Legislature(1997 - 1998)
02/02/1998 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 267 - DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE Number 0876 CHAIRMAN GREEN announced the next item of business would be HB 267, "An Act relating to domestic violence and sexual assault; and providing for an effective date." Number 0876 REPRESENTATIVE PETE KELLY, sponsor of HB 267, told of incidents where the reluctance of workers at women's shelters to communicate with police departments has led to problems, including questions of whether the woman is missing or is in physical danger. He cited an example where a woman in a hospital for depression had apparently stopped taking her medication and wandered away from the hospital; police inquiring at the women's shelter received no information and did not know whether the woman was in serious physical danger. REPRESENTATIVE KELLY advised members that state statutes are somewhat vague on this topic and could easily be clarified without any compromise to the security and safety of the residents of women's shelters. He stated, "And I think, in fact, it may be to the benefit of people; when missing persons searches are instigated, there is a certain level of danger that accompanies those. I mean, anything that a police officer does or a search and rescue person does has some element of danger to it, and there's certainly a lot of cost established with that, as well." REPRESENTATIVE KELLY characterized the bill as fairly simple, saying it gives the council the ability to promulgate regulations to further cooperation between the counselors at a domestic violence shelter and the police department. It also stipulates that - in fact, in statute - it is an appropriate course of action for the shelters to communicate with those police officers. Number 0944 REPRESENTATIVE KELLY referred to a recent (unrelated) death of a police officer in Fairbanks and concluded, "If we can trust these guys and these women to take a bullet for us, certainly we can trust them with a little bit of information about the very people they're sworn to protect." Number 0970 REPRESENTATIVE ROKEBERG commented on the recent death of a police officer in Anchorage, acknowledging that the fact pattern was different. He noted that the last two police officers killed in Alaska may have died under domestic violence situations, and he suggested this type of legislation may help. Number 0986 REPRESENTATIVE PORTER brought up two questions he had mentioned to the sponsor, which he also intended to ask folks from the domestic violence community: Does federal or Alaska law preclude this? And why would we want to limit the information flowing to law enforcement to just missing person cases? He asked whether that information shouldn't also be available in a criminal investigation, for example. REPRESENTATIVE PORTER proposed a scenario where the offending spouse dreamed up a story and "laid it on law enforcement that the other spouse was a material witness - or any other kind of contrived thing - and could really take law enforcement around by the nose and ... make them run around and inadvertently get information for the spouse, when, really, they could check that out real quickly with a shelter and say, 'What's going on?'" Noting that he'd been out of the business ten years, Representative Porter said, "But when I was there, most of the residents in these shelters were brought there by police. Why there would be a problem letting them know about any of them that are in there is beyond me. ... By saying they can only tell them of missing persons, I guess we're almost saying, 'And you can't if they make an inquiry for another reason.' And I don't know if that's appropriate or not." Number 1090 CHAIRMAN GREEN asked about the possibility of a police officer who is a sporting buddy with a domestic violence perpetrator informing his buddy that his buddy's wife is at a shelter, for example. He asked whether officers are sworn to secrecy. Number 1131 REPRESENTATIVE KELLY responded, "The only thing I could think of is that ... we ask of professionals throughout our whole nation to have certain levels of confidentiality. Attorneys can't violate that, whether they're sporting buddies or not. Doctors have a code of ethics that requires that as well. Ministers do. The list, I'm sure, is fairly long. Police officers are sworn to protect, ... and I think, though, that that is a very broad oath. I think we have to trust them, to a certain level. Anyone could divulge that information, including the person who runs the shelter." Number 1167 REPRESENTATIVE BERKOWITZ commented that confidence in that confidentiality is also crucial. He suggested the need for sensitivity to those whose confidences are in jeopardy. He had spoken with the sponsor, troopers in Fairbanks, and representatives from the domestic violence community. He stated his understanding that the instances where there is a real problem, where the troopers or law enforcement are going into a domestic violence shelter, asking for somebody, and being given the runaround, are extremely few and far between. REPRESENTATIVE BERKOWITZ said he understands, probably as much as anyone, the need for officer safety and the need to make the best and highest use of law enforcement resources. But he is also very concerned about the confidentiality requirements. He said it seems that this problem is not well-suited to legislation, and it would be better-suited to some sort of reconciliation, on the ground, by the people who have to make these decisions. REPRESENTATIVE BERKOWITZ said he would encourage the people in the shelters and law enforcement to make that kind of rapprochement, so the legislature doesn't have to intervene. He stated his belief that it isn't appropriate for the legislature to micromanage how either law enforcement officials or domestic violence shelters do their jobs. Number 1261 REPRESENTATIVE KELLY replied that he couldn't agree more. He stated, "The genesis of this bill came from the law enforcement