Legislature(2023 - 2024)BUTROVICH 205
04/03/2024 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB238 | |
| SB165 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 238 | TELECONFERENCED | |
| += | SB 165 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 238-CRIMINAL MISCHIEF 3RD DEGREE
1:31:42 PM
CHAIR CLAMAN announced the consideration of CS FOR HOUSE BILL
NO. 238(JUD) "An Act relating to criminal mischief in the third
degree; and providing for an effective date."
CHAIR CLAMAN said this is the first hearing of HB 238 in the
Senate Judiciary Committee. He invited the bill sponsor to
identify himself for the record and introduce his bill.
1:32:04 PM
REPRESENTATIVE ANDY JOSEPHSON, District 13, Alaska State
Legislature, Juneau, Alaska, sponsor of HB 238. He said the
Anti-Defamation League supports this bill.
REPRESENTATIVE JOSEPHSON said a tragic event that occurred in
Sterling, Alaska was the catalyst for HB 238. A publicly open,
same sex-oriented woman was believed targeted, and she and law
enforcement were attacked. He stated that he and the late former
Representative Gary Knopp worked for years on a bill to
establish a sentence aggravator in AS 12.55.155 for individuals
who target lesbian, gay, bisexual, and transgender (LGBT)
individuals.
REPRESENTATIVE JOSEPHSON spoke with the Anti-Defamation League
(ADL) and the organization recommended an institutional
vandalism bill. The League is the leading organization in the
country fighting antisemitism. HB 238 is not a hate crime bill,
but a criminal mischief property crime bill. Hate crimes are
typically crimes of intent; HB 238 addresses knowingly
committed offenses.
1:35:14 PM
REPRESENTATIVE JOSEPHSON stated that HB 238 distinguishes
between vandalizing public property, like a park bench, and
vandalizing a house of worship. He said vandalism of a synagogue
affects an entire congregation. He said ADL has long supported
crime enhancement statutes for such offenses. The bill is not
aimed at hate crimes but focuses on protecting all places of
worship. HB 238 does not pertain to public buildings like
libraries and post offices. Desecration crimes against public
structures do not evoke the same collective emotional response
felt by a congregation in a place of worship.
1:36:58 PM
REPRESENTATIVE JOSEPHSON said HB 238 allows desecration,
defacement, or damage to a house of worship to be charged as a C
felony at the prosecutor's discretion. Notwithstanding some
federal protections, Alaska needs this law and he offered an
example of such a case involving the Jewish Museum in Alaska.
REPRESENTATIVE JOSEPHSON reiterated that HB 238 is an
institutional vandalism bill. The legislative legal drafter
selected criminal mischief in the third degree based on ADL
recommendations and it mirrors an existing statute that makes
defacing cemeteries a C felony. He noted that both fall within
the parameters of religious significance. Current Alaska law
treats desecration of a park bench and a place of worship the
same. Alaska higher courts do not define defacement, damage, or
desecration but use the Webster's Dictionary for interpretation.
He cited the Bergman case (2016) and Willet case (1992) for
existing legal definitions related to repair costs. He said
there is not a lot of jurisprudence on defining defacement,
damage, or desecration.
1:39:57 PM
REPRESENTATIVE JOSEPHSON addressed the culpable mental state
provisions of HB 238. He offered a supposition. If someone spray
painted several homes and one of them turned out to be a church,
HB 238 might apply if it could be shown the individual was aware
it was a religious building. He explained that this is a
knowing crime, it cannot be committed accidentally. He stated
that while the prosecutor would have to show a substantial
probability, there is a subjective element to it that would
require awareness, not a random event. He repeated a Department
of Law staffs definition of knowingly, stating it is just
short of intentionality, and he said it requires some
forethought. He said random acts would not be prosecuted
unfairly under the "knowingly" standard and said the public
should be reassured on that point. He said these are the
fundamental aspects of HB 238 that he wanted to share.
1:41:37 PM
SENATOR TOBIN asked whether HB 238 includes indigenous sacred
monuments or sacred spaces that may reflect a different
interpretation of religion from the Western construct.
1:41:58 PM
REPRESENTATIVE JOSEPHSON replied that there would always be some
prosecutorial discretion. He said the location must be real
property used for religious education or worship. For example, a
Christian Science reading room located within a mall may meet
the criteria if the vandalism targeted that space specifically
and it is owned, leased, or used by a religious organization. He
explained that if someone tagged the entire mall and included a
Hallmark store, the Hallmark store would not meet the elements
of the crime in HB 238.
