Legislature(2005 - 2006)CAPITOL 120
01/27/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB326 | |
| HB321 | |
| HB314 | |
| HB379 | |
| HB343 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 150 | TELECONFERENCED | |
| *+ | HB 379 | TELECONFERENCED | |
| *+ | HB 343 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| = | HB 326 | ||
| = | HB 321 | ||
| = | HB 314 | ||
HB 326 - POSTING LEWD MATERIAL AS HARASSMENT 1:08:16 PM CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 326, "An Act relating to harassment." [HB 326, as amended, was moved from committee on 1/18/06; in committee packets was a proposed committee substitute (CS) for HB 326, Version 24-LS1223\F, Luckhaupt, 1/26/06.] 1:08:39 PM REPRESENTATIVE COGHILL made a motion to rescind the committee's action on 1/18/06 in reporting CSHB 326(JUD) [HB 326, as amended on 1/18/06] from committee. There being no objection, it was so ordered. REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, one of the prime sponsors of HB 326, relayed that the proposed CS, Version F, corrects some technical aspects of the version of the bill that moved from committee on 1/18/06. 1:09:40 PM REPRESENTATIVE COGHILL made a motion to adopt the proposed CS for HB 326, Version 24-LS1223\F, Luckhaupt, 1/26/06, as a work draft. There being no objection, Version F was before the committee. 1:10:07 PM MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, House Finance Committee, Alaska State Legislature, one of the prime sponsors of HB 326, relayed on behalf of Representative Meyer that members' packets contain a memorandum from the sponsor highlighting comments from Legislative Legal and Research Services, the Department of Law (DOL), and the Alaska Court of Appeals case, McKillop v. State; and indicating that [Amendments 1 and 2] to HB 326 would hinder the state's ability to prosecute someone. 1:10:51 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), explained that the words, "sole purpose" would make it much more difficult to prosecute someone, notwithstanding the court's ruling in McKillop, because the DOL would have to prove beyond a reasonable doubt that the person performed the activities listed in proposed AS 11.61.120(a)(6) for no other reason than to harass or annoy another person. MR. PAWLOWSKI indicated that Version F contains the title change that was incorporated into the original bill via [Amendment 3] and aside from that change is identical to the original version. REPRESENTATIVE GRUENBERG said he is concerned that the court's interpretation in McKillop would make it impossible to prosecute the type of behavior outlined in proposed AS 11.61.120(a)(6). He offered his belief that they should make it clear that the court should reexamine its interpretation of AS 11.61.120(a)(4) because it failed to note the practical implications of its decision in McKillop, that being that it will be impossible to prosecute someone for violating that statute. He asked Ms. Carpeneti to comment on this issue. MS. CARPENETI said that the DOL's position is that when statute includes as an element of the defense that the state has to prove beyond a reasonable doubt that the defendant's actions were for the sole purpose of harassing or annoying another person, then the DOL must prove that fact beyond a reasonable doubt; this will be difficult because people do things for a variety of reasons, or, at the very least, can claim that they had a variety of reasons. REPRESENTATIVE GRUENBERG asked whether it would help to include a "purposes" section in the bill, that purpose being that the legislature is considering the practical implication of the [ruling in McKillop]. MS. CARPENETI said she has found such statements to be helpful. REPRESENTATIVE GRUENBERG suggested that "findings and purposes" language could be drafted in the House Finance Committee; that language could reflect that they are directly confronting [the interpretation in McKillop] and are asking the court to consider the practical consequences of its decisions. 1:16:42 PM REPRESENTATIVE GARA offered his belief that without stipulating that the intent to annoy is either a main purpose or a primary purpose for distributing the types of photographs outlined in the bill, it would make criminals out of kids who are distributing photographs of public figures. MR. PAWLOWSKI said he would argue that even that behavior is unacceptable if the photographs contain the elements listed in proposed AS 11.61.120(a)(6); such photographs are not casual photographs regardless of who the subject is, and the distribution of them rises to a level of conduct that should be criminal. REPRESENTATIVE GARA offered his belief that as written, the bill also captures behavior that is not meant to be covered. CHAIR McGUIRE offered her understanding that the committee doesn't want to be making criminals out of "people who are pranksters, who are kids, who [are] goofing off"; not that that conduct is to be condoned, however. This proposed law is for those serious cases where one is truly harassing somebody, and stems from a situation in which a constituent of the sponsor was very upset to have nude photographs of herself being posted in an offensive manner. She asked whether it would be acceptable to use the term "primary" or "main" - or perhaps some other term that is used in another criminal statute - instead of "sole"; some word that will relay that although there may have been ancillary motivations for the behavior, the main goal was really to harass someone. She surmised that including something along those lines would make members more comfortable while also clarifying the intent of the legislation. MS. CARPENETI explained that the DOL has to prove, beyond a reasonable doubt, that when the person did the act, that he/she did it with intent to annoy or harass. Therefore, the use of the word "primary" is better than "sole", but the DOL would rather only have to prove that the person acted as he/she did with the intent to harass or annoy another person. As demonstrated in the McKillop case, she pointed out, the courts are not going to allow broad-ranging prosecutions that punish a person for a silly prank or a child for behaving in a juvenile manner. CHAIR McGUIRE acknowledged that point. 