Legislature(2001 - 2002)
04/09/2002 01:34 PM Senate TRA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 405-CRIMES ON OR AGAINST STATE VESSELS/PLANES
REPRESENTATIVE KEVIN MEYER, sponsor of HB 405, gave the following
summary of the legislation.
HB 405 gives the state jurisdiction over our state
owned watercraft including our watercraft that is
outside of state waters.
Recently a Superior Court judge dismissed the
prosecution for a sexual assault that occurred on one
of our Alaska state-owned ferries while it was in
Canadian waters.
Last year a young woman who was only 16 years old was
sexually assaulted while she was on the Alaska ferry,
Matanuska, en route from Seattle to Ketchikan. The
ferry was in Canadian waters at the time of the
assault. The district attorney in Ketchikan presented
the case to the grand jury there, and the grand jury
returned an indictment of one count of sexual assault
in the first degree, one count of sexual assault in the
second degree, and four counts of misdemeanor assault.
Unfortunately, Mr. Chairman, the court found that there
was no statutory authority for the State of Alaska to
prosecute the crime even though the victim was an
Alaskan on an Alaska-owned state ferry. Under federal
maritime law, the United States Government has
jurisdiction over crimes committed on United States
vessels in Canadian waters but the dismissal by the
state court is a concern because the client is unlikely
to be prosecuted by the federal government and
certainly is of very little interest to the Canadian
government. The federal government does not generally
prosecute offenses such as sexual assault and the
Canadian government has little interest in pursuing
this since it was a state-owned ferry and it was an
Alaska victim that it occurred to on the Alaska ferry.
I believe, Mr. Chairman, that it's prudent that we pass
a law that specifically will give the State of Alaska
the power to prosecute cases like this one and to
protect and defend our passengers on our state-owned
ferry system. Unfortunately this is not an isolated
incident and it is not going to go away. Just as
recently as December, four months ago, an intoxicated
passenger attacked two crewmembers on one of our
ferries with a vodka bottle and caused some minor
injuries. The passenger - and charges were filed
against this passenger - but the passenger has filed a
motion to dismiss the case based upon the sexual
assault that was dismissed last summer. Again, this
occurred in Canadian waters en route between Prince
Rupert and Ketchikan.
This bill is a very simple bill. It's a simple solution
to a very serious problem. What we have here is a
loophole in our law. The bottom line is that if the
Canadians won't and don't want to prosecute criminal
activity that occurs on state-owned vessels in Canadian
waters and the federal government doesn't have the time
or doesn't want to prosecute, then the State of Alaska
should at least have the option to do so if we so
desire. That, Mr. Chairman, is the just of the bill.
SENATOR WARD asked the name of the judge in Ketchikan who made
the ruling.
REPRESENTATIVE MEYER told members that this case was brought to
his attention by the Department of Law. He deferred to Ms.
Carpeneti for details of the case.
MS. ANNE CARPENETI, Assistant Attorney General, informed members
that Judge Weeks made the decision but said there is reason for
his decision. She noted that although the Department of Law is
appealing the decision, the most prudent approach is to pass a
statute, which Judge Weeks suggested in his decision.
SENATOR WARD asked if both the victim and the alleged offender
are American and Alaska citizens.
MS. CARPENETI said the victim is an American who lives in the
Anchorage area. Ms. Carpeneti said she believes she is an Alaska
resident. The defendant is an American citizen and she was not
sure what state he is a resident of.
SENATOR WARD asked what charge the defendant was extradited on.
MS. CARPENETI said she did not know as he was extradited on
charges brought in another state. She offered to get Senator Ward
more information on the extradition charge. She added that the
defendant was extradited in Alaska on this charge.
SENATOR WARD stated, "He was indicted on this charge, but yet the
judge ruled that he couldn't be indicted on this charge because
there was no law for it?"
MS. CARPENETI explained the ruling stated that crimes and
jurisdiction over crimes in Alaska are dictated by statute;
Alaska does not have common law crimes anymore. Alaska's
jurisdictional statute allows the state to prosecute crimes
committed in its territory or committed outside of the territory
when the effect is consummated in our state. This particular
offense was committed outside of Alaska's territory and the harm
occurred outside of its territory. For that reason, the judge
ruled that the state does not have jurisdiction.
SENATOR WARD asked if a sexual assault occurred in a state-owned
military airplane while flying over Canada's airspace and the
victim and offender were American citizens, whether Alaska would
have jurisdiction.
MS. CARPENETI said this bill does not address that issue and that
state airplanes generally operate in state airspace.
SENATOR WARD said he was referring to a state-owned military
airplane that legally travels outside of state airspace.
MS. CARPENETI said it would depend on the circumstances. She
remarked, "I'm sure they would be breaking somebody's law. They
would probably be breaking federal law and they would probably be
breaking the law if it's a sexual assault of the territory in
which it happened - in the airspace where it happened."
SENATOR WARD asked, "And it's this judge's opinion that the law
wasn't broken because there was no law on it?"
MS. CARPENETI replied that Judge Weeks did not express an opinion
on the particular offense. His decision was not based on his
opinion that a law hadn't been broken but instead that the state
needs a statute on which to base the state's authority to
prosecute the case because it occurred outside of Alaska
territory.
SENATOR WARD asked, "So if, in fact, this hypothetical airplane I
just described was flying outside of Alaska airspace into
Canadian airspace and this sexual assault had occurred, would
there not be any law to bring charges in that situation?"
