Legislature(1995 - 1996)
03/27/1995 01:34 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SJUD - 3/27/95
HB 188 INDECENT PHOTOGRAPHY
REPRESENTATIVE MACKIE, sponsor of HB 188, stated HB 188 was
introduced in response to an incident that occurred in Klawock, in
which video surveillance cameras were found in the ceiling of the
girls' high school locker room. Community outrage was significant,
however there were no applicable statutes under which to charge a
person for that behavior. The sexual exploitation of minors
statute deals with child pornography and things for sale and
redistribution. The Department of Law helped to draft HB 188, and
the House Judiciary Committee ironed out several problems.
Essentially, HB 188 creates the crime of indecent viewing and
pornography, and would be a class C felony if it involved minors,
and a class A misdemeanor if it involved adults. There is no
opposition to HB 188 at this time, however the Council on Domestic
Violence and Sexual Assault has submitted a proposed amendment to
lower the age from 13 to 10. REPRESENTATIVE MACKIE had no opinion
on that amendment and asked the committee to review that issue.
SENATOR ADAMS asked Rep. Mackie his opinion of the definition of
"private exposure" in the House Judiciary committee substitute.
REP. MACKIE stated he agreed with the changes made by the House
Judiciary Committee and noted the committee also added subsection
(e) on line 8, page 2, which deals with affirmative defense. That
subsection addresses an affirmative defense for people who have
surveillance systems for security purposes, such as businesses,
that are properly posted. A floor amendment allows such activity
to not be posted if it is for law enforcement or corrections
purposes.
Number 428
SENATOR ELLIS asked if subsection (e) is so broadly written that it
would prevent a prison guard from being prosecuted for videotaping
a prisoner without approval. REP. MACKIE stated he assumed if the
guard was doing it for personal reasons, without approval, he/she
would be in violation of the statute. SENATOR ELLIS commented the
language implies it would not apply to anyone in a correctional
facility. REP. MACKIE noted page 2, line 6, clarifies that the
surveillance must be conducted for a law enforcement purpose.
Number 410
SENATOR ELLIS questioned whether the "reasonably believed standard"
is a well-substantiated test. REP. MACKIE replied he believes it
is; that language was constructed by Laurie Otto and Dean Guaneli
in the Department of Law. He added part of the criteria for
prosecution should include whether the person had a reasonable
expectation of privacy.
SENATOR ELLIS asked about that expectation in dressing rooms in
clothing stores. He commented if the purpose is to apprehend
shoplifters, the purpose would be legitimate, however if an
employee used the tapes for personal use, the distinction would be
unclear. REP. MACKIE replied the House Judiciary Committee went
from one extreme to the other, then took a moderate approach
regarding notification of surveillance. He stated if notice of
surveillance is posted, the customer is aware.
SENATOR TAYLOR asked if CSHB 188 (JUD)am requires that a
photographic reproduction of some kind be produced or that a
person, knowingly, views the private body parts of another person.
REP. MACKIE clarified it creates a crime for either/or. Viewing
was added to cover a situation in which a person might not
videotape the locker room, but view it.
Number 335
SENATOR ELLIS asked if the penalty is the same for viewing and for
producing tapes. REP. MACKIE replied affirmatively, and explained
it is constructed to include several criteria for the judge to use
when determining the sentence.
SENATOR TAYLOR asked what other states have done to remedy "Peeping
Tom" situations. REP. MACKIE responded he has requested that
information but does not have it. He added his intent was to
remedy the situation that occurred in Klawock, not to create
legislation to deal with all "Peeping Tom" situations. He offered
to get information from other states.
Number 315
SENATOR TAYLOR indicated he understood the concerns addressed by
CSHB 188(JUD)am, but did not believe the bill should be so broad in
scope that several pages of exceptions need to be included. The
bill needs to be targeted to avoid constitutional problems. He
discussed problems with viewing nude beaches, and different
perceptions of privacy. REP. MACKIE replied the nude beach
scenario was discussed at the Dept. of Law, and the attorneys felt
a person cannot expect a reasonable expectation of privacy in such
a situation, therefore such a case would not be prosecuted. The
same situation would hold true if a person stood in front of a
window in a home on a busy street. He reiterated the bill was
drafted as narrowly as possible to avoid the inclusion of all
"peeping Tom" situations.
Number 264
SENATOR TAYLOR noted this bill covers the mental states of both the
viewer and the victim. The court would have to determine the
legitimacy of the victim's expectation of privacy, and whether the
viewer viewing for an appropriate purpose. He suggested those
questions are very subjective. He indicated his desire to review
what other states have done to remedy the problem.
