Legislature(2011 - 2012)CAPITOL 120
03/05/2012 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB173 | |
| HB359 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 173 | TELECONFERENCED | |
| *+ | HB 359 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 359 - SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE
1:25:18 PM
VICE CHAIR THOMPSON announced that the final order of business
would be HOUSE BILL NO. 359, "An Act relating to conspiracy to
commit human trafficking in the first degree or sex trafficking
in the first degree; relating to the crime of furnishing
indecent material to minors, the crime of online enticement of a
minor, the crime of prostitution, and the crime of sex
trafficking; relating to forfeiture of property used in
prostitution offenses; relating to sex offender registration;
relating to testimony by video conference; adding Rule 38.3,
Alaska Rules of Criminal Procedure; and providing for an
effective date."
1:26:11 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), explained
that the majority of HB 359 - [Sections 1, 2, 7-11, 14, 17-19,
21-24, and 27] - addresses changing the name of the crime of
promoting prostitution to the crime of sex trafficking; this
proposed name change applies to first, second, third, and fourth
degree crimes, would ensure that victims of sex traffickers are
viewed as victims rather than as prostitutes, and reflects
current law-enforcement vernacular. The other sections of the
bill, she proffered, reflect good public policy. Specifically,
Section 3 would add the class A felony crime of human
trafficking in the first degree and the class A and unclassified
felony crimes of sex trafficking in the first degree to
AS 11.31.120(h)(2), which outlines what constitutes a serious
felony offense under the statutes pertaining to the crime of
conspiracy, which [generally] warrants a felony charge one level
below that of the underlying felony offense. Section 4 would
narrow AS 11.61.128 - which pertains to the crime of
distribution of indecent material to minors - in response to a
federal district court ruling that the existing statute is
unconstitutionally overbroad; under Section 4, the state would
have to prove both that the person intentionally distributed, or
possessed with intent to distribute, prohibited material to
someone he/she knew or believed to be under 16 years of age, and
that the person knew the material depicted prohibited conduct.
REPRESENTATIVE HOLMES expressed favor with Section 4's proposed
change to AS 11.61.128, offering her recollection that the issue
of unconstitutionality was raised the last time the committee
addressed that statute.
MS. CARPENETI, in response to questions, relayed that
Section 4's proposed changes have been vetted; noted that a
letter from the American Civil Liberties Union of Alaska (ACLU
of Alaska) in members' packets doesn't express any concern with
Section 4; and offered her belief that the court's concern with
existing AS 11.61.128 is that a person could unwittingly violate
it. Section 4's proposed changes would ensure that that statute
applies only to those who intend to distribute materials in
knowing violation of the law.
MS. CARPENETI, in response to another question, clarified that
in addition to changing the name of the crime of promoting
prostitution to the crime of sex trafficking, Section 1 of
HB 359 would add to AS 04.06.110 - a provision in the statutes
pertaining to the Alcoholic Beverage Control Board ("ABC Board")
- a reference to the fourth degree crime, AS 11.66.135, which,
due to an oversight, she surmised, wasn't included in that
statute when the legislature first established that particular
crime back in 2007.
1:37:00 PM
MS. CARPENETI went on to explain that Sections 5 and 6 would
[together] raise the penalty for being the patron of a
prostitute who is under 18 years of age - from a class B
misdemeanor to a class C felony - and provide that the
prostitute's age is not a circumstance that requires proof of a
culpable mental state. In response to questions and comments,
she confirmed that under those provisions of the bill, it won't
matter what age the "patron" thinks his/her victim is;
furthermore, comments received from the Public Defender Agency
(PDA) indicate that perhaps Section 6 ought to be changed in
order to clarify that the proposed increase in penalty only
applies to the patron. Changing existing law as Sections 5 and
6 are proposing is one way of addressing people who prey on
children, and the point is to discourage such behavior, she
added, noting that up until as recently as 2007, it wasn't a
crime in Alaska to be the patron of a prostitute.
MS. CARPENETI then explained that Section 12 of HB 357 would add
the fourth degree crime - AS 11.66.135 - to the list of crimes
for which corroboration of certain testimony is not required;
this proposed conforming change, addressing another oversight,
would ensure that for all degrees of the crime of sex
trafficking, the victim's testimony regarding his/her
victimization need not be corroborated. Section 13 would add
the crime of prostitution - AS 11.66.100 - to the statute
stipulating that property used to institute, aid, or facilitate,
or property received or derived from, a violation of the law
shall be forfeited. In response to questions regarding what
kind of property could be subject to forfeiture under Section
13's proposed AS 11.66.145, she indicated that the state would
have to show a nexus between the property in question and the
crime.