MS. CARPENETI asked Senator Ward if he was referring to State of
Alaska law or Canadian law.
SENATOR WARD said Alaska law.
MS. CARPENETI said that first of all, federal law would probably
apply.
SENATOR WARD asked if federal law would apply to the case on the
ferry.
MS. CARPENETI said yes, the federal government has jurisdiction
on United States flag vessels but, generally, the federal
government does not pursue cases like this on ferries. It tends
to pursue cases on airplanes.
REPRESENTATIVE MEYER commented that it seems when something
happens on an airplane, the federal government is right there to
prosecute. However, since the ferry system is state-owned, the
federal government does not seem to have the same level of
interest.
CHAIRMAN COWDERY asked about cruise ships or privately owned
ferry systems.
MS. CARPENETI said the jurisdictional theory that this bill is
based on is that a state-owned vessel, "has enough connections -
is kind of like a piece of Alaska traveling through international
waters." She assumed a vessel owned by another private entity
traveling in Canadian waters would turn into the next port in
Canada and report the crime there. It is much more difficult for
an Alaska ferry to go off course and off schedule and travel to a
port that may not be able to accommodate the vessel.
SENATOR TAYLOR said a different Ketchikan Superior Court judge
found jurisdiction in a previous case and convicted someone
traveling on the Alaska ferry in Canadian waters.
MS. CARPENETI said she believes Senator Taylor is correct.
SENATOR TAYLOR said that is why this decision was considered to
be unique or aberrant to the extent that probably no one has
aggressively raised the defense before.
TAPE 02-14, SIDE B
SENATOR TAYLOR asked why the legislation is limited to ferries.
He questioned whether federal jurisdiction extends to foreign
flag vessels bringing tourists to Juneau from Vancouver, B.C.
MS. CARPENETI said she believes the state could prosecute a crime
against a state law on such a vessel if the crime occurred while
the vessel was in Alaska territory. The Canadian government would
have jurisdiction if the vessel was in Canadian waters. She added
the flag of the ship would have jurisdiction no matter where the
ship is. The United States government has prosecuted crimes that
occurred on U.S. flagships traveling on rivers in Africa. She
assumed the Washington authorities could prosecute a crime that
happened between Bellingham and Canada.
SENATOR TAYLOR said he gets confused about the jurisdictional
questions because it is almost frightening to think about an
incident occurring to a tourist on a boat registered in the
Seychelles. He noted that Dixon Entrance is a large gray zone as
far as whether Canada or the United States has jurisdiction. He
stated:
You could very easily be dealing with two different
foreign nationals involved. You might have a crewmember
that's perpetrated a crime and the crew member is from
Italy maybe, and the victim is from Mexico. I think
that all becomes very confusing. I think at least as
far as our state-owned vessels we ought to have some
continuity and I'm assuming that your department
supports this legislation.
MS. CARPENETI said the department does support the legislation.
SENATOR TAYLOR asked if there is any reason to not consider
aircraft in the legislation. He said the Departments of Public
Safety and Fish and Game have an aircraft fleet of somewhere
between 46 and 52 and that any aircraft flying three miles
offshore is in international airspace.
MS. CARPENETI replied that most state aircraft operate in the
state but she can understand the desire to include state-owned
aircraft traveling outside the state. The problem, in terms of
vessels, for the Department of Law has not necessarily been with
crimes that have occurred in international waters because Alaska
has a statute that says where the federal government can exercise
jurisdiction, the state can also. That has allowed the state to
prosecute under Alaska's theft statutes. The issues generally
deal with due process - whether it is fair for the state to
exercise jurisdiction under the circumstances with the connection
between Alaska and the offense. She added that a state-owned
aircraft would probably be similar to a state-owned ferry.
SENATOR WARD asked, regarding the previous conviction that
Senator Taylor referred to, if that person would be able to file
for an appeal to get out of prison if this bill passes.
MS. CARPENETI said she does not believe so because this bill will
give the state jurisdiction to prosecute.
SENATOR WARD asked if passage of this bill could set up an
argument that the person convicted of rape was not convicted
legally because the state did not have jurisdiction.
MS. CARPENETI said she does not believe so because she believes
this legislation makes explicit a position taken in the lower
court.
SENATOR TAYLOR noted the case is on appeal and a decision will be
made eventually by Alaska's Supreme Court as to whether or not
Judge Weeks was correct in denying jurisdiction to our state in
those waters. If the Supreme Court decides the state had
jurisdiction all along and Judge Weeks was wrong, then the man
convicted in Ketchikan was justly convicted and there would be no
problem. However, if the Supreme Court says Judge Weeks was
correct, the state did not have jurisdiction, the convicted man
would have some right to appeal that conviction. Enacting this
law, confirming or reasserting the state's jurisdiction, will
only be effective from that date forward anyway but it would not
play upon the earlier case because it is not a negative - it
doesn't say the state did not have jurisdiction, it further
asserts the state did have jurisdiction. He commented that he
does not want to see the case on appeal dropped if this law is
enacted.
MS. CARPENETI stated the Department of Law is pursuing the
appeal.
There being no further testimony or questions, SENATOR WARD moved
HB 405 from committee with individual recommendations.
CHAIRMAN COWDERY announced that without objection, the motion
carried. With no further business to come before the committee,
he adjourned the meeting at 2:30 p.m.
| Document Name | Date/Time | Subjects |
|---|