SENATOR ELLIS asked about the relationships between the parties
involved that might exempt them from the crime. REP. MACKIE stated
a party would be exempted if the other party gave permission.
SENATOR ELLIS asked if a couple were married, but one spouse does
not give permission, the viewing or photography would be considered
a crime. REP. MACKIE was unsure.
Number 225
SENATOR ELLIS discussed many famous cases of litigation between
photographers and models over unclear agreements. REP. MACKIE
clarified nothing in CSHB 188 (JUD)am exempts married couples, but
there is every opportunity for a person to give permission. He did
not feel a person should be exempted if the other party was opposed
to the activity; but the court would have to decide whether reason
to believe there was agreement existed. He added he did not intend
to include all types of scenarios in the legislation.
SENATOR TAYLOR discussed the problem with paparazzi-type
photographers, and with serious misunderstandings over knowledge
and consent. He stated the relationship between the parties to be
a serious issue.
Number 164
SENATOR GREEN noted page 2, lines 16 - 18, includes the language
"that the person reasonably believed would not result in the
person's body or body parts being (A) viewed by the defendant; or
(B) produced in a picture;". REP. MACKIE stated that was included
as a key element of prosecution. He added without this
legislation, tabloid photographers could photograph people in the
privacy of their own home without permission.
JAYNE ANDREEN, director of the Council on Domestic Violence and
Sexual Assault (CDVSA), stated the Council reviewed the bill and
believes it addresses a hole in the statutes. CDVSA's main concern
is that the age of 13 is too high, and the implications of this
bill in separating out parents and grandparents who photograph
their children in the bathtub, from abusive photographing. The
CDVSA's proposed amendment lowers the age of consent for children
from age 13 to age 10 to give the child rights in such a situation.
Number 103
SENATOR ELLIS asked if "age of consent" is the correct term for
viewing. REP. MACKIE stated the "age of consent" for a minor to
engage in sexual activity is between 13 and 16; the same age limits
used in the bill to provide consistency with current statutes. The
"age of consent" referred to by Ms. Andreen is in Section 1 of the
bill and requires the consent of the parent or guardian and the
consent of the minor between the ages of 13 and 16. He felt the
question to be whether parental permission should be considered
adequate for 10-12 year olds, or whether the minor's permission
should be required also.
Number 073
SENATOR TAYLOR stated by including the age in the bill, the
legislature would be establishing in statute the ability of a
person, 10 years old or above, to give consent to this act. By
deleting the reference to age this activity could not be done
without consent to a person of any age, and minority laws in
statute would come into effect. Under those laws, a minor cannot
give consent. He discussed current laws for sexual activity of
minors that contain an illogical formula of age differences, and
felt those laws assist in the highest teenage pregnancy rate in the
civilized world. He questioned whether the legislature should
establish a policy allowing children to decide who can view or
photograph them.
Number 015
REP. MACKIE believed it would be ludicrous to allow a minor to
consent to sex but not to have his/her picture taken. He noted
line 9, page 1, requires anyone under the age of 16 to have
parental consent to take their picture, but anyone under 13 would
not have to give consent; the parent could consent for them.
Therefore, an 11 or 12 year old could be photographed nude if
parental permission were granted, even though the minor may not
consent. That is the CDVSA's concern.
TAPE 95-16, SIDE A
SENATOR GREEN commented she is not comfortable with nude
photographs being taken of a nine year old. MS. ANDREEN stated
several CDVSA members were uncomfortable with nude photographs of
children over the age of four or five; the age of ten was a
compromise. A second issue was whether or not the child was
capable of giving permission.
SENATOR TAYLOR noted concern about the issue of what children know
and comprehend at different ages. REP. MACKIE stated he believes
a 13, 14, or 15 year old should understand what is going on, and
that a line needs to be drawn somewhere. MS. ANDREEN remarked the
CDVSA chose the age of 10 because that is when children begin to
develop.
Number 050
SENATOR TAYLOR stated there is an entire industry that wants to
photograph children nude under the age of ten, and some parents
cannot be trusted in certain circumstances. He did not want the
bill to become a "dodging" mechanism for those kinds of people to
avoid punishment.
Number 101
REP. MACKIE advised that child pornography laws specifically
address producing films for sale. CSHB 188 (JUD)am covers the
"Peeping Toms" who view and photograph people, and provides a
vehicle for prosecution.
SENATOR TAYLOR announced he would hold the bill in committee to
review what other states do, and to have the attorney general
review the issues raised during the hearing.
| Document Name | Date/Time | Subjects |
|---|