REPRESENTATIVE HAWKER observed that Section 12's proposed
AS 11.66.140 references AS 11.66.110 - AS 11.66.135, whereas
Section 13's proposed AS 11.66.145 references AS 11.66.100 -
AS 11.66.135.
MS. CARPENETI acknowledged that perhaps the proposed references
in those two sections could be changed to mirror one another.
1:47:24 PM
MS. CARPENETI went on to explain that Section 16's proposed
addition of a new subsection (h) to AS 12.47.100 - one of the
provisions in Alaska's code of criminal procedure pertaining to
insanity and competency to stand trial - would allow, in the
pretrial hearing to determine a defendant's competency to stand
trial, testimony from a witness by contemporaneous two-way video
conference [in situations in which the witness would be required
to travel more than 50 miles to court, or lives in a place from
which people customarily travel by air to reach the court]. To
date, neither Alaska's courts nor the U.S. Supreme Court have
specifically addressed this issue, though courts in other
jurisdictions have and do allow for such testimony. The
rational for doing so, she relayed, is that competency hearings,
which, again, are pretrial proceedings, deal with issues that
don't have criminal penalties attached; furthermore, the
evidentiary standard used when determining competency is merely
that of a preponderance of the evidence - [the standard required
in most civil cases].
MS. CARPENETI opined that it makes practical sense to allow for
such testimony in jurisdictions that have the technology; under
Section 16, a psychiatrist at the Alaska Psychiatric Institute
(API), for example, could testify and be cross examined as if
he/she were in the courtroom. The potential issue raised by
Section 16, she remarked, is that of "confrontation" - whether
the proposed statutory change would still provide for a person's
constitutional rights to be confronted with the witnesses
against him/her, and the DOL believes that it would.
Furthermore, the courts have already held that competency
hearings are different from criminal trials and thus the full
panoply of constitutional rights associated with criminal trials
do not necessarily apply. However, she relayed, the
aforementioned letter from the ACLU of Alaska expresses
disagreement on that point.
MS. CARPENETI, in response to a question, offered her belief
that Section 16's proposed AS 12.47.100(h) would be upheld by
the court because it's discretionary in nature rather than
mandatory. Such testimony and subsequent cross examination
would be "almost face-to-face," she remarked, adding that
although Alaska's courts have held that "face-to-face" is very
important at trial, it's not necessarily that important at a
pretrial proceeding. She suggested that in its written comments
regarding Section 16, the ACLU of Alaska is perhaps confusing
the jurisprudence addressing trial issues with that addressing
pretrial issues. Again, under Section 16, it would be as if the
witness were in the courtroom with the defendant.
REPRESENTATIVE HOLMES observed that Section 16 is proposing to
define the term, "contemporaneous two-way video conference" as
used in proposed AS 12.47.100(h) as being a conference among
people at different places by means of transmitted audio and
video signals and includes all communication technologies that
allow two or more places to interact by two-way video and audio
transmissions simultaneously. She expressed concern regarding
the broadness of that definition - specifically it's use of the
phrase, "all communication technologies" - and with the
potential for the witness to be coached by someone off camera,
not visible to the court. The aforementioned letter from the
ACLU of Alaska, she noted, suggests some possible "sideboards"
to add to the bill; for example, changing the bill such that the
only person who would be allowed to be in the room with the
witness would be the audio/video-conference technician.
MS. CARPENETI noted that the issue of who shall be allowed in
the room with such a witness is addressed in Section 25, which
is proposing a direct court rule change to Rule 38 of the Alaska
Rules of Criminal Procedure. She expressed a willingness to add
language from Section 25 to Section 16 in order to address the
concern, such as the language which provides that either party
may object to having anyone else in the room other than the
witness and the audio/video-conference technician.
1:54:55 PM
MS. CARPENETI then explained that Section 20 of HB 357 would add
to AS 12.63.100(6) - which defines the term, "sex offense" for
purposes of requiring a person in Alaska to register as a sex
offender or child kidnapper - a new subparagraph (D) that would
additionally define a sex offense as being a crime in another
jurisdiction that requires the person to register as a sex
offender or child kidnapper in that other jurisdiction. The
DOL's position is that for the safety of Alaska citizens, if a
person who is physically present in Alaska is required to
register as a sex offender or child kidnapper in another
jurisdiction, he/she should also have to register in Alaska, at
least for the period of time during which he/she is required to
register in that other jurisdiction. That latter point could
perhaps be clarified further in the bill, she acknowledged, and
mentioned that the administration receives several calls every
month from sex offenders in other jurisdictions wanting to know
if they could avoid having to register as a sex offender if they
moved to Alaska. "We don't necessarily want to be the place
where people come so they don't have to register as a sex
offender," she added, but also acknowledged that sometimes
behavior constituting a sex offense in another jurisdiction
might not constitute one in Alaska.