community. And though the incidences are small, they may even be regionalized." He said it had been enough of a problem that they had come to him and asked him to do something about this legislatively. Representative Kelly said his first response was to ask whether they could work it out without the legislature, because it seems to him they are overreading the statute a little bit. He stated, "And that's appropriate for us to clarify a statute, if it's been overread. But we did have a meeting with the Department of Public Safety and the domestic violence shelter community, and I said, 'Please communicate; find a way to communicate on this.' And we waited over an interim and nothing happened. As a matter of fact, what we got back is that ... we were in exactly the same position; there had been no give or take on the side, particularly, of the domestic violence shelter people." REPRESENTATIVE KELLY said he believed there had been a second meeting involving the Department of Public Safety; they had come back to him, and he had written again requesting that it be worked out without getting into the statutes, if possible. Still nothing had happened. Representative Kelly had then written a letter to the council, petitioning them under AS 44.62.220 to adopt regulations and requesting a response within 30 days, as required under the statute. However, he never received a response, he said. REPRESENTATIVE KELLY stated, "So, I guess I find myself in the position whereas I agree very much with Representative Berkowitz, that it doesn't appear to be happening, and I think maybe we do need to clarify the statutes, unless we can see some real movement in that direction ...." He said there are incidents that one can never forget, such as a frozen woman under a rail car in Fairbanks in 50-below weather. While domestic violence is incredibly threatening to women, and he doesn't downplay that, he suggested that in places like Fairbanks and Fort Yukon, a 50-below winter is more threatening than anything they could face at home, if somebody isn't out looking for them, or doesn't have the drive to go look for them because they don't know whether the woman is missing or at the shelter or at a girlfriend's house or elsewhere. Number 1408 REPRESENTATIVE PORTER said law enforcement officers have to be sworn to a code of ethics, which requires that they not divulge confidential information. He stated that he would have no qualms that, having made that affirmation, law enforcement officers would not divulge this information. CHAIRMAN GREEN acknowledged that confidentiality issues transcend other professions, saying there can be "rogues" who violate their oaths. He said his own question had been more of a general nature. "And I think you both have put that to rest," he added. Number 1494 REPRESENTATIVE CROFT asked Representative Kelly whether anything in law prohibits a divulgence when confidentiality has been waived; he then asked whether a divulgence could be made if a woman had waived confidentiality. REPRESENTATIVE KELLY said yes. REPRESENTATIVE CROFT suggested this really comes down to those rare instances when the woman insists for some reason, whether others believe it justified or not. Those reasons could include fear of a buddy relationship or fear that in a small community, saying that she isn't missing would be equivalent to saying she is at the shelter. Number 1538 REPRESENTATIVE KELLY said he thinks that is the case. He said he doesn't know the costs or dangers involved in a full-scale missing persons search; he mentioned possible factors such as weather in coastal communities or the need for a helicopter. He stated, "I don't think that when we have the protections of the oath of office that the policemen have taken, the protections that we've built into the laws themselves, that a woman simply making a choice that, 'I don't want to do that, and the other expenses and possible danger associated with that are not as important,' I think we have to make a policy call here that, in fact, ... we do have the right to require someone to lose that confidentiality, just not because they don't choose to." Number 1603 REPRESENTATIVE BERKOWITZ said it is a difficult policy call. They are balancing the need for law and order against a respect for personal freedom, autonomy and privacy. He said personally, he is hesitant to wade in to anyone's individual autonomy without some extremely good showing. He stated, "And with just a few instances, and with what I have recognized as the ability of people who are working in the field on the front lines to improvise, to be pragmatic, if there's a way short of providing legislation, I would encourage both the domestic violence community and the law enforcement community to figure it out before this bill becomes a steamroller." Number 1659 REPRESENTATIVE PORTER said if he understood the problem that generated the bill, it was not necessarily a victim who didn't want it released but a shelter employee who felt the law wouldn't allow it. He suggested that is what this legislation is meant to straighten out. Number 1711 CANDICE LIMMER, Victims' Advocate, Valley Women's Resource Center (Palmer), testified via teleconference from the Mat-Su Legislative Information Office (LIO). She said she feels strongly that this legislation is totally unnecessary. This can be, and has been, worked out at a local level, and she believes it should continue to stay on a local level and be worked out between the shelters and law enforcement. MS. LIMMER said there have been hundreds of calls to the Alaska State Troopers regarding missing persons. At their shelter, however, they've had one call in five years regarding this kind of situation. She restated that this can be worked out by the shelters working with law enforcement, and they have worked it out in Palmer. More legislation is not necessary. She feels that it compromises the rights of the victims, and it puts the victims in danger. Ms. Limmer concluded, "And I would agree with Representative Berkowitz