1:23:50 PM REPRESENTATIVE GARA said he is not comfortable with the concept of writing a law in a broad fashion and then simply trusting that all prosecutors won't enforce the law to the full extent of the words in that law. MS. CARPENETI pointed out, however, that this same standard must be used in the prosecution of all the other paragraphs of the harassment statute. "I think that ... requiring, beyond a reasonable doubt, proof of intent to harass or annoy another person ... gets at the crux of what you're looking at; now, if you want to put "primary", that would be better than "sole", [but] I think it's not necessary and it might be problematical," she added. REPRESENTATIVE GARA indicated that with regard to "harass", that is acceptable; however, the language is also making it a crime to "annoy" someone. Someone may not be forwarding a photograph of a public figure with the intent to harass the subject, but [a reasonable person could be expected to assume] that the action will annoy the subject; thus, even though it needs to be proven beyond a reasonable doubt, simply annoying someone would also be against the law. Therefore, he expressed a preference for including the word "primary" or some other word which will stipulate that the purpose, regardless that the act was intentional, has to be a motivating purpose. MS. CARPENETI argued that by including such language, the DOL would find itself in a situation wherein the defendant simply says that in addition to having the intent to annoy or harass, he/she committed the act for his/her own gratification or for various other reasons. Again, this could be problematic for the prosecution, she remarked, and recommended that such language not be included. REPRESENTATIVE GARA suggested that using the term, "a main purpose" would address the DOL's concern. For example, a person could have three main reasons to commit the act but one of them was to harass another person. 1:26:29 PM MS. CARPENETI indicated that the language in subsection (a) - "with intent to annoy or harass" - demonstrates that a person already has a main purpose in committing the act. She suggested, though, that if such words are added, that they apply only to proposed paragraph (6). REPRESENTATIVE GARA agreed. REPRESENTATIVE WILSON concurred that a defendant could always say, whether true or not, that he/she committed an act for reasons in addition to harassing or annoying. MS. CARPENETI said proving such to be false would be very difficult. REPRESENTATIVE WILSON surmised, then, that defendants could be given a "total out." REPRESENTATIVE GARA said that is why he is suggesting the use of the term, "a main purpose", rather than, "the main purpose". CHAIR McGUIRE noted that when paragraph (6) is read in conjunction with subsection (a), it is clear that one must have the intent to harass or annoy another person, and therefore her concern with the current proposed language is alleviated. She indicated that [the DOL probably] doesn't want to get into having to measure to what percentage a person has the intent to harass or annoy. She remarked that she wants the record to reflect that [the committee does] not want the bill to apply to school pranks, and that it views harassment as a serious crime. 1:29:57 PM REPRESENTATIVE GARA suggested that the bill could be changed such that it wouldn't apply when public figures are the subject of a photograph. Another option would be to change the bill such that proposed paragraph (6) only applies when the intent is to harass, but not when the intent is to annoy. MS. CARPENETI questioned how [the latter suggested] change would be drafted. CHAIR McGUIRE said she is uncomfortable with the concept of having the intent to annoy not apply to paragraph (6). As for the suggested change regarding public figures, she pointed out that the public figure would have to come forward and say that the publishing, posting, or distributing of the types of photographs listed in paragraph (6) annoys or harasses him/her; therefore, a kid in Alaska forwarding on a picture of a public figure is unlikely to be prosecuted under the proposed statute. Furthermore, a legislator could be considered a "public figure". Just because public figures have a higher level of exposure, she remarked, she doesn't know that they need to be [exempted from the bill]. REPRESENTATIVE COGHILL pointed out that if public figures were [exempted from the bill], the question could then become how much of a public figure was the subject of a photograph. He surmised that current law already outlines that one has the right to not be annoyed, and opined that paragraph (6) stipulates probably the most egregious behavior as compared to the behavior outlined in the other five paragraphs. REPRESENTATIVE GRUENBERG noted that paragraph (6) pertains to more than mere speech, which the court addressed in McKillop, as did the court in Jones