REPRESENTATIVE HAWKER expressed disfavor with Section 20's
proposed change, specifically with the concept that under it,
the legislature would essentially be abrogating its policy-
making responsibilities to other jurisdictions with regard to
what behavior constitutes a sex offense in Alaska.
REPRESENTATIVE HOLMES concurred.
MS. CARPENETI acknowledged that point. In response to a
question, she indicated that certain crimes involving indecent
exposure, for example, might sometimes require a person to
register as a sex offender in another jurisdiction but not in
Alaska. No one, she asserted, wants Alaska to become the place
where sex offenders move so as not to have to register as sex
offenders.
2:01:25 PM
MS. CARPENETI then explained that Section 25, proposing a direct
court rule change to Rule 38 of the Alaska Rules of Criminal
Procedure via the addition of a new Rule 38.3, would allow
testimony from a witness by contemporaneous two-way video
conference at trial. She indicated that because of a person's
constitutional rights to be confronted with the witnesses
against him/her, such testimony [at trial] would only be allowed
in limited circumstances. "In very limited facts-specific
circumstances, this procedure has been upheld by the United
States Supreme Court in Maryland v. Craig, ... [which] dealt
with ... child witnesses," she added, and noted that currently
under Title 12, Alaska has a procedure addressing child
witnesses, allowing for one-way closed-circuit televising of
such witnesses when they are unable to face their abusers. The
proposed new court rule, however, provides for a different,
narrower, procedure, she acknowledged, one involving a
simultaneous two-way teleconference in which the witness - as if
he/she were in the courtroom - can see everyone and everyone can
see him/her, but for a particular reason he/she cannot be in the
courtroom. Under Section 25, such a witness would have to be
under oath and subject to cross examination, would have to be
"unavailable" as defined therein - for example, if he/she were
sick - and the use of his/her testimony must further an
important public policy. Use of this type of procedure, she
pointed out, was upheld by the [2nd Circuit Court of Appeals] in
United States v. Gigante; in that case, the witness was dying of
cancer, and his testimony was essential to the prosecution.
This type of procedure has also been approved in cases in which
the witness was out of the country or was otherwise unavailable
for process by the State of Alaska. The use of Section 25's
proposed procedure, she assured the committee, would be limited
to certain, narrow circumstances, decided on a case-by-case,
facts-specific basis.
2:06:26 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), referred first
to Section 16 - stipulating that in the pretrial hearing to
determine a defendant's competency to stand trial, testimony
from a witness by contemporaneous two-way video conference may
be allowed - and expressed concern that this provision of HB 359
would erode the reliability of the evidence the witness provides
and would be found unconstitutional. Although the issue of
competency isn't addressed in an actual criminal trial, the
determination regarding competency is fundamental to the case,
and many profound consequences flow from such a determination -
sometimes having a greater impact on the defendant than the
actual penalties associated with the underlying crime. In fact,
he opined, Section 16 would erode the reliability of the fact-
finding process in that it's much more difficult to conduct
cross examination when it's not done face-to-face.
MR. STEINER said that the reality is, and what history has
shown, and what the law relies upon, is the idea that [under
face-to-face cross examination], it's much harder for a witness
to persist in either false testimony or mistaken testimony or
testimony that is given to cover up work that hasn't actually
been done. Situations involving the latter type of testimony -
where experts have failed to do the work necessary to render a
valid opinion - are very significant in terms of competency
hearings because without the face-to-face confrontation and
face-to-face questioning during cross examination, there is a
risk that the court could draw an erroneous conclusion regarding
the person's competency. And although the courts in other
jurisdictions have differentiated between trial confrontation
and pretrial confrontation, Alaska's courts have not - instead
indicating strongly the value of confrontation in [both]
settings.
MR. STEINER referred then to Section 25 and relayed that there
are similar concerns with that provision of HB 359. Although
the U.S. Supreme Court, in Craig, has permitted what he termed a
"relaxation" of the right to confrontation under certain
circumstances, and the proposed new-court-rule language appears
to be crafted so as to comply with Craig, that language could be
construed to be broader then intended in the sense that the
provision doesn't also stipulate that the question of whether to
allow such testimony must be determined on a case-by-case basis
with an eye towards balancing the important public policies at
issue in any given case. Furthermore, Section 25 attempts to
define what would constitute a witness's being, "unavailable" in
three different ways, but none are tied to a finding of
furthering an important public policy - there is no requirement
that there be a nexus between the two - and so it's hard to
predict how the proposed new court rule would be applied,
thereby raising the risk that it could be challenged as being
unconstitutional. He mentioned that in Craig, the court does
discuss the consequences of eroding one's constitutional right
to confrontation, and suggested that a review of that discussion
could assist members in understanding the policy implications of
actual face-to-face confrontation.