on his stand and some of the comments he's made." Number 1791 CHAIRMAN GREEN asked, "In your association, if an officer came saying that ... a certain lady was reported missing and they were mounting an all-out search party, would it be your practice to inform the officer or to ignore that?" MS. LIMMER answered, "If the officer asked if we knew if she was safe or if we had any information as to her safety, we could say either -- if we knew that she was safe, we wouldn't necessarily know where she was. That wouldn't mean that she was in the shelter; we might just know that she was safe somewhere else. Or we would say, 'We don't know if she is safe.' And that would mean either that we didn't know where she was, we didn't have contact with her, and so, we really have no knowledge. And that would satisfy it." REPRESENTATIVE PORTER confirmed that Ms. Limmer had a copy of the bill, then said basically all the bill requires is that they communicate whether the person is or is not missing. He suggested this would be consistent with the policy of Ms. Limmer's shelter. Number 1889 MS. LIMMER responded, "Well, missing to whom?" She restated that she doesn't believe they need any more laws regarding this. She indicated they have worked it out with the troopers and just acknowledge whether they know the woman is safe or not, which is all the information the troopers need to decide whether to launch a search party. Ms. Limmer said it could be the perpetrator who is reporting the woman missing, and he could use this to gain all sorts of information. "It puts the woman at risk, absolutely," Ms. Limmer concluded. Number 1999 REPRESENTATIVE BERKOWITZ asked Ms. Limmer whether she could think of any instances in which she might not want to inform law enforcement. MS. LIMMER replied yes, if a law enforcement officer's spouse was in the shelter, they wouldn't want to share that with the officer. She added that it would not be an unusual situation. CHAIRMAN GREEN asked whether that has happened. MS. LIMMER responded, "Oh, yes." Number 2054 BRENDA WIEFFERING, Executive Director, Kenai-Soldotna Women's Resource and Crisis Center, testified via teleconference from Kenai, noting that she had faxed two letters, dated January 30, 1998, and January 31, 1998, which she would like to have stand as her formal testimony. However, she would also comment on what she had heard in the past few minutes. MS. WIEFFERING stated, "I have concerns that when Representative Kelly states that law enforcement officers have a duty to protect, that that's being interpreted as abiding by a confidentiality statute, because I would not interpret that that they are the same. I also wonder if, by changing Alaska's statute on confidentiality, that it may be in violation of the federal statute, and then agencies such as the Women's Resource and Crisis Center in Kenai, which I represent, may not be eligible for federal funding for providing services to victims of domestic violence and sexual assault." Number 2177 MS. WIEFFERING continued, "I'm concerned with what's driving the proposed change to the law is based on one instance and isn't a universal problem. The danger to women is real, as my letters state. Very infrequently are we contacted regarding missing persons reports: three times in the last two years locally. We have satisfied three law enforcement agencies we deal with in our response to that. We do encourage women who come to us to find a way to let law enforcement know that they're safe, if a missing persons report is filed. The only reason that that would not happen would be, again, if the woman insisted it were not safe for her to do so, and I could think of different circumstances under which that would apply. First would be if the perpetrator were a law enforcement officer. And I could think off the top of my head of at least four local officers in three departments [whom] I've had reports on in the three-plus years that I've been in this community, that are perpetrating domestic violence. Those reports may come from victims. They may ... come from friends and family members who are observing it and reporting to us." MS. WIEFFERING advised members that perpetrators often use law enforcement for tracking victims. She recalled, clearly, she said, one case where a local law enforcement agency had called, saying there was a missing persons report and asking whether that woman was safe or was at their shelter. Ms. Wieffering explained, "She indeed was at the shelter and instructed me to let law enforcement know that she was there, she was safe, and do not tell her family or anyone else that she was there. Within minutes of communicating this to law enforcement, we had a call from that woman's family, saying that law enforcement told them she was there. Now, these people were calling from out of state; it's not like they picked up the local phone book and said, 'Oh, let's try this local service agency.' The coincidence was just too astounding." Number 2379 MS. WIEFFERING said they had a highly publicized case of alleged sexual assault by a local police officer last year. She stated, "So, under any of these circumstances, you can understand why a woman would not want for us to communicate with law enforcement where she was, whether that is in our shelter or at another place. We do absolutely understand the seriousness and the high cost of implementing an official search for a missing person. We work very, very hard to maintain an excellent working relationship with our local law enforcement agencies. We believe ... we're pretty well-covered in that area here and think that this is dangerous legislation." MS. WIEFFERING referred to the end of her letter of January 30, 1998; she asked members to consider a situation where the perpetrator is a police officer or someone close to that officer, and the victim is the member's daughter. TAPE 98-8, SIDE A Number 0006 MS. WIEFFERING informed members that as soon as they are contacted that there is a missing persons report, if they know the person and