description of trafficking
involves transportation. Another problem is that the existing
crimes of coercion and prostitution have elements similar to the
bills before the committee, and so a distinguishing factor must
be used; admittedly, transport is one such distinguishing
factor, so there might be some way of structuring that factor so
that it pertains to transport or travel itself, rather than to
transporting or traveling into the state.
CHAIR McGUIRE said that perhaps they should consider
restructuring all the statutes pertaining to "this whole area,"
so that situations involving transportation are addressed, as
well as situations involving the use of fraudulent means to
recruit performers into a sex-oriented business.
REPRESENTATIVE GRUENBERG noted that sometimes hypothetical
examples are used to illustrate the fallacy in an argument, and
offered an example involving him telling his son to clean up his
room to illustrate how the term "recruiting, by coercion, to
engage in forced labor" could be misinterpreted by some, since
HB 148, for example, doesn't specify that sexual conduct must be
an element in order for the bill to apply.
REPRESENTATIVE KERTTULA said that the term "labor" was included
in HB 148 because it "is such a huge part of trafficking" -
often people are trafficked just for the purpose of performing
labor. She characterized HB 148 as being more inclusive of the
types of things [she wants to address].
CHAIR McGUIRE relayed that because of technical difficulties,
Dennis Holway and Floyd Smith, who were standing by to testify
via teleconference, would be submitting written testimony. She
then asked Representative Kerttula whether there would be any
way to intertwine labor with some of the other elements, so that
the bill wouldn't apply to a situation wherein someone promises
a prospective employee that the weather in Alaska is always
good.
REPRESENTATIVE KERTTULA suggested that the committee provide her
with questions that she can ask of the expert who is scheduled
to give a presentation on sex trafficking on April 1, 2005.
Additionally, perhaps HB 101 and HB 148 could be addressed
separately, she said, characterizing the issue of sex tourism as
an easier issue to deal with, and offered her belief that
Representative Croft would be amenable to working on the bills
separately. With regard to Chair McGuire's question, she said
that part of problem is that if a container car bringing people
into the state is discovered by the authorities, it might not be
possible to prove that the people were being transported for the
purpose of performing sexual acts but it might be possible to
prove they were being transported for the purpose of engaging in
labor.
CHAIR McGUIRE relayed that Representative Anderson has pointed
out that HB 148 defines "forced labor" and "involuntary
servitude" fairly narrowly, and she posited that this definition
should address the concern Representative Gruenberg raised via
the hypothetical example involving his son.
REPRESENTATIVE KERTTULA concurred, adding that perhaps portions
of HB 148 [such as the definitions] could be incorporated into
the DOL's proposed change.
2:24:40 PM
REPRESENTATIVE GRUENBERG turned attention to page 1, line 7, of
HB 148, and noted that it uses the phrase "will be". He said he
would prefer for the language to be changed such that it covers
both "will be" and "has been" situations. He then opined that
the bill shouldn't just cover people being brought into the
state but should also cover those that are being moved around
the state as well those that are being taken out of the state.
CHAIR McGUIRE mentioned that the committee could address the
issue of sex tourism as a separate concept, and then could look
at creating an omnibus bill, or at using what remains of the two
bills and the DOL's proposed change to create a vehicle, or at
creating a committee bill to address the remaining concerns on
this issue. She asked the sponsors and members to give the
issue more thought.
REPRESENTATIVE CROFT offered his belief that the committee was
close to resolving the issue of sex tourism, and offered that
the committee could do as Representative Gruenberg has suggested
and ensure that all three paragraphs of proposed AS 11.66.410(a)
are linked directly with the crime of child prostitution. This
would clarify that he wishes to prohibit "sex tours for child
prostitution purposes." He agreed to would work with staff on a
committee substitute (CS) for HB 101.
CHAIR McGUIRE suggested instead that they simply alter HB 101 in
committee.
2:27:56 PM
CHAIR McGUIRE, referring to HB 101, made a motion to adopt
Conceptual Amendment 1, to remove [proposed AS 11.66.400].
REPRESENTATIVE GRUENBERG noted that if Conceptual Amendment 1
were adopted, then language on page 2, lines 25 and 27, would
have to be altered as well, since they reference proposed AS
11.66.400.
CHAIR McGUIRE concurred.
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 1. There being none, Conceptual Amendment
1 was adopted.
2:29:06 PM
CHAIR McGUIRE suggested that Amendment 2 should redefine a
commercial sex act.
REPRESENTATIVE GRUENBERG remarked that exotic dancing could be
considered a type of commercial sex act.
CHAIR McGUIRE noted that proposed AS 11.66.400 had defined
"commercial sex act" as any sex act for which anything of value
is given to or received by any person.
REPRESENTATIVE GRUENBERG asked whether "sex act" is statutorily
defined.
CHAIR McGUIRE said it is not.
The committee took an at-ease from 2:30 p.m. to 2:31 p.m.
2:31:52 PM
CHAIR McGUIRE relayed that Conceptual Amendment 1 would be
incorporated into a forthcoming CS; she indicated that the CS
will also put proposed AS 11.66.410 "into some semblance of
order."
REPRESENTATIVE GRUENBERG opined that the bill should also
address sex tourism involving adult persons. If an age
threshold is included in the bill, it could be very difficult to
prosecute someone who claims he/she didn't know the victim was
under 18. In response to a question, he said he would no longer
have a concern regarding the right of free expression if the
advertisement is tied to an illegal activity by altering all
three paragraphs of proposed AS 11.66.410(a).
REPRESENTATIVE CROFT referred to proposed AS 11.66.400, which
had been deleted via Conceptual Amendment 1, and noted that the
behavior it prohibited involved engaging in a commercial sex act
with a person under the age of 18 or with a person who was
forced, coerced, or fraudulently induced to engage in that act.
CHAIR McGUIRE opined that AS 11.66.410 should incorporate that
concept.
REPRESENTATIVE GRUENBERG pointed out, however, that the state
will have to prove that the tour operators/organizers knew that
the behavior their clients were engaging in was illegal.
REPRESENTATIVE CROFT suggested that perhaps the committee will
have to define the activity it is criminalizing and then also
make it a crime to travel in order to engage in that criminal
activity.
REPRESENTATIVE COGHILL noted that the federal government has
already made the distinction as to what activity is illegal, and
suggested that they look at any existing federal language on
this issue. He opined that forcing someone to engage in a
commercial sex activity is bad even if the victim is an adult,
and suggested that it constitutes a form of kidnapping.
2:36:42 PM
REPRESENTATIVE GRUENBERG said he supports "this," but added that
he is looking at the practicality of prosecution, and predicted
that the minors from the foreign countries will have to be
brought into the U.S. to act as witnesses.
CHAIR McGUIRE noted that sometimes just having a law in place
can serve as a deterrent, offering her belief that the goal is
to send the message that Alaska is not a good place to "set up
shop."
REPRESENTATIVE GRUENBERG pondered whether other states have
addressed this issue.
REPRESENTATIVE CROFT said he would bring back a CS that
addresses sex tourism, adding that he doesn't care whether the
advertised destinations have legalized prostitution - he wants
to make it illegal to advertise tours for that purpose.
CHAIR McGUIRE offered her belief that the committee wants to see
a vehicle that addresses the trafficking of people, regardless
of age, and suggested that perhaps there could be a different
penalty if the victim is under the age of 18. She also posited
that the labor issue won't be that difficult to address. She
expressed a preference for having a bill that addresses movement
into Alaska, within Alaska, and out of Alaska.
[HB 148 and HB 101 were held over.]
ADJOURNMENT
2:40:57 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:40.
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