REPRESENTATIVE JOSEPHSON indicated that if an indigenous sacred
site is real property or, as referenced on page 2, subparagraph
(C)(ii), tangible personal property, then it might meet the
elements of the crime.
1:43:26 PM
SENATOR TOBIN said that when she thinks of a house of worship,
she tends to picture the Western religious institutions in which
she was raised. However, in her indigenous heritage, places such
as rocks or natural monuments, though not man-made, serve as
religious spaces. These are locations where religious practices
occur and where individuals may knowingly deface or remove
objects. She explained that this is a broader construct than the
traditional four walls and roof associated with the churches she
attended.
REPRESENTATIVE JOSEPHSON responded that he would consider a
carefully crafted amendment of the kind described to be a
friendly amendment.
1:44:29 PM
SENATOR KIEHL referred to the example of a mall containing a
church. He stated that he had diagrammed the sentence in the
bill and noted that the Dimond Center is a single piece of real
property. He questioned how vandalizing a different location on
the same property, such as the Olive Garden, would not meet the
elements of the crime, given the presence of a church in the
tower of the same property.
REPRESENTATIVE JOSEPHSON replied that if the Dimond Center were
known to be owned by a Christian denomination and widely
recognized to meet the knowingly element, then there may be a
case. He explained his interpretation of this piece, stating the
edifice must be a place of religious education or worship and
the property must be owned, leased, or used by a religious
organization. Both criteria must be met. Therefore, vandalism
must target the place of worship, not a separate business on the
same property.
1:46:19 PM
SENATOR KIEHL sought clarification about the scope of tangible
personal property under HB 238, specifically, the outer
boundaries of the language.
1:46:51 PM
REPRESENTATIVE JOSEPHSON explained how the language in HB 238
was derived. He conveyed that the House Rules Committee chair
had some hypothetical ideas related to that question, such as,
how to protect a Jewish exhibit in a museum. He noted the
difficulty in narrowly defining protections for such exhibits.
He stated that AS 11.81.900 includes the use of tangible
personal property under the definition of "property. The aim
was to protect items with religious impact though not limited to
a church, mosque, or synagogue.
1:48:14 PM
ALEXANDER SCHROEDER, Staff, Representative Andy Josephson,
Alaska State Legislature, Juneau, Alaska, responded that one
limit worth noting is the specific inclusion of tangible
personal property. He explained that the bill does not cover
intangible property, such as digital content like Facebook posts
or other digital property. He expressed his belief that this
distinction helps define an outer limit of what HB 238 proposes
to protect.
1:48:53 PM
SENATOR KIEHL said he would like to work with the sponsor to
refine the language. He raised concerns about whether the bill
would criminalize actions such as scuffing a crucifix or
handling the Koran in ways considered desecration by some
groups. He suggested a need for more precise drafting.
1:49:37 PM
REPRESENTATIVE JOSEPHSON replied that he attempted to limit the
bill's scope and gave examples. He acknowledged HB 238 might
require further refinement. He welcomed suggestions from the
committee.
1:50:52 PM
SENATOR TOBIN sought clarification on whether a knowingly
intoxicated person, who sideswipes a church van used for
community event pickups, would be liable under the Class C
felony proposed in HB 238. She stated that, based on her
interpretation, the individual might be held liable, and she
asked whether that outcome reflects the sponsor's intent.
1:51:33 PM
MR. SCHROEDER replied that interpretation is not the sponsor's
intent nor is it to criminalize such conduct under HB 238. He
explained that under the element of "knowing," there must be a
substantial probability that the person is aware they are
committing the offense. In the case of an accident, such as a
collision between two vehicles, the conduct would not meet that
threshold. He stated that an individual would need to know they
are vandalizing property belonging to a religious institution;
otherwise, he does not believe the person would have committed
an offense under this bill.
1:52:17 PM
CHAIR CLAMAN presented a hypothetical scenario involving a
church that owns several properties. He described a parcel of
land containing the church building and a parsonage where the
minister traditionally resides, as well as a house located a
mile away that is owned by the church and occupied by the
director of religious education. He asked whether a person who
knows that the house is owned by the church and knowingly spray
paints something defamatory on it, but causing less than $750 in
damages, would be culpable under the proposed legislation.
MR. SCHROEDER acknowledged that he is not an attorney but said
that, under the "knowingly" provision in HB 238, the offense
would fall under the bill if the individual knew the property
was owned by a religious institution. However, if the individual
did not know the property was affiliated with the religious
institution, the offense would not qualify. He deferred further
clarification to Ms. Meade with the Alaska Court System.
1:54:34 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, Alaska, responded that she was unsure
how much clarity she could provide. She read the bill language
beginning on page 2, line 7, and explained that the real
property must include a religious school or worship building and
be owned by a religious organization.