know how to communicate with her, they will let her know that the report has been made and talk to her about the importance of communicating that to law enforcement because of the costs involved, if it is safe to do so. Ms. Wieffering added, "It's her decision, and she is the best judge of her own safety." Number 0063 CHAIRMAN GREEN referred to an earlier question asked of Ms. Limmer about a hypothetical situation. He asked, "In your jurisdiction now, if a person comes and asks you the whereabouts of someone that you have in there - who has asked you not to divulge that information - do you feel that you have the authority to withhold that?" MS. WIEFFERING replied, "Yes, I do, and that's dictated by the confidentiality statute of the state of Alaska." Number 0113 REPRESENTATIVE BERKOWITZ asked, "Would you be comforted if there were some accompanying legislation requiring confidentiality on the part of law enforcement officers?" MS. WIEFFERING replied, "I would feel better about that. I don't think that's the answer. I just think that ... this legislation isn't necessary. But I would feel better if, indeed, you felt that it must happen, that people within the system besides us were mandated by law to maintain confidentiality, and that would include all employees of law enforcement departments, not just the officers but the dispatchers and other administrative staff as well." Number 0178 REPRESENTATIVE BERKOWITZ said, "You don't have to answer this next question if you don't want; I'm just curious. If this law were to pass, do you feel strongly enough as a victim advocate that you'd be willing to commit an act of civil disobedience and withhold information from law enforcement if you felt it would jeopardize your client?" MS. WIEFFERING replied, "Our agency policy is that we do not violate the law. But I would feel compelled to make it very public knowledge, to anyone who would seek services in a domestic violence shelter, the danger and risk of doing so based on that legislation. I don't think women would come to us if this passed." Number 0284 ROBIN F. LOWN, Vice President, Alaska Peace Officers Association, came forward to testify, advising members he is a retired Alaska State Trooper who retired as commander of Southeast Alaska "A" Detachment after 23-1/2 years of service. He discussed circumstances of a case about which he had some personal knowledge. It involved nondisclosure by a women's shelter and a woman reported as missing. A search was launched; considerable time and money - approximately $14,000 - were spent looking for the individual. Mr. Lown stated, "Because of the circumstances, we had reason to believe that she may have gone to the shelter. We asked the shelter. The shelter's response was, 'We won't tell you yea or nay, either/or,' which caused us to look further and continue our search. Eventually, we did determine that she had been at the shelter. At that point, we did call off the search. That search involved helicopters, lots of people out in the bushes looking around, it endangered people's lives. And it was just a matter of the local shelter telling us that they knew where she was and that she was safe. And they would not do that." Number 0425 MR. LOWN stated, "So, law enforcement supports this bill. It asks a pretty simple question: Do you know where this person is, and is this person safe?" He said the only answer has to be, "We know the person is not missing." The shelter doesn't have to say where the person is or anything else, which in the case Mr. Lown had described would have stopped that big search. MR. LOWN said he had heard from several people in law enforcement, around the state, that communication doesn't always exist, for one reason or another, between shelters and law enforcement people. For example, personnel at a shelter and in law enforcement may not see eye-to-eye and communicate well, and they may not communicate when it would be appropriate to do so. Mr. Lown concluded by restating the belief that all this bill requires is a simple question from law enforcement and a simple answer from the shelter. Number 0520 REPRESENTATIVE BERKOWITZ said, "And I appreciate what law enforcement does, and don't get me wrong with where I'm going on this. But you mentioned one instance. Were there other instances where the shelters were cooperative and were able to communicate to you that the missing person was safe or otherwise accounted for?" MR. LOWN replied, "That is the only missing person case where it involved a search and rescue, that I know of. There's all kinds of other things that aren't addressed in this particular bill, as far as trying to find victims in domestic violence shelters for other legitimate law enforcement reasons, and shelters often will not communicate." Number 0585 REPRESENTATIVE BERKOWITZ asked, "Some of the previous witnesses have mentioned instances where law enforcement officers have perpetrated domestic violence; how would you respond to their concerns?" MR. LOWN replied that a law enforcement officer would have to have a legitimate reason to ask these questions. He said, "As was stated, sworn officers have to abide by a code of ethics. They would be responsible for their actions. If I, as a commander or as a chief of police, found out that one of my officers was misusing this, there would be an investigation; and if it was substantiated, action would be taken - disciplinary action - and, depending on the circumstances, could result in the termination of that person." Number 0661 REPRESENTATIVE BERKOWITZ noted that the bill addresses some very rare instances. He asked, "In those instances where law enforcement is the perpetrator, there would be nothing to prevent the perpetrator from going to a domestic violence (DV) shelter and inquiring about the whereabouts of the victim, is there?" MR. LOWN said there would be nothing to prevent that. However, the question under this statute would be, "Do you know where this person is? We have a missing persons report." And the shelter would only state