Legislature(2005 - 2006)BUTROVICH 205
04/12/2005 08:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB20 | |
| SB128 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 20 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 128 | ||
SB 20-OFFENSES AGAINST UNBORN CHILDREN
8:49:02 AM
SENATOR FRED DYSON continued his introduction of SB 20. He
presented a committee substitute (CS), which he referred to as
Version \C. He said the issue in the previous meeting, when can
a mother be charged, is solved by changing the standard to
"recklessly." Under criminal law, a person acts recklessly when
they are aware of and consciously disregard a substantial risk
where the result would be a gross deviation from what a
reasonable person would do.
8:51:31 AM
MR. WES KELLER, staff to Senator Dyson, explained what has been
added is "reckless means by a dangerous instrument."
8:52:36 AM
CHAIR SEEKINS asked Senator Dyson for a definition of dangerous
instrument.
MR. KELLER explained it is defined in AS 11.81.900 as "any
deadly weapon or anything that, under the circumstances in which
it is used, attempted to be used, or threatened to be used, is
capable of causing death or serious physical injury."
CHAIR SEEKINS asked whether that could include fist or feet.
MR. KELLER said according to the Department of Law (DOL), yes.
8:53:58 AM
SENATOR DYSON explained Page 4 narrows the meaning of physical
injury. Line 7 adds the complication of birth weight for
premature births.
CHAIR SEEKINS inquired on the conversion of 2,500 grams to
pounds.
SENATOR GUESS commented 2,500 grams was approximately 5 pounds.
SENATOR DYSON further explained Page 4; lines 9-15 of the CS add
"controlled substance", "addicted infant", and "clear case of
fetal alcohol syndrome" (FAS). Since the CS was drafted, the DOL
suggested adding a definition of FAS.
8:56:01 AM
SENATOR THERRIAULT asked for clarification on who would get
charged in the case of FAS.
SENATOR DYSON responded the woman would get charged. He said it
was a policy decision to not totally excuse the mother for
reckless actions taken against the unborn child.
8:57:37 AM
MR. KELLER pointed out a drafting error in the CS. Page 4; line
6 should be the word "additionally" after the word "includes",
which expands the definition of "serious physical injury." Page
4 line 15 delete the word "and" and insert the word "or".
8:59:45 AM
SENATOR FRENCH said he does not see a causation element in
subsection 1, lines 7-8.
CHAIR SEEKINS commented there were many things that would cause
a child to be born under 2,500 grams.
9:02:02 AM
CHAIR SEEKINS noted the problem could easily be corrected.
SENATOR FRENCH expressed he needs to know from a doctor the acts
that might produce a premature birth.
MR. KELLER stated the causal part is in the term "recklessly."
CHAIR SEEKINS noted there could be many natural causes for a
premature birth not induced by reckless acts.
9:04:24 AM
SENATOR GUESS noted Page 4 line 7 seems out of place. She
inquired as to why it was included.
SENATOR DYSON responded the definition of a premature child is
modified in a multiple birth. He wanted to make sure if it is a
multiple birth situation that someone doesn't get charged.
SENATOR GUESS disputed the definition of premature.
9:06:11 AM
CHAIR SEEKINS voiced his support of the concept that someone who
causes a miscarriage by a reckless act should not walk free.
9:07:46 AM
SENATOR THERRIAULT asked Senator Dyson whether SB 20 would apply
to a woman who puts herself into a questionable situation.
SENATOR DYSON responded it would have to be knowingly and
recklessly.
SENATOR GUESS said reckless is "aware of and consciously
disregards a substantial and unjustifiable risk". She said the
district attorney would decide and it wouldn't necessarily be
clear whether or not a situation was reckless.
9:09:06 AM
SENATOR GUESS stated with the language in SB 20, a person could
easily prosecute a woman for not adhering to bed rest by
claiming she demonstrated reckless behavior.
CHