Legislature(2009 - 2010)CAPITOL 120
02/01/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB298 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 298 | TELECONFERENCED | |
HB 298 - SEX OFFENSES; OFFENDER REGIS.; SENTENCING
1:14:17 PM
[CHAIR RAMRAS announced that the only other order of business
would be HOUSE BILL NO. 298, "An Act relating to the crimes of
harassment, possession of child pornography, and distribution of
indecent material to a minor; relating to suspending imposition
of sentence and conditions of probation or parole for certain
sex offenses; relating to aggravating factors in sentencing;
relating to registration as a sex offender or child kidnapper;
amending Rule 16, Alaska Rules of Criminal Procedure; and
providing for an effective date."]
CHAIR RAMRAS relayed that the committee would be addressing
proposed amendments to HB 298; that public testimony had
previously been closed; and that members' packets now include
written testimony from the American Civil Liberties Union of
Alaska (ACLU of Alaska).
1:16:35 PM
CHAIR RAMRAS referred to Amendment 1, labeled 26-GH2859\A.7,
Luckhaupt, 1/27/10, which read:
Page 1, line 1, following "harassment,":
Insert "distribution and"
Page 3, following line 19:
Insert a new bill section to read:
"* Sec. 5 AS 11.61.125(a) is amended to read:
(a) A person commits the crime of distribution
of child pornography if the person distributes in this
state or advertises, promotes, solicits, or offers to
distribute in this state [BRINGS OR CAUSES TO BE
BROUGHT INTO THE STATE FOR DISTRIBUTION, OR IN THE
STATE DISTRIBUTES, OR IN THE STATE POSSESSES,
PREPARES, PUBLISHES, OR PRINTS WITH INTENT TO
DISTRIBUTE,] any material that is proscribed under
AS 11.61.127 [VISUALLY OR AURALLY DEPICTS CONDUCT
DESCRIBED IN AS 11.41.455(a), KNOWING THAT THE
PRODUCTION OF THE MATERIAL INVOLVED THE USE OF A CHILD
UNDER 18 YEARS OF AGE WHO ENGAGED IN THE CONDUCT]."
Renumber the following bill sections accordingly.
Page 3, lines 21 - 26:
Delete all material and insert:
"(a) A person commits the crime of possession of
child pornography if the person knowingly possesses or
knowingly accesses on a computer with intent to view
any material that visually [OR AURALLY] depicts
conduct described in AS 11.41.455(a) knowing that the
(1) production of the material involved the
use of a child under 18 years of age who engaged in
the conduct or a depiction of a part of an actual
child under 18 years of age who, by manipulation,
creation, or modification, appears to be engaged in
the conduct; or
(2) material appears to include a child
under 18 years of age engaging in the conduct."
Page 4, line 4:
Delete "a new subsection"
Insert "new subsections"
Page 4, line 5:
Delete "for possession of child pornography"
Page 4, following line 11:
Insert new subsections to read:
"(f) In this section,
(1) "appears to include a child" means that
the material appears to include, or conveys the
impression that it includes, a person who is under 18
years of age and the material was not created using a
depiction of any part of an actual child under 18
years of age, and
(A) the average individual, applying
contemporary community standards, would find that the
depiction, taken as a whole, appeals to the prurient
interest; and
(B) a reasonable person would find that the
depiction, taken as a whole, lacks serious literary,
artistic, political, or scientific value;
(2) "computer" has the meaning given in
AS 11.46.990.
(g) In a prosecution under (a) of this section,
the prosecution is not required to prove the identity
of a minor depicted or that the defendant knew the
identity of a minor depicted."
Page 9, line 3:
Delete "Sections 1-15"
Insert "Sections 1-16"
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
The committee took an at-ease from 1:17 p.m. to 1:18 p.m.
CHAIR RAMRAS mentioned that Amendment 1 would [in part] add a
new Section 5 to HB 298.
CHAIR RAMRAS made a motion to adopt Amendment 1.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
The committee took an at-ease from 1:19 p.m. to 1:21 p.m.
1:21:29 PM
JANE W. PIERSON, Staff, Representative Jay Ramras, Alaska State
Legislature, explained that [Amendment 1] would amend AS
11.61.125(a) and AS 11.61.127 in order to provide for the
apprehension and prosecution of distributors of computer-
generated images of children engaged in sex acts. This type of
industry is thriving due to the great difficulty police and
prosecutors have proving the identity of a victim and that the
images are not mere fantasy. Amendment 1 would criminalize the
distribution and possession of such computer-generated films and
images, and would make the arrest and prosecution of a
perpetrator possible even when the victim is not identifiable.
In 2008, the U.S. Supreme Court upheld the Prosecutorial
Remedies and Other Tools to end the Exploitation of Children
Today (PROTECT) Act of 2003, which [in part] criminalizes the
exchange of pictures depicting children in sexually explicit
poses, and any attempt to convince another person that such
pictures are of real children. She said Amendment 1 would
outlaw computer-generated child pornography and its
distribution. In response to a question, she confirmed that
[Amendment 1] constitutes new law.
1:25:14 PM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), said that as long as
Amendment 1 is narrowly drawn such that its focus is on obscene
material, a standard already established by the U.S. Supreme
Court, it would be in line with constitutional limitations and
address civil liberty concerns. Without such a narrow focus,
however, Amendment 1 could run afoul of the First Amendment. In
response to a question, he explained that the ACLU of Alaska
doesn't support pornography or anything else that harms
children, and is merely concerned that proposed laws be
appropriately drafted so that they protect children but don't
limit First Amendment rights. He acknowledged that this can be
a challenging area of the law.
REPRESENTATIVE HOLMES, in response to a comment, observed that
Amendment 1 doesn't use the term, "obscene material", but does
require of the material that when taken as a whole and applying
contemporary community standards, a reasonable person would find
that it appeals to prurient interests and lacks serious
literary, artistic, political, or scientific value.
MR. MITTMAN said that is very close to the aforementioned
standard established by the U.S. Supreme Court, and surmised
that as a result, Amendment 1 is narrowly focused on obscene
material, which the courts have ruled doesn't receive First
Amendment protection.
REPRESENTATIVE GATTO questioned how the purported age of a
computer-generated character engaging in sex could be
determined.
MR. MITTMAN offered his belief that by having the proposed
language focus on obscene material, as described under the
aforementioned standard, it's not necessary to make such a
determination.
CHAIR RAMRAS offered his understanding that Mr. Mittman is not
opposed to Amendment 1.
MR. MITTMAN, in response to a question, said it appears that
Amendment 1 does not have any constitutional infirmities.
MS. PIERSON, in response to questions, explained that most other
states have a statutory definition of the term, "obscene", and
that she has not yet researched whether other states have
statutorily addressed computer-generated child pornography, but
imagines that some states have.
1:33:24 PM
SUE STANCLIFF, Special Assistant, Office of the Commissioner,
Department of Public Safety (DPS), in response to a question,
indicated that law enforcement is finding that [computer-
generated] child pornography is a problem.
1:34:09 PM
RON TIDLER, Detective Sergeant, Cyber Crimes Unit, Anchorage
Police Department (APD), Municipality of Anchorage (MOA);
Commander, Alaska Region, Internet Crimes Against Children
(ICAC) Task Force, added that almost 95 percent of law
enforcement's searches are uncovering large collections of
computer-generated child pornography. The images are graphic
and very clear that a small child is being sexually assaulted by
adult males. When interviewed, perpetrators say that such
images fuel their fantasies about sexually abusing children.
REPRESENTATIVE HOLMES questioned whether law enforcement would
view Amendment 1 as a great tool, and whether viewing computer-
generated child pornography serves as a substitute or whether it
serves as a gateway.
MS. STANCLIFF indicated that she would research those issues
further, and remarked that the DPS would always choose to pursue
the cases involving real children first.
CHAIR RAMRAS indicated that he favors Amendment 1 regardless of
whether the behavior it addresses serves as a substitute or as a
gateway.
REPRESENTATIVE GRUENBERG asked how many cases passage of
Amendment 1 would result in, and whether its passage would
require the DPS to revise its fiscal note.
MS. STANCLIFF indicated that because of limited resources to
pursue such cases, she doesn't believe that passage of
Amendment 1 would result in the DPS having to revise its fiscal
note, which currently only addresses the bill's sex offender
registration provisions. In response to other questions, she
reiterated that the DPS's first priority is to pursue cases
involving real children, adding that the DPS is currently
already overwhelmed by the number of such cases.
REPRESENTATIVE GRUENBERG removed his objection.
CHAIR RAMRAS, noting that there were no further objections,
announced that Amendment 1 was adopted.
1:41:13 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
labeled 26-GH2859\A.8, Luckhaupt, 1/26/10, which read:
Page 2, line 30, through page 3, line 1:
Delete all material.
Reletter the following subsections accordingly.
Page 8, following line 31:
Insert a new bill section to read:
"* Sec. 17. The uncodified law of the State of
Alaska is amended by adding a new section to read:
LEGISLATIVE STATEMENT CONCERNING CULPABLE MENTAL
STATE. In AS 11.56.840(a), as repealed and reenacted
by sec. 3 of this Act, the only culpable mental state
required to be proven by the prosecution is the
"knowing" requirement in paragraph (2) of that
subsection. No other culpable mental state needs to be
proven for the other elements of that offense."
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 15 and 17"
CHAIR RAMRAS objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that Amendment 2 would
clarify - via deleting Section 3's proposed as AS 11.56.840(b)
and adding a portion of its language to a new legislative intent
section in uncodified law - that a mens rea of knowing is the
only mental state required for the entirety of Section 3's
proposed AS 11.56.840(a), which pertains to the crime of failure
to register as a sex offender or child kidnapper in the second
degree. He offered his understanding that the approach taken by
Amendment 2's proposed changes conforms with standard
legislative drafting practices.
1:45:26 PM
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), speaking as the drafter, concurred, and assured
members that Amendment 2 wouldn't change anything substantive
about Section 3.
CHAIR RAMRAS removed his objection, ascertained that there were
no further objections, and announced that Amendment 2 was
adopted.
CHAIR RAMRAS referred to and then withdrew Amendment 3, labeled
26-GH2859\A.9, Luckhaupt, 1/27/10, which read:
Page 1, line 1:
Delete "harassment,"
Delete the second occurrence of ","
Page 3, lines 13 - 19:
Delete all material.
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 14"
Page 9, line 5:
Delete "Section 16"
Insert "Section 15"
1:47:25 PM
CHAIR RAMRAS referred to Amendment 4, labeled 26-GH2859\A.15,
Luckhaupt, 1/27/10, which read:
Page 3, lines 14 - 19:
Delete all material and insert:
"(a) A person commits the crime of harassment in
the first degree if
(1) the person violates AS 11.61.120(a)(5)
and the offensive physical contact is contact with
human or animal blood, mucus, saliva, semen, urine,
vomitus, or feces; or
(2) under circumstances not proscribed
under AS 11.41.434 - 11.41.440, the person violates
AS 11.61.120(a)(5) and the offensive physical contact
is contact by the person touching another person's
genitals, anus, or female breast, either directly or
through clothing."
MS. PIERSON explained that Amendment 4 would amend Section 4's
proposed changes to AS 11.61.118(a) - the crime of harassment in
the first degree - such that it wouldn't apply to sexual abuse
of a minor crimes. Amendment 4 addresses the fact that a lack
of consent is not an element of sexual abuse of a minor crimes,
and would ensure that a charge of sexual abuse of a minor could
not be plead down to a charge of harassment.
REPRESENTATIVE GRUENBERG [although no motion had been made nor
an objection stated] relayed that he would remove his objection
to the adoption of Amendment 4.
CHAIR RAMRAS [although no motion had been made] objected for the
purpose of discussion.
REPRESENTATIVE GATTO [made a motion to amend] Amendment 4, to
add the word, "buttocks" to proposed AS 11.61.118(a)(2) after
the word "anus".
CHAIR RAMRAS objected to the amendment to Amendment 4.
REPRESENTATIVE HOLMES offered her understanding that offensive
physical contact of a person's buttocks is already covered under
AS 11.61.120 - the crime of harassment in the second degree.
REPRESENTATIVE GATTO withdrew the amendment to Amendment 4.
CHAIR RAMRAS removed his objection, and announced that
Amendment 4 was adopted.
1:51:15 PM
CHAIR RAMRAS referred to Amendment 5, labeled 26-GH2859\A.13,
Luckhaupt, 1/27/10, which read:
Page 3, line 19, following "clothing":
Insert "and the other person is 16 years of age
or older"
REPRESENTATIVE GRUENBERG [although no motion had yet been made]
objected for the purpose of discussion.
CHAIR RAMRAS made a motion to adopt Amendment 5.
MS. PIERSON explained that Amendment 5 was submitted by the
Department of Law (DOL) and is intended to cure the same problem
that Amendment 4 addressed.
The committee took an at-ease from 1:52 p.m. to 1:54 p.m.
CHAIR RAMRAS noted that Amendment 4 and Amendment 5 are similar
in intent but differ in construct.
REPRESENTATIVE GRUENBERG removed his objection.
CHAIR RAMRAS withdrew Amendment 5.
1:56:01 PM
CHAIR RAMRAS made a motion to adopt Amendment 6, labeled 26-
GH2859\A.11, Luckhaupt, 1/27/10, which read:
Page 6, lines 30 - 31:
Delete all material and insert:
"(E) specified in AS 11.41.434 - 11.41.438
or 11.41.452 - 11.41.458 and the defendant was 10 or
more years older than the victim;"
REPRESENTATIVE HOLMES objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG offered his understanding that the
proposed amendment labeled 26-GH2859\A.14, Luckhaupt, 1/27/10,
[which later became known as Amendment 7] is proposing a similar
change to the same provision of the bill as Amendment 6;
[Amendment 7] read:
Page 6, lines 30 - 31:
Delete all material and insert:
"(E) specified in AS 11.41.434 - 11.41.458
or AS 11.61.128 and the defendant was 10 or more years
older than the victim;"
MS. PIERSON explained that both [Amendment 6 and Amendment 7]
propose to rewrite Section 14's proposed AS 12.55.155(c)(18)(E)
- a new aggravating factor that could be applied for the crime
of sexual abuse of a minor in the second degree under AS
11.41.436(a)(2) when the defendant is 18 years of age or older -
such that instead the aggravating factor could be applied if the
defendant is 10 or more years older than the victim. Under both
amendments, the proposed new aggravating factor could be applied
for any crime specified in AS 11.41.434 - AS 11.41.438 or AS
11.41.452 - AS 11.41.458, all of which are crimes involving
victims who are minors, but the difference is that under
[Amendment 7], the proposed new aggravating factor could also be
applied for the crimes specified in AS 11.41.440 - sexual abuse
of a minor in the fourth degree; AS 11.41.450 - incest; and AS
11.41.128 - electronic distribution of indecent material to
minors. [Amendment 7] is therefore more inclusive than
[Amendment 6].
REPRESENTATIVE GRUENBERG said he prefers [Amendment 7] because
it's a little broader, surmising that the same policy applies to
the aforementioned additional crimes, and suggested that
Amendment 6 be withdrawn in favor of [Amendment 7].
REPRESENTATIVE HOLMES removed her objection to the motion to
adopt Amendment 6.
CHAIR RAMRAS withdrew Amendment 6.
1:59:01 PM
CHAIR RAMRAS made a motion to adopt Amendment 7 [text provided
previously].
REPRESENTATIVE GRUENBERG objected for the purpose of discussion,
adding that he supports Amendment 7.
CHAIR RAMRAS said he also supports Amendment 7.
REPRESENTATIVE GATTO questioned why the proposed new aggravating
factor is being changed such that it would no longer specify
that the defendant be 18 years of age or older.
MR. LUCKHAUPT offered his understanding that the DOL's goal with
Amendment 7 is to provide for an aggravating factor at
sentencing in cases where there is a substantial age difference
between the minor victim and the defendant, and surmised that
the proposed new aggravating factor need not specify that the
defendant be 18 years of age or older, because it would only
apply to someone subject to sentencing as an adult, who, for the
most part, would be someone over the age of 16. So via either
Amendment 6 or Amendment 7, the specification that the defendant
be 18 years of age or older is being removed as not being a
significant distinction for purposes of applying the proposed
new aggravating factor at sentencing.
REPRESENTATIVE GATTO, in response to comments and a question,
indicated that he would prefer that Amendment 7 be altered such
that the proposed new aggravating factor would specify that it
could be applied when either the defendant is 18 years of age or
older, or when the defendant is 10 or more years older than the
minor victim.
REPRESENTATIVE HERRON surmised that altering Section 14 as
Amendment 7 proposes would result in the proposed new
aggravating factor possibly being applied to more defendants.
MR. LUCKHAUPT acknowledged that both Amendment 6 and Amendment 7
provide that the proposed new aggravating factor could apply to
more crimes than currently listed in Section 14's proposed AS
12.55.155(c)(18)(E). He opined that retaining the provision
that the defendant be 18 years of age or older doesn't really
tie in anymore with the requirement that the defendant be 10
years or more older than his/her minor victim, again pointing
out that someone who isn't being sentenced as an adult wouldn't
be subject to the proposed new aggravating factor anyway. He
surmised that the DOL, in offering Amendment 7, feels that all
sexual abuse of a minor crimes should provide the opportunity
for an aggravating factor at sentencing when there is a
substantial age difference between the perpetrator and the
victim.
CHAIR RAMRAS expressed a preference for the broader amendment -
Amendment 7.
2:10:15 PM
REPRESENTATIVE GATTO expressed concern that without specifying
that the proposed new aggravating factor could be applied when
either the defendant is 18 years of age or older, or when the
defendant is 10 or more years older than the minor victim, an
adult who is sexually abusing a minor but who is only 9 years
older than his/her victim would not be subject to the proposed
new aggravator.
MR. LUCKHAUPT explained that there are going to be some cases
for which the proposed new aggravating factor just isn't going
to be available, because the elements of some of the offenses
referenced in Amendment 7 don't currently require that the
perpetrator be 18 years of age or older, or that the perpetrator
be 10 or more years older than the minor victim. Regardless,
it's still meaningful to have the proposed new aggravating
factor focus on perpetrators who are substantially older than
their victims.
REPRESENTATIVE GATTO indicated that he would not be offering an
amendment to Amendment 7 such that the proposed new aggravating
factor would specify that it could be applied when either the
defendant is 18 years of age or older, or when the defendant is
10 or more years older than the minor victim.
REPRESENTATIVE GRUENBERG noted that another way to address
Representative Gatto's concern would be to replace "10", as used
in Amendment 7, with a lower number. He indicated, though, that
he would not be offering an amendment to that effect.
CHAIR RAMRAS mentioned that he would be amenable to letting such
an amendment be offered later should any member come to feel
that that language should be modified.
REPRESENTATIVE GRUENBERG removed his objection to the motion to
adopt Amendment 7.
CHAIR RAMRAS announced that Amendment 7 was adopted.
2:14:26 PM
CHAIR RAMRAS made a motion to adopt Amendment 8, labeled 26-
GH2859\A.6, Luckhaupt, 1/26/10, which read:
Page 7, lines 1 - 31:
Delete all material and insert:
"* Sec. 15. AS 12.63.020(b) is amended to read:
(b) The department shall adopt, by regulation,
procedures to notify a sex offender or child kidnapper
who, on the registration form under AS 12.63.010,
lists a conviction for a sex offense or child
kidnapping that is a violation of a former law of this
state or a law of another jurisdiction, of the
duration of the offender's or kidnapper's duty under
(a) of this section for that sex offense or child
kidnapping. As a part of the regulations, the
department shall
(1) require the offender or kidnapper to
supply proof acceptable to the department of
unconditional discharge and the date it occurred; and
(2) if the registration requirement of the
offender or kidnapper arises from AS 12.63.100(5)(B),
require the offender or kidnapper to register for the
period of time that is required by the state or
jurisdiction from which the conviction and duty to
register arises.
* Sec. 16. AS 12.63.100(5) is amended to read:
(5) "sex offender or child kidnapper" means
a person
(A) convicted of a sex offense or child
kidnapping in this state or another jurisdiction
regardless of whether the conviction occurred before,
after, or on January 1, 1999; or
(B) required to register as a sex offender
or child kidnapper in another state or jurisdiction
for a crime that is not a sex offense or child
kidnapping as defined in this section but for which
the person is required to register as a sex offender
or child kidnapper in another state or jurisdiction;"
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 14"
Page 9, following line 4:
Insert a new subsection to read:
"(b) Sections 15 and 16 of this Act relating to
registration of sex offenders and child kidnappers
whose duty to register arises from conviction in
another state or jurisdiction for a crime that is not
defined as a sex offense under AS 12.63.100(6) or a
child kidnapping under AS 12.63.100(2) shall register,
report, and file as required under AS 12.63.010 if
their duty to register in the other state or
jurisdiction has not expired on the effective date of
this Act regardless of whether the conviction for the
crime in the other state or jurisdiction occurred
before, on, or after the effective date of this Act."
Reletter the following subsection accordingly.
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
REPRESENTATIVE HOLMES objected for the purpose of discussion.
2:15:00 PM
CHAIR RAMRAS then referred to the proposed amendment labeled 26-
GH2859\A.4, Luckhaupt, 1/26/10, which he characterized as
similar to Amendment 8, and which read:
Page 7, lines 1 - 31:
Delete all material and insert:
"* Sec. 15. AS 12.63.020(b) is amended to read:
(b) The department shall adopt, by regulation,
procedures to notify a sex offender or child kidnapper
who, on the registration form under AS 12.63.010,
lists a conviction for a sex offense or child
kidnapping that is a violation of a former law of this
state or a law of another jurisdiction, of the
duration of the offender's or kidnapper's duty under
(a) of this section for that sex offense or child
kidnapping. As a part of the regulations, the
department shall
(1) require the offender or kidnapper to
supply proof acceptable to the department of
unconditional discharge and the date it occurred; and
(2) if the registration requirement of the
offender or kidnapper arises from AS 12.63.100(5)(B),
require the offender or kidnapper to register for the
period of time that is required by the state or
jurisdiction from which the conviction and duty to
register arises.
* Sec. 16. AS 12.63.100(5) is amended to read:
(5) "sex offender or child kidnapper" means
a person
(A) convicted of a sex offense or child
kidnapping in this state or another jurisdiction
regardless of whether the conviction occurred before,
after, or on January 1, 1999; or
(B) required to register as a sex offender
or child kidnapper in another state or jurisdiction
for a crime that is not a sex offense or child
kidnapping as defined in this section but for which
the person is required to register as a sex offender
or child kidnapper in another state or jurisdiction;"
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 16"
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
REPRESENTATIVE HOLMES explained that if Amendment 8 were
adopted, she would not be offering the proposed amendment
labeled 26-GH2859\A.4, Luckhaupt, 1/26/10.
CHAIR RAMRAS offered his understanding that Amendment 8 is
intended to address a problem wherein a person who has to
register in another state as a sex offender or child kidnapper
could move to Alaska and not be required to register in Alaska,
because the laws of that other state are not similar enough to
Alaska law.
MR. LUCKHAUPT explained that under Amendment 8, if a person is
required to register in another state as a sex offender or child
kidnapper, then that would trigger the requirement that he/she
also register in Alaska and register for the same amount of time
as required by the other state. This should alleviate any
problem that could arise by attempting to define behavior that
does not currently constitute a sex offense or child kidnapping
offense under Alaska law as a sex offense, as is currently being
proposed via existing Section 15 of HB 298. Basically,
Amendment 8 gives comity to other states' laws, and this is
necessary because federal law mandates that Alaska register sex
offenders from other states, regardless that other states define
sex offenders and child kidnappers differently than Alaska does.
In response to a question, he reiterated that under Amendment 8,
the person from another state would have to register in Alaska
for the same amount of time required by that other state.
2:21:42 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), expressed concern
that under Amendment 8, the DPS would need to conduct a
tremendous amount of research in order to determine how long
each offender who moves to Alaska must be registered for in the
state he/she moves from. For example, in Minnesota, an
assessment is done on each offender to determine how long he/she
must register - anywhere from one year to life. Researching
this type of information, therefore, would be burdensome. The
DOL, via the language currently in Section 15, was attempting to
avoid that necessity, and, therefore, would prefer that HB 298
maintain the approach currently taken in Section 15, that of
continuing to use Alaska's existing two-tier system regarding
registration length - either 15 years or life - and then
determining which tier applies for a particular offender. In
response to a question, he indicated that under [both current
law and existing Section 15 of HB 298], the time an offender
spends registered in another state would be deducted from the
total amount of time he/she must be registered in Alaska.
MR. MITTMAN explained that in Doe v. State, 189 P.3d 999 (Alaska
2008), the Alaska Supreme Court ruled that people convicted of
sex offenses in Alaska before the enactment of the sex offender
registry statutes in 1994 could not be required to register
because it would violate the ex post facto clause of [both the
Alaska State Constitution and the U.S. Constitution]. The ACLU
of Alaska's concern is that a similar constitutional problem
would exist if an offender moving to Alaska from another state
were required to register in Alaska but his/her conviction in
the other state occurred prior to 1994.
MR. LUCKHAUPT said that that's definitely an issue. Referring
to Mr. Svobodny's comments, Mr. Luckhaupt posited that the DOL's
concerns could be addressed by adding language that says
Alaska's two-tier system would apply unless the offender
supplies evidence of the registration period in the other state;
under such additional language, the department would not have
the burden of conducting the aforementioned additional research.
Mr. Luckhaupt then acknowledged that the issue Mr. Mittman
raised might still need to be addressed by the court.
2:28:32 PM
REPRESENTATIVE GRUENBERG indicated that he shares Mr. Mittman's
concern. Representative Gruenberg then noted that Amendment 8
contains an applicability provision, whereas the proposed
amendment labeled 26-GH2859\A.4, Luckhaupt, 1/26/10, does not.
That provision appears to contain the same constitutional
problem, he remarked, in that it states that the bill's proposed
registration provisions would apply regardless of whether the
underlying conviction occurred before, on, or after the
effective date of the bill. Under the ex post facto clause of
the constitutions, a law punishing certain behavior cannot apply
to behavior conducted prior to the enactment of that law, prior
to the criminalization of that behavior, nor can an increase in
the punishment for certain behavior apply to behavior conducted
prior to the increase. He ventured his belief that this problem
could be cured by altering the language of Amendment 8 that
says, "regardless of whether the conviction for the crime in the
other state or jurisdiction occurred before, on, or after the
effective date of this Act". Representative Gruenberg asked Mr.
Luckhaupt to suggest alternative language that would ensure
constitutionality.
MR. LUCKHAUPT said he feels Amendment 8's applicability
provision is defensible as currently written, because it
pertains only to offenders who are already required to register.
In Doe, in contrast, the State had been attempting to expand the
registration statutes to apply retroactively to more crimes and
more people that weren't already subject to the registration
requirements.
REPRESENTATIVE GRUENBERG indicated that he would not be seeking
to amend the aforementioned language in Amendment 8 [at this
time].
REPRESENTATIVE GATTO noted that in Missouri, public urination is
considered a sex offense, and questioned whether, under the
proposed new language, a person convicted of that crime in
Missouri would have to register in Alaska upon moving here.
MR. LUCKHAUPT indicated that that would be the case.
CHAIR RAMRAS relayed that Amendment 8 would be set aside [with
the motion of whether to adopt it left pending].
REPRESENTATIVE GRUENBERG indicated a continuing concern that the
proposed registration requirements could result in a violation
of the ex post facto clause.
CHAIR RAMRAS relayed that the proposed amendment labeled 26-
GH2859\A.4, Luckhaupt, 1/26/10, [text provided previously] would
also be set aside.
CHAIR RAMRAS then noted that a proposed amendment labeled 26-
GH2859\A.16, Luckhaupt, 1/27/10, also addresses the same issues
as Amendment 8 and the proposed amendment labeled 26-GH2859\A.4,
Luckhaupt, 1/26/10, and would therefore be set aside as well;
the proposed amendment labeled 26-GH2859\A.16, Luckhaupt,
1/27/10, read:
Page 6, following line 31:
Insert a new bill section to read:
"* Sec. 15. AS 12.63.020 is amended by adding a new
subsection to read:
(c) A person required to register under
AS 12.63.010 for a conviction in another jurisdiction
that is not similar to an offense in this state must
register for a period described in
(1) (a)(2) of this section if the person
has been convicted of only one sex offense or only one
child kidnapping;
(2) (a)(1) of this section if the person
has been convicted of two or more sex offenses, two or
more child kidnappings, or one sex offense and one
child kidnapping."
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 16"
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
2:36:16 PM
CHAIR RAMRAS made a motion to Adopt Amendment 9, labeled 26-
GH2859\A.12, Luckhaupt, 1/27/10, which read:
Page 8, line 24:
Delete "any"
Insert "an"
REPRESENTATIVE HOLMES objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG objected.
CHAIR RAMRAS mentioned that Amendment 9 is being offered at the
request of the DOL, but he does not agree with the DOL
[regarding Amendment 9's proposed change to Section 16].
REPRESENTATIVE GRUENBERG observed that several other forthcoming
amendments also [propose to alter Section 16].
CHAIR RAMRAS questioned whether adoption of Amendment 9 could
result in convictions being overturned on the grounds that
defendants' constitutional rights were violated.
2:37:32 PM
MR. SVOBODNY explained that in terms of examining child
pornography evidence, the term, "any expert" could refer to
anyone claiming to be an expert on child pornography, whereas
the term, "an expert" is more likely to refer to someone who is
actually qualified to view the child pornography. In response
to a question, he indicated that early on in the case, before it
goes to trial, the courts would not be determining who qualifies
as an expert; instead, the defense merely notifies [the DOL] of
who it would be bringing in, as an expert, to inspect the
evidence.
CHAIR RAMRAS asked whether the term, "an expert" would be
construed to mean that only one expert could inspect the
evidence.
MR. SVOBODNY said that's not the intent of Amendment 9, which is
just meant to cleanup a possible ambiguity.
REPRESENTATIVE GRUENBERG offered his belief that most courts
would interpret the term, "an expert" to mean only one expert.
He expressed disfavor with Amendment 9.
REPRESENTATIVE GATTO questioned whether changing "any expert" to
just "experts" would address the DOL's concern.
MR. SVOBODNY indicated that it would.
REPRESENTATIVE GRUENBERG offered his understanding that
according to the legislative drafting manual, the use of the
singular, rather than the plural, is [preferred]. He opined
that the term, "any expert" is clearer than the term, "an
expert", and again expressed disfavor with Amendment 9.
CHAIR RAMRAS posited that a conceptual amendment could be
developed that would address everyone's concerns.
CHAIR RAMRAS then withdrew Amendment 9.
REPRESENTATIVE GRUENBERG expressed a preference for using the
term, "any experts".
2:41:54 PM
REPRESENTATIVE GATTO made a motion to adopt Conceptual
Amendment 10, to change on page 8, line 24, the term, "any
expert" to the term, "experts".
REPRESENTATIVE GRUENBERG objected; [made a motion to] amend
Conceptual Amendment 10 such that the term, "experts" would
become the term, "any experts"; and then withdrew his objection.
REPRESENTATIVE GATTO indicated that he was amenable to the
amendment to Conceptual Amendment 10.
CHAIR RAMRAS announced that Conceptual Amendment 10, as amended,
was adopted.
[Note to the reader: Conceptual Amendment 10, as amended,
altered language that was later deleted by the adoption of a
subsequent amendment - that being Amendment 12, as amended.]
2:43:17 PM
CHAIR RAMRAS made a motion to adopt Amendment 11, labeled 26-
GH2859\A.17, Luckhaupt, 1/28/10, which read:
Page 8, lines 3 - 31:
Delete all material and insert:
"DIRECT COURT RULE AMENDMENT. Rule 16(b), Alaska
Rules of Criminal Procedure, is amended by adding a
new paragraph to read:
(9) Custody of and Restriction on Availability of
Certain Material or Property. Except as otherwise
provided in this subsection, any material that is
proscribed by AS 11.41.455(a) or that is defined as
"child pornography" under 18 U.S.C. 2256 shall remain
in the care, custody, and control of a law enforcement
agency, the prosecution, or the court. Notwithstanding
(b)(1)(A)(iv) of this rule, the court shall deny any
request by the defendant to copy, photograph,
duplicate, or otherwise reproduce any property or
material that may be proscribed under AS 11.41.455(a)
or defined as "child pornography" under 18 U.S.C.
2256, provided the prosecution makes the property or
material reasonably available to the defendant.
Property or material shall be deemed to be made
reasonably available to the defendant if the
prosecution provides, at a prosecution facility, ample
opportunity for inspection, viewing, and examination
of the property or material by the defendant, the
defendant's attorney, and any individual the defendant
may seek to qualify to furnish expert testimony at
trial."
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
CHAIR RAMRAS then indicated a preference for a different
amendment.
CHAIR RAMRAS therefore withdrew Amendment 11.
2:44:29 PM
EPRESENTATIVE HOLMES made a motion to adopt Amendment 12,
labeled 26-GH2859\A.3, Luckhaupt, 1/26/10, which read:
Page 8, lines 3 - 31:
Delete all material and insert:
"DIRECT COURT RULE AMENDMENT. Rule 16(b), Alaska
Rules of Criminal Procedure, is amended by adding a
new paragraph to read:
(9) Restriction on Availability of Certain Material
or Property. Notwithstanding (b)(1)(A)(iv) of this
rule, the court shall deny any request by the
defendant to copy, photograph, duplicate, or otherwise
reproduce any property or material that may be illegal
or prohibited under AS 11.41.455(a) or defined as
"child pornography" under 18 U.S.C. 2256, provided the
prosecution makes the property or material reasonably
available to the defendant. Property or material shall
be deemed to be made reasonably available to the
defendant if the prosecution provides, at a
prosecution facility, ample opportunity for
inspection, viewing, and examination of the property
or material by the defendant, the defendant's
attorney, and any individual the defendant may seek to
qualify to furnish expert testimony at trial."
CHAIR RAMRAS objected for the purpose of discussion.
MR. LUCKHAUPT explained that Amendment 12 mirrors the federal
law that outlines the conditions under which child pornography
materials can be accessed by the defense. He mentioned that in
one case implicating that federal law, the court ruled in favor
of the defense when it was determined that the prosecution did
not comply with the conditions of the law.
REPRESENTATIVE GRUENBERG noted that language in Amendment 12
lists three classes of people who could have access to the child
pornography materials - "the defendant, the defendant's
attorney, and any individual the defendant may seek to qualify
to furnish expert testimony at trial" - and questioned whether
someone he referred to as "a lay witness" shouldn't also have
access to the child pornography material.
MR. LUCKHAUPT pointed out that that would violate federal law,
and that if any such person were truly essential for a fair
defense, the provision would be overridden anyway, and thus no
additional class of people need be added to the list of those
who could access the child pornography material. In response to
comments, he also pointed out that Amendment 12 [and existing
Section 16 of HB 298] address the period of time before a case
goes to trial, and said he cannot envision any such "lay
witness" needing access to child pornography materials that
early on in the case.
CHAIR RAMRAS said he supports Amendment 12 but would oppose any
amendment to Amendment 12 that would add another class of people
to the list of those who could access the child pornography
materials.
REPRESENTATIVE GRUENBERG questioned whether, if the provision
could get struck down in a situation where a "lay witness" were
truly essential for the defense in that phase of the case, there
should be language added to preclude any associated
constitutional challenge.
MR. LUCKHAUPT offered his belief that a constitutional challenge
would be unavoidable at that point anyway because of the
supremacy clause.
CHAIR RAMRAS removed his objection to Amendment 12.
MR. SVOBODNY referred to the language of Amendment 12 that says
in part, "Property or material shall be deemed to be made
reasonably available to the defendant if the prosecution
provides, at a prosecution facility, ample opportunity for
inspection, viewing, and examination of the property or material
by ...", and asked the committee to consider including the term
"law enforcement facility" as another location at which to view
the child pornography materials. He explained that such
evidence is generally kept at law enforcement facilities, rather
than at prosecution facilities.
2:52:33 PM
CHAIR RAMRAS made a motion to amend Amendment 12 such that its
language which currently reads, "at a prosecution facility,"
would be changed to read, "at a prosecution or law enforcement
facility,". There being no objection, Amendment 12 was amended,
CHAIR RAMRAS, observing that there were no further objections,
announced that Amendment 12, as amended, was adopted.
REPRESENTATIVE GRUENBERG said he was withdrawing Amendment 13,
which read [original punctuation provided]:
Page 8, lines 1 through 31:
Strike section 16.
2:54:56 PM
EPRESENTATIVE GATTO made a motion to adopt Amendment 14, labeled
26-GH2859\A.21, Luckhaupt, 2/1/10, which read:
Page 1, line 2, following "minor;":
Insert "relating to sex offenders and child
kidnappers;"
Page 5, following line 6:
Insert a new bill section to read:
"* Sec. 11. AS 12.55.015(a) is amended to read:
(a) Except as limited by AS 12.55.125 -
12.55.175, the court, in imposing sentence on a
defendant convicted of an offense, may singly or in
combination
(1) impose a
[(A)] fine when authorized by law and as
provided in AS 12.55.035; [OR
(B) REPEALED]
(2) order the defendant to be placed on
probation under conditions specified by the court that
may include provision for active supervision;
(3) impose a definite term of periodic
imprisonment, but only if an employment obligation of
the defendant preexisted sentencing and the defendant
receives a composite sentence of not more than two
years to serve;
(4) impose a definite term of continuous
imprisonment;
(5) order the defendant to make restitution
under AS 12.55.045;
(6) order the defendant to carry out a
continuous or periodic program of community work under
AS 12.55.055;
(7) suspend execution of all or a portion
of the sentence imposed under AS 12.55.080;
(8) suspend imposition of sentence under
AS 12.55.085;
(9) order the forfeiture to the
commissioner of public safety or a municipal law
enforcement agency of a deadly weapon that was in the
actual possession of or used by the defendant during
the commission of an offense described in AS 11.41,
AS 11.46, AS 11.56, or AS 11.61;
(10) order the defendant, while
incarcerated, to participate in or comply with the
treatment plan of a rehabilitation program that is
related to the defendant's offense or to the
defendant's rehabilitation if the program is made
available to the defendant by the Department of
Corrections;
(11) order the forfeiture to the state of a
motor vehicle, weapon, electronic communication
device, or money or other valuables, used in or
obtained through an offense that was committed for the
benefit of, at the direction of, or in association
with a criminal street gang;
(12) order the defendant to have no
contact, either directly or indirectly, with a victim
or witness of the offense until the defendant is
unconditionally discharged;
(13) for a defendant convicted of an
offense requiring the defendant to register under
AS 12.63, order the defendant to post a sign in the
yard of the defendant's residence or on the
defendant's door, if the defendant resides in a
multifamily residential complex, stating that the
resident is a sex offender or child kidnapper."
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 16"
Page 9, line 5:
Delete "Section 16"
Insert "Section 17".
REPRESENTATIVE HOLMES objected.
REPRESENTATIVE GATTO offered that Amendment 14 would discourage
sex offenders in other states from moving to Alaska, and would
encourage sex offenders in Alaska to move out of state, and
would do so by giving the court the authority, should it so
choose, to order sex offenders to post a sign at their residence
stating that they are sex offenders. He indicated that he's
heard complaints from people that they'd had no idea they were
living near a sex offender, and surmised that Amendment 14 would
address such situations.
CHAIR RAMRAS expressed concern with Amendment 14. He relayed
his understanding that when sex offenders are unable to find a
stable living situation, they are more prone to reoffend.
Furthermore, such a court order could endanger the lives of
those who have already served their time for their crime.
REPRESENTATIVE GATTO argued that such a court order would be
discretionary rather than mandatory, and so perhaps it would
only be ordered for repeat sex offenders.
CHAIR RAMRAS pointed out that such discretion could create a
problem in and of itself because different standards could be
applied by different courts. He added, "I'm not certain that I
want to give that discretion to a judge."
REPRESENTATIVE DAHLSTROM, acknowledging that point, nonetheless
expressed favor with Amendment 14, citing a desire to focus on
the needs of victims rather than on the needs of perpetrators.
REPRESENTATIVE HOLMES pointed out that others may be living with
the offender and such signage could prove detrimental to them,
and thus she is not comfortable voting in favor of Amendment 14
at this time.
CHAIR RAMRAS concurred that signage influences the behavior of
others.
REPRESENTATIVE LYNN indicated a preference for leaving the
responsibility of researching the sex offender registry up to
the neighbors themselves.
CHAIR RAMRAS offered an example in concurrence with
Representative Holmes's point.
3:01:37 PM
REPRESENTATIVE GATTO, citing an investigative-type television
program he'd recently seen, offered his belief that droves of
sex offenders are still seeking victims, still seeking to
reoffend, and opined, therefore, that sex offenders should be
driven out of the state.
CHAIR RAMRAS questioned whether Amendment 14 could be amended
such that it could only be applied to those who have been
convicted of a sex offense and were subject to an aggravating
factor at sentencing.
REPRESENTATIVE GATTO, in response to other questions, surmised
that providing for some discretion would still be warranted,
particularly with regard to the issues of compliance and
enforcement.
MR. LUCKHAUPT indicated that such a provision could be limited
to "aggravated sex offenses," for example, those that require
lifetime registration. He mentioned that statutory steps have
already been taken to encourage people to access the sex
offender registry instead of relying on signs in sex offenders'
front yards, for example.
CHAIR RAMRAS suggested that more work be done on Amendment 14.
3:05:47 PM
EPRESENTATIVE GATTO said he'd intended for Amendment 14 to be
drafted such that its proposed court order could only apply to
those convicted of sexual abuse of a minor crimes.
MR. LUCKHAUPT indicated that he'd instead drafted it such that
it would apply to all those convicted of any sex offense.
CHAIR RAMRAS relayed that HB 298, as amended, would be held over
[with the motions to adopt Amendment 14 and Amendment 8 left
pending].
REPRESENTATIVE GRUENBERG, on the issue of Amendment 14, noted
that he's heard of situations in which the perpetrator lives in
his/her vehicle, and therefore questioned whether Amendment 14's
proposed court order could result in a sex offender being
required to post a sign on his/her vehicle.
REPRESENTATIVE GATTO said no.
REPRESENTATIVE DAHLSTROM offered her understanding that such a
vehicle would be impounded by law enforcement, thus rendering
the issue moot.
REPRESENTATIVE GRUENBERG pointed out, however, that Amendment
14's proposed court order could apply to "ex" offenders as well.
[HB 298, as amended, was held over with the motions to adopt
Amendment 14 and Amendment 8 left pending.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| 2 HB298 Sectional.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 3 HB298 version A.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 1 HB298 HJUD Hearing Request.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 9 Amendment pkt.pdf |
HJUD 2/1/2010 1:00:00 PM |
|
| 4 HB298 CTS Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 5 HB298 DOC Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 6 HB298 PDA Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 7 HB298 LAW Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 8 HB298-DPS Fiscal Note.pdf |
HJUD 2/1/2010 1:00:00 PM |
HB 298 |