2:11:55 PM
MR. STEINER referring then to Section 20 - proposing to
additionally defining the term, "sex offense", for purposes of
requiring a person in Alaska to register as a sex offender or
child kidnapper, as being a crime in another jurisdiction that
requires a person to register in that other jurisdiction - said
the concern with that provision of HB 359 is that it could
include conduct not currently considered "criminal" in Alaska or
conduct that has already been determined in Alaska as not
warranting registration. Furthermore, under Section 20, whether
particular conduct would constitute an offense for purposes of
also registering in Alaska could change from year to year if the
laws in those other jurisdictions change, and such changes could
be hard to keep track of.
MR. STEINER, in response to questions, offered his belief that
Section 4 would address the constitutional concerns raised by
existing law regarding the crime of distribution of indecent
material to minors - AS 11.61.110 - in that it requires specific
intent regarding the distribution, and knowledge regarding the
age of the child; and indicated that Sections 5 and 6 - together
raising the penalty for being the "patron" of a prostitute who
is under 18 years of age from a class B misdemeanor to a class C
felony - are enforceable regardless that the statute pertaining
to prostitution [doesn't currently provide] for an affirmative
defense regarding a reasonable mistake as to the age of the
victim, because the underlying behavior - offering a fee in
return for sexual conduct - is already illegal regardless of the
victim's age.
2:17:55 PM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), explained that he's submitted
written testimony to the committee outlining the ACLU of
Alaska's concerns with [Sections 16, 20, and 25 of] HB 359.
With regard to Section 16 - stipulating that in a pretrial
hearing to determine a defendant's competency to stand trial,
testimony from a witness by contemporaneous two-way video
conference may be allowed - he additionally pointed out that if
there are unique circumstances in a particular case, the court
already has the authority to provide for such testimony.
Because competency hearings have significant consequences that
attach to findings of competency, the ACLU of Alaska contends
that the statutory default should always be that an individual's
rights are protected to the greatest extent possible.
Furthermore, the ACLU of Alaska has not been able to find any
cases in which the court specifically differentiates between
pretrial competency hearings and actual trials with regard to
witnesses' testimony. In conclusion, he urged the committee to
either seek a more narrow solution to the perceived problem or
leave the pertinent statute as is; again, the court already has
the authority to provide for testimony by contemporaneous two-
way video conference.
2:20:35 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said simply that the DPS supports HB 359.
2:21:01 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System (ACS),
mentioning that the ACS takes no position on HB 359, explained
that the ACS's indeterminate fiscal note reflects that Sections
16 and 25 may have some fiscal impact on the ACS, though the ACS
doesn't view those provisions as either requiring the court to
install audio/video-conference equipment capable of meeting the
specifics outlined in Section 25, or requiring the court to
provide such equipment outside the courtroom to potential
witnesses.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony, and relayed that HB 359
would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 173 Request.pdf |
HJUD 3/5/2012 1:00:00 PM |
SB 173 |
| SB0173-1-2-020312-LAW-N.pdf |
HJUD 3/5/2012 1:00:00 PM |
SB 173 |
| SB 173 Sectional Analysis.pdf |
HJUD 3/5/2012 1:00:00 PM |
SB 173 |
| HB 359 Request Governor.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB 359 Sectional.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| SB0173A.pdf |
HJUD 3/5/2012 1:00:00 PM |
SB 173 |
| SB 173 Repealed statute.pdf |
HJUD 3/5/2012 1:00:00 PM |
SB 173 |
| HB359-ACS-TRC-2-28-2012.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB0359A.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| Maryland v Sandra Ann Craig.pdf |
HJUD 3/5/2012 1:00:00 PM |
|
| Nguyen v Garcia.pdf |
HJUD 3/5/2012 1:00:00 PM |
|
| Reutter v. State of Alaska.pdf |
HJUD 3/5/2012 1:00:00 PM |
|
| US v Burhoe.pdf |
HJUD 3/5/2012 1:00:00 PM |
|
| US v Gigante.pdf |
HJUD 3/5/2012 1:00:00 PM |
|
| HB 359 ACLU Review 2012 03 04.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB0359-1-2-022212-LAW-N.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB0359-5-2-022212-COR-Y.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB0359-3-2-022212-ADM-Y.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB0359-4-2-022212-ADM-Y.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB0359-6-2-022212-DPS-Y.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |
| HB0359-2-2-022212-DPS-N.pdf |
HJUD 3/5/2012 1:00:00 PM |
HB 359 |