knowledge - or lack of knowledge - of that person's safety. Number 0736 REPRESENTATIVE KELLY pointed out that on page 3, line 27, it says "may." He said this gives permission to the shelters for those shelters that thought they could not do this. It would leave some discretion to a counselor in a case like that presented. REPRESENTATIVE ROKEBERG asked Representative Kelly whether that was intentional, for that reason. Number 0790 REPRESENTATIVE KELLY replied, "Yes, there's some thoughts about going to a 'shall' on that, and that is not before us at this point. But the more I look at this, the more it probably is appropriate to have a 'may' in there, because, to answer the counselor from Palmer, ... [Ms. Limmer], what she is doing is exactly what we would hope all the shelters would do. This bill simply gives the council the ability to promulgate regulations so that they're all playing from the same sheet of music." REPRESENTATIVE KELLY said this "may" gives the shelter the discretion to address a concern, for example, about a personal relationship involving the officer who is there. All it does is allow everybody to do what the counselors are doing who are doing it right. But the council has not promulgated regulations in such a manner that everyone knows what the rules are, he concluded. Number 0861 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault, came forward to testify. She read the following into the record: "Long before states enacted confidentiality statutes, and before the federal government required confidentiality of its grantees, women providing safety for other women knew of the importance of confidentiality. Providing safehouses - sanctuary - for battered women is at the heart of the shelter movement, and a fundamental element of providing that sanctuary is practicing confidentiality. "Often just to stay alive, a woman must give up her home, her possessions, her job, her friends, even her identity, and go into hiding. All ties to her past life have to be severed or she risks being found by the person who is battering her and threatening to kill her. Safehouses for battered women are analogous to the Underground Railroad used to assist slaves in gaining their freedom. "The period of time immediately following escape is the most dangerous. According to recent FBI [Federal Bureau of Investigation] statistics, three-fourths of domestic violence homicides occur during this time. Batterers use any and all means at their disposal to track down their victims. They search relatives' homes; they call friends; they stalk co-workers; they call hospitals; they call transportation centers such as airports, buses, taxes; they call the shelters. They have their female friends call these places. And, yes, they also contact law enforcement and file missing persons reports. "Fortunately, this last tactic doesn't seem yet to be a tactic of choice in Alaska. Of all the missing persons reports filed during the last year, only twelve involved contact from law enforcement to advocacy programs. Of those twelve, ten were handled to the satisfaction of both of the local agencies. Unfortunately, we're here today because of the two that were problematic to law enforcement, and an incident that Mr. Lown spoke about briefly that happened in Juneau some 11 years ago, in 1986. These three incidents should not dictate a change in public policy that will, we believe, have as its effect an increase in missing persons reports filed by batterers as they learn of this new tool at their disposal." Number 1001 MS. HUGONIN continued: "Approximately ten states have an absolute privilege [that] victims of domestic violence or sexual assault can assert. In 1992, when Alaska enacted confidentiality provisions, the legislature at that time decided against an absolute privilege. The discussion focused on the balance necessary between protecting a victim's confidentiality and the state's interest in responding to criminal acts of child abuse, criminal acts committed by victims, and a program's ability to defend itself from a civil suit brought by a victim. After much thoughtful debate and compromise, eight exceptions were added to the statute to cover these situations. We don't believe it's in the best interest of victims to add further exceptions to the statute. "As Alaskans, shelter workers understand the serious nature of searching for overdue or missing persons. Some of us have engaged in searches ourselves. It is not the intent of anyone to cause a needless search, and steps are taken to try and prevent such a situation. Victims are informed of the possibility of having a missing persons report filed by their perpetrators and are given information about ways to address the report if the shelter were to be contacted by law enforcement. In the few instances when shelters have been contacted about a missing persons report, either the victim has called law enforcement herself or she has signed a waiver giving permission to the shelter to inform law enforcement that she's not missing. ... In circumstances where confirmation is not forthcoming, it's because victims believe their lives would be forfeit if anyone knew they were not missing. "Most areas of the state have been able to deal with these infrequent situations locally, as they arise. We believe local control of interactions between law enforcement and victim service programs should be encouraged and maintained. It's the first responders and direct service providers that must find ways to work together with each other, so that victims can get the protection that they need. "Victims of domestic violence seem to be a minority of those people who are reported missing in Alaska. They are the best judges of the danger to which they would expose themselves if they were found 'not missing,' and that judgment should be respected. In the few instances where a missing persons report is filed concerning a victim of domestic violence, most local law enforcement and victim service programs have been able to successfully resolve