MS. MEADE said that the question would likely be fact-specific.
She examined the elements in the hypothetical scenario as they
pertained to subparagraph (C)(i). She stated that if the house a
mile away is owned by the religious organization, and the entire
property is considered one parcel that includes a place of
religious education or worship, then it could potentially meet
the criteria in the bill. She said, however, it would likely be
a matter for legal interpretation and debate, and she could not
provide a definitive answer.
1:56:04 PM
SENATOR KAUFMAN drew attention to the language on page 2,
subparagraph (C), and questioned whether it was overly broad. He
raised a hypothetical about praying in a car or at home, which
could be considered religious use, and wondered whether damage
to such personal property might fall under HB 238 if motivated
by hostility or ill will. He expressed concern about potential
mission creep due to the proposed bill's broadness.
MR. SCHROEDER replied that he did not interpret the bill so
broadly as to include cars or private homes used for prayer. He
explained that, for the proposed bill to apply, these elements
must be met: the presence of real property, a place of religious
education or worship located on that property, and use, lease or
ownership by a religious organization or for a religious
purpose. He deferred to Ms. Meade for the court system's
interpretation.
1:58:16 PM
MS. MEADE acknowledged that the wording could be interpreted
broadly. She said there could be a prosecutor that might
consider real property used for prayer as qualifying under the
bill. She said the sponsor might want to refine the language a
little bit, noting that would be up to the sponsor's office.
1:59:20 PM
SENATOR TOBIN asked for more detail about hate crimes. She drew
attention to the word "knowingly" on page 1, line 12, and
requested further explanation about the word in the context of
religious purposes. She asked what the expectation is for
actions committed knowingly, particularly related to this bill
and religion.
MS. MEADE replied that she is not familiar with federal hate
crime law, so she cannot speak to the definition or elements of
it.
MS. MEADE explained that "knowingly" is a complex concept that
she finds fairly complicated. She explained that "intentionally"
means the person wanted the act to happen, planned for it, and
intended the outcome. "Knowingly" is just shy of that, meaning
the person knew they were going to take an action, but may not
have intended all the consequences. It involves some
aforethought and awareness of the act, such as knowing one was
desecrating a religious object or space.
2:00:59 PM
CHAIR CLAMAN shared legal and historical context about the term
"knowingly." He stated that the Alaska Criminal Code is largely
based on the Model Penal Code and the criminal code revision
passed by the legislature in 1980, which established four mental
states: intentionally, knowingly, recklessly, and with criminal
negligence. These align with the mental states outlined in the
Model Penal Code. He noted that federal crimes also use the term
"knowingly," and federal courts tend to interpret it in a manner
similar to Alaska. He clarified, however, that while there is
some overlap, state and federal statutes are not identical and
do not completely align.
2:02:35 PM
SENATOR KIEHL turned his attention to the word "desecrate." He
acknowledged that the term is already used in the context of
graves. He commented that the difference in that context is
clarity, people know what a grave is. He noted that Webster's
Dictionary defines "desecrate" as violating the sanctity of
something or profaning it, removing its sacred nature. He asked
how the Alaska Court System determines what constitutes
something as sacred or no longer sacred, and how judges instruct
juries in making that determination when the courts rely on a
dictionary definition of a word like "desecrate."
2:03:39 PM
MS. MEADE stated that she did not know the exact jury
instruction or whether Alaska has one for the definition of
"desecration" under AS 11.46.482(a). She expressed her belief
that the approach would likely not differ significantly from how
the court addresses other statutory terms. She explained that
the court might consult case law from Alaska or other
jurisdictions to determine how much damage must occur for
something to be considered desecrated. She acknowledged
uncertainty regarding the distinctions among the terms
"defaces," "damages," and "desecrates" in the statute, and
questioned whether "desecrate" is an umbrella term or an
intensifier. She stated that judges could determine the
interpretation through legal briefing and input from the parties
involved and the district attorney.
2:05:04 PM
SENATOR KIEHL discussed the term "desecrate," remarking that
every religion he is familiar with contains internal schisms.
People's beliefs within a given religion often range from strong
to deeply passionate and history shows that internal disputes
can lead to intense conflict. He recommended the legislature
craft the term carefully and precisely to avoid involving law
enforcement or prosecutors in doctrinal disagreements. He
stated, by way of example, that most adherents of Islam do not
object to a menstruating woman entering a mosque, but some
schools of thought consider that act to desecrate the space. He
emphasized that troopers should never be placed in a position of
interpreting which imam's reading or doctrine is correct. He
suggested that the legislature use caution and consider going
beyond the Webster's dictionary definition.
2:06:52 PM
CHAIR CLAMAN said that may be more of a comment for the bill
sponsor than for the court system.
2:06:55 PM
CHAIR CLAMAN announced invited testimony on HB 238.
2:07:26 PM
HEATHER BARBOUR, Member and Representative, Islamic Community of
Alaska, Anchorage, Alaska, testified by invitation in support of
HB 238. She said that she is an attorney in Anchorage and was
formerly an assistant district attorney in the Anchorage office.
MS. BARBOUR said it is vital for the committee to recognize that
vandalism of a house of worship is not the same as general
property damage or criminal mischief and should not be treated
the same in the courts. The motive and message behind the act
are different and carry a deeper emotional impact. She said the
actual extent of the damage is not the issue; it is the message
that causes harm. Vandalism to a house of worship can be just as
damaging whether the property loss is under or over $750.
Monetary damage is not always the best standard by which to
judge the effect of a property crime on its victims. She pointed
out that the legislature acknowledged this distinction in
AS 11.46.482, subsections (a)(3)(A) and (B).
MS. BARBOUR shared a personal experience. She said that her
community began construction of its mosque in 2010. She said it
was the first and only mosque in the state of Alaska. The
community suffered vandalism at the site during its
construction. There were offensive anti-Islamic messages that
were spray painted on the building. Some of the equipment was
stolen, and someone actually shot arrows into the building and
the remaining construction equipment. Although the acts were
captured on video and reported to police, the perpetrator was
never caught. She said if the individual had been caught, he
would have only faced a class B misdemeanor under current law.
She said community members cleaned up the site themselves, so
did not really incur the $750 minimum that would have been
needed to charge a felony. She emphasized the emotional damage
and fear that the individual caused and instilled in the
community never would have been acknowledged.
2:09:46 PM
MS. BARBOUR contrasted the emotional impact of the vandalism to
the physical damage caused by a recent earthquake. While the
earthquake caused more material loss, it did not make the
community feel targeted or unsafe. She emphasized that the sense
of victimization from vandalism is different. In surveillance
footage of religious property vandalism, victims often react
with fear, scanning the surroundings, rather than checking the
damage. She said the message received is clear, "you are not
wanted, you are not safe." Victims often fear the perpetrator
may still be nearby.
MS. BARBOUR asserted that such acts constitute a form of
terrorism, intended to inflict emotional trauma. The degree of
physical damage is secondary to the hate and threat behind the
act. She urged the committee to vote in favor of HB 238, which
recognizes the unique and severe nature of vandalizing religious
property. She concluded by stating that if the law protects the
dead under AS 11.46.482, then the living deserve the same
protection. She thanked the chair for the opportunity to
testify.
2:12:23 PM
LESLIE FRIED, Curator, Alaska Jewish Museum, Anchorage, Alaska,
testified by invitation in support of HB 238. She said the
museum is part of the Alaska Jewish campus and she works for
Rabbi Greenberg, Rabbi of the Orthodox Jewish organization
associated with it. She recollected an incident in 2021, shortly
before the Jewish holiday Shavuot, during which the museum was
vandalized with stickers bearing Nazi swastikas. One of the
stickers was carved through the back door. The same act was
repeated three months later. She said it was the first time she
felt terror while performing her job, and the experience
triggered panic attacks that affected her ability to work.
MS. FRIED stated that she did not know the perpetrators
motivation but suspected the individual had been influenced by
hate propaganda and conspiracy theories, which are common today.
She said antisemitism is rising globally at an alarming rate. In
the aftermath of the vandalism, the community was shocked and
fearful, resulting in a need for armed security at the campus.
2:15:21 PM
MS. FRIED expressed support for HB 238, emphasizing that it
raises awareness about the importance of recognizing intent when
determining appropriate punishment. She stated that this type of
vandalism is distinct from a case in which someone
indiscriminately spray paints several homes and one happens to
be a sacred building. She reiterated that intent is critical,
especially in the context of ideologies such as neo-Nazism. She
noted that the museum has previously been targeted with stickers
and naming attacks.
MS. FRIED pointed out that many do not realize the museum
contains sacred religious artifacts and is more than a history
museum. It is directly connected to the Alaska Jewish Campus,
where synagogue members visit, participate in discussions, and
take part in tours. She stated the museum is deeply integrated
into the religious and cultural life of the community.
2:17:37 PM
CHAIR CLAMAN opened public testimony on HB 238; finding none, he
closed public testimony.
CHAIR CLAMAN held HB 238 in committee.