v. Anchorage, which said, "We conclude that AS 11.61.120(a)(4) must be interpreted to prohibit telephone calls only when the call has no legitimate communicative purpose - when the caller's speech is devoid of any substantial information and the caller's sole intention is to annoy or harass the recipient." He asked whether the sponsor wishes to address only paragraph (6) or is willing to take on the issue raised in McKillop. If it is the latter, he suggested, they could add to [subsection (a)] some of the language used in Jones to say, "when the person's communication is devoid of any substantial information and the [person's] intention is to annoy or harass the recipient". He also suggested that they should provide a definition for the word "anonymous", which is used in paragraph (4) of AS 11.61.120(a); they could perhaps define it as the court does. 1:38:56 PM MR. PAWLOWSKI relayed that the sponsor would prefer to simply address paragraph (6). MS. CARPENETI concurred. REPRESENTATIVE GRUENBERG offered his belief that at some point in the future they should address the remainder of AS 11.61.120 in light of the ruling in McKillop. REPRESENTATIVE ANDERSON pointed out that McKillop and Jones are many years old and address the issue of phone calls rather than photographs, surmised that many public figures will never even know that kids might be passing around their photographs and thus won't be harassed or annoyed by that activity, offered his belief that the courts will have the discretion to ensure that only legitimate instances of harassment are prosecuted, and opined that the legislature is correct in making a policy call and setting a precedent to say that such behavior is unacceptable. He further opined that there is no need to codify the court's interpretation of AS 11.61.120(1)(4). 1:43:18 PM REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment [1], to insert the words, "with a main purpose being to harass or annoy the person," on page 1, line 15, after "(6)". He opined that the addition of this language will satisfy the intent of the sponsor without making the provision so hard to prosecute. REPRESENTATIVE MEYER said he opposes Conceptual Amendment 1 as being unnecessary and potentially causing problems further down the road. REPRESENTATIVE GRUENBERG sought clarification that the amendment would be conceptual in nature, and offered his belief that a conforming change, via that amendment, would also be in order on page 1, lines 4-5. REPRESENTATIVE GARA indicated that he would be amenable to having Conceptual Amendment 1 address that portion of the bill as well. REPRESENTATIVE ANDERSON mentioned that he doesn't see how Conceptual Amendment 1 could hurt the bill. REPRESENTATIVE GRUENBERG suggested that it could be problematic for the prosecution to have to prove that annoying or harassing another person is a main purpose for committing an activity, and said he is not sure how the courts would go about ranking purposes so as to determine whether a particular purpose was "a main purpose". He asked whether any other statute makes use of the term, "a main purpose" with regard to mental intent. MS. CARPENETI reiterated that the DOL must already prove beyond a reasonable doubt that when the photograph was published the person acted with the intent to annoy or harass; therefore, use of the term, "a main purpose" could create a problem for the prosecution. She indicated that she is unaware of any other statute that uses the term, "a main purpose" with regard to mental intent; specific intent crimes usually are with intent to cause a certain harm. REPRESENTATIVE GRUENBERG said he is concerned about forcing the jury to determine whether a purpose was a main purpose. MR. PAWLOWSKI reiterated his belief that if the photographs contain the elements listed in proposed AS 11.61.120(a)(6), it doesn't matter that the photographs were sent around as part of a joke; just because something could be viewed as a joke, and regardless of who the subject is, it shouldn't mean that the nature of the crime could be limited. REPRESENTATIVE ANDERSON used an example wherein a person gets charged with a crime even though the person had not meant to harass or annoy another person. CHAIR McGUIRE said she is concerned that layering on the term, "a main purpose", could result in sort of having a trial within a trial. Other aspects of the criminal code simply look at intent, she noted, without having a determination regarding the percentages that could be attributed to particular purposes. MS. CARPENETI said that under the harassment statute, the state has to prove that it was the actor's specific intent to annoy or harass, not that the subject was actually annoyed or harassed by the behavior. 1:52:40 PM A roll call vote was taken. Representatives Anderson and Gara voted in favor of Conceptual Amendment 1. Representatives McGuire, Coghill, Wilson, and Gruenberg voted against it. Therefore, Conceptual Amendment 1 failed by a vote of 2-4. REPRESENTATIVE GRUENBERG again expressed a desire to deal with the issues raised by the McKillop case. He asked Ms. Carpeneti whether she would like to have the issue of including an "intents or purposes" section addressed by the next committee of referral. MS. CARPENETI said she did not think so. 1:53:58 PM REPRESENTATIVE ANDERSON moved to report the proposed CS for HB 326, Version 24-LS1223\F, Luckhaupt, 1/26/06, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, [new] CSHB 326(JUD) was reported from the House Judiciary Standing Committee.
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