the situation. "We believe that more will be lost than gained by adding a further exemption to the victim-victim counselor privilege, and would ask that House Bill 267 not be advanced from the committee." Number 1148 MS. HUGONIN referred to an earlier question from Representative Porter about applicable federal laws; she said there are two that go through regulation. The Victims of Crime Act (VOCA) provides funding directly to services that provide shelter to crime victims; in the state of Alaska, currently a little over $700,000 goes to programs to provide those services, and they have requirements that require programs to keep confidential information about people that they would serve. There is also the federal Family Violence Prevention and Service Act, which has the same sort of confidentiality requirements. Ms. Hugonin offered to forward a copy of the statutes to the committee. Number 1208 MS. HUGONIN next addressed an earlier question from Chairman Green about officer confidentiality. Asking to be corrected if she was wrong, she stated her understanding that during an active investigation, there is no confidentiality provision in place; if there is an active missing persons investigation ongoing, and if there is information received that this person is not missing, it wouldn't fall under a particular confidentiality of law enforcement. Number 1236 MS. HUGONIN then addressed an earlier question from Representative Berkowitz involving cases where domestic violence workers would not want information divulged. Noting that several examples had been brought forward, she said another example is that sometimes a woman says she is going to a shelter and in fact goes elsewhere, to a family member's house or friend's house or out of state, knowing that will buy some time to get to this place of safety. As long as the perpetrator believes the person is in shelter, she has the freedom to make those other arrangement. Ms. Hugonin suggested that if a shelter cannot confirm that a woman isn't missing, a perpetrator may be able to guess where else the woman has gone. Number 1292 REPRESENTATIVE PORTER responded that as he reads it, the bill doesn't ask that information be given about whether the victim is or isn't in the shelter, or about her whereabouts. The only thing being asked for is whether that person is missing or not. He suggested if the desire of the victim is to pretend to be in the shelter, that ruse would not be violated by this if the shelter only confirmed that the person isn't missing. REPRESENTATIVE PORTER commented that he knows what he would do with an officer who violated his oath of office and divulged information that he gained through his employment. He then stated the belief that it wouldn't be inappropriate to put in here that when they receive this information, law enforcement is prohibited from releasing that outside of the agency, period. MS. HUGONIN said that would add a degree of comfort. REPRESENTATIVE PORTER asked whether Ms. Hugonin was saying that federal law would now disallow this bill from becoming state law. Number 1387 MS. HUGONIN replied, "I don't think I can answer that. But what I was saying is that there are federal regulations placed on programs who receive federal funding, both through VOCA and through the Family Violence Prevention and Service Act." REPRESENTATIVE PORTER asked whether it is Ms. Hugonin's interpretation of all of those that this would be disallowed by federal law. MS. HUGONIN replied, "I think that if people were to follow that, they wouldn't be able to get the federal funding. Is that what you mean by disallow?" REPRESENTATIVE PORTER said yes. Number 1413 REPRESENTATIVE CROFT asked for confirmation that it isn't a "federal blanket requirement superseding our statutes"; rather, it is, "If you want our money, you have to agree to keep it confidential." MS. HUGONIN said that is her understanding, yes. Number 1425 REPRESENTATIVE BERKOWITZ expressed appreciation for Representative Porter's comments about extending the zone of confidentiality to law enforcement. He said that was one of the things he himself was concerned about. He asked Ms. Hugonin, "Would your complaints about the bill be alleviated somewhat if there was no requirement of communications if there was some suspicion that law enforcement was somehow perpetrating the domestic violence?" MS. HUGONIN replied, "Probably yes, although our concerns are not limited to law enforcement officers being perpetrators." REPRESENTATIVE BERKOWITZ explained he was trying to narrow the zone of concern. He then said as he recalls it, there are four areas of confidentiality under the law: doctor-patient, spousal, attorney-client, and p that is correct; Representative Croft nodded his assent. Representative Berkowitz then posed a scenario where a victim of domestic violence had gone to her priest and asked for sanctuary in the church. MS. HUGONIN responded, "They would not be required to report to law enforcement whether or not someone was missing." REPRESENTATIVE BERKOWITZ suggested that law enforcement would still have to go through a search. MS. HUGONIN responded, "Exactly. The same with lawyers, same with physicians, same with psychotherapists, who are the other category that have a privilege, who probably get more individuals coming to them, not just victims of domestic violence but anyone who would then go missing. So, they probably have more access to that information." Number 1520 REPRESENTATIVE BERKOWITZ asked, "And in those instances of confidentiality, it can involve more than missing, it can involve actual crime?" MS. HUGONIN said yes. REPRESENTATIVE BERKOWITZ asked, "Which is posing an ongoing danger?" MS. HUGONIN replied, "Yes. The victim-victim counselor privilege is less restrictive or stringent than the privileges you just mentioned. They have far fewer exceptions than this one does." Number 1536 REPRESENTATIVE ROKEBERG stated his belief that Ms. Hugonin's testimony conflicted regarding whether this bill would put in jeopardy the federal funds. As he first heard her testimony, if there was an ongoing investigation, their cooperation with the police would not jeopardize those funds. Then, when Representative Porter had asked about the potential of the funds being jeopardized, there was a different response. Representative Rokeberg requested clarification. Number 1570 MS. HUGONIN explained, "If I did not separate it out into two concepts, I apologize; the funding matter was a separate matter from the officer confidentiality. The funding matter has to do with two federal sources of funding: VOCA and the Family Violence Prevention and Service Act. And it's my understanding that you cannot receive funds from those two sources if you are going to release confidential information. They have requirements that you keep confidential information about victims." MS. HUGONIN continued, "What I was trying to say about the confidentiality with respect to an ongoing investigation had to do with police officers and whether or not they were bound to keep confidential information that they had received from other sources during an active investigation. And it's my understanding that during active investigations, they are not." Number 1633 REPRESENTATIVE KELLY said if this will cause the federal funds to be in jeopardy, then they are already in jeopardy now from the other domestic violence shelters that they'd heard from, because the bill only asks them to do what they are already doing. REPRESENTATIVE KELLY advised members that he had provided the federal law in the memorandum dated January 30, 1998, included in bill packets. REPRESENTATIVE ROKEBERG excused himself to chair another meeting. REPRESENTATIVE KELLY said he thinks the law refers to making these public, and he doesn't think telling a police officer is making something public. He stated, "And later on, it talks about release of statistical information, and I don't think this is necessarily in the same boat." Number 1699 REPRESENTATIVE CROFT suggested there may be a distinction if federal law requires confidentiality and what the shelters are doing now is asking the owner of the privilege whether she wants them to reveal information. He explained, "You're not violating a federal requirement of confidentiality if you get the permission of the person. It's still confidential. They still have those confidential rights. If they decide to waive them, that's up to them. This would, I think, put a new twist on it by saying, 'Even if you don't have the permission of the person, you can go ahead and do it.' So, I guess I'm trying to get to that aspect of the federal law." He said "made public" may have a different meaning than divulging to police officers, but "we could very well be under ... the [confidentiality] practice under federal law and not under this statute." Number 1753 REPRESENTATIVE PORTER said he thinks under state law, that is absolutely correct, "that that 'without appropriate consent' is in the state law, as is listed here on this memorandum." He said his understanding of the federal law, though, varies. He said he knows that there are at least some confidentiality requirements in federal law that are absolute, regardless of consent; without a lot of research, he wouldn't know whether this is one of those or not. However, he would be very surprised if the federal law is inconsistent with this proposed statute; it is not asking for information such as a name, date of birth, where the person is, when she checked in, or any of those other kinds of things that could put that person in jeopardy. He stated, "It's just saying, 'Do we need to cause potential harm to other people - and a lot of resources that could well be spent protecting other folks - or not?' And that's the only thing it's asking for." Number 1813 MS. HUGONIN responded, "And we appreciate Representative Kelly's efforts and attempts to try to resolve it without legislation. And I guess what the network is interested in is seeing that happen, is that there be more work, so that people are comfortable that local law enforcement and local victims programs have worked out protocols to be able to handle these rare situations when they come forward, without legislation." MS. HUGONIN said that certainly before there were statutes in Alaska and other states, shelter workers unfortunately did have occasion to be civilly disobedient because there was no protection of confidentiality. Ms. Hugonin stated, "And although Ms. Wieffering indicated that she would not, I don't know that that would be a constant across the state. I think we would be asking people, then, to make a determination about exactly that, which was the more critical factor. And so, that would be a problem that we would hope to avoid, and that I think in good faith we do try to avoid." Number 1873 REPRESENTATIVE KELLY said back to the original point, there are some shelters that will not establish protocols. This bill encourages the council to promulgate regulations so that all the shelters will establish protocols. He commented, "And if you are against this bill, then you'd better shut down Palmer and Anchorage and a few other places that are doing exactly what this bill is asking them all to do." Number 1892 REPRESENTATIVE BERKOWITZ disagreed, saying it seems that what Anchorage and Palmer do, they do voluntarily. "And what we've trusted them to do so far is to act with discretion," he stated, suggesting that in a way, this bill is a question about how much discretion they will endow front-line players to have. He said it is a question of providing institutional parameters through legislation, as opposed to endowing people who, he believes, are genuinely of good faith to use their discretion. Representative Berkowitz said he tends to come down on the side of letting those who have good faith exercise their discretion. REPRESENTATIVE BERKOWITZ emphasized that no one is saying here that the troopers, law enforcement, or domestic violence workers are somehow acting in bad faith. He said, "What we have here is a collision of interests, in very few instances. And I think what we ought to do here is let those people who have to do the job figure out the best way of handling it, rather than institutionalizing a response to it." Number 1960 CHAIRMAN GREEN recalled during the Nineteenth Legislature there were similar problems with the Division of Family and Youth Services (DFYS) and other agencies disclosing information about minors. While it appeared they we were up against an insurmountable problem for a while, it then seemed to be reconciled. He said he was wondering whether that couldn't also be accomplished here; everybody, it seems, is looking toward the same ultimate objective, to try to protect everyone as inexpensively as possible, not to frivolously use resources when a simple statement could be made that the victim is safe. He asked whether Ms. Hugonin's understanding is similar, that maybe if they can work through the dilemma, the objectives are the same. MS. HUGONIN replied, "Yes. And I think that in most of the parts of the state, it has been worked through successfully. And if we need to provide more focused attention in one area of the state, then ... we are certainly willing to sit down and to do that. I think with training and protocols, it can be worked out." Number 2022 REPRESENTATIVE PORTER suggested that before the next hearing, the committee should determine whether there are federal requirements that would invalidate this bill, causing the state to lose funding if this bill became law. Number 2051 REPRESENTATIVE PORTER concluded by making the following statement to everyone who had testified that day, asking that the message be carried to anyone who was not still listening: "If there is any shelter in any part of this state that has ever had a problem that they were not immediately able to work out regarding the accusation of domestic violence involving a police officer or a policy employee, please let me know. It will be worked out." Number 2080 SANDRA M. STONE, Project Coordinator, Council on Domestic Violence and Sexual Assault, Department of Public Safety, came forward to testify, noting that many of her comments had already been stated. She specified that she was there to express the council's opposition to HB 267. They do not believe it is necessary to add this exception for missing persons. MS. STONE explained, "As other people have stated, it feels like this bill was introduced in response to an incident in one area of the state, in a couple different instances that had happened there. In the past ten years, this is the only area where we've found that it's been an issue, other than the one incident here in Juneau back in '86. We also believe that there has been some work done ... between that shelter program and law enforcement, and the council continues to check in, back with them, to try to see if there is any suggestions how we can help with that, with that issue, with them. It just feels like the legislation to address one problem in one area doesn't seem to be necessary or effective." Number 2141 MS. STONE said it also brings up serious concerns about victim safety, as well as perhaps the victim's perceived sense of safety. She told the following story: "I was the shelter director in Valdez for five years, and there is an example that comes to mind very strongly as we've talked about this issue. There was a woman in our community who married a retired law enforcement officer. Within less than a month after their wedding, he seriously beat her up in front of a local restaurant. When she came into the shelter, one of her first comments was she would not be there if someone else had not called 911. The officer who came ... on the scene had been at their wedding; so was every officer in the police department when she went in ... to make her statement." MS. STONE continued her story: "The officers there, I believed, were all good officers, but in her mind, her batterer had already convinced her that they were all his best buddies, never in the world, even if there were witnesses from people in the restaurant watching him beat her up -- that his word would hold true over hers, and that he would not be held accountable. And, in fact, the case was thrown out of court, unfortunately." MS. STONE concluded, "It just feels like, again, it would be another tool that batterers could use to manipulate their victims, either by filing false missing persons reports or even using that a threat with their victims, 'You leave and I'll file a missing persons report, and then the police will be after you.'" Ms. Stone emphasized that the issue of perceived problems, with victims who believe the police are being used against them, had not been mentioned that day but needs to be considered. Number 2258 MS. WIEFFERING spoke again via teleconference. She thanked Representative Porter for his concern about taking care of police officers who are perpetrators; she said these are often the most dangerous perpetrators and have the most to lose. She explained, "They've already violated the law, and for that information to be divulged to the police in any way, or to reveal the victim's whereabouts, I mean sometimes that woman simply has to disappear to save her life." Ms. Wieffering said this greatly concerns her in terms of being able to provide a safe place for such a woman, and it may be the only place that woman can go where the man can't find her. MS. WIEFFERING concluded by saying she'd had the privilege of participating in the recent Governor's domestic violence summit. She said much good work came out of that. One of the criteria used to make recommendations for action in improving our state response to domestic violence is the question: Does this action place victims at further risk? "I believe that HB 267 does place victims at further risk and should therefore not be passed," Ms. Wieffering concluded. CHAIRMAN GREEN thanked Ms. Wieffering and announced that HB 267 would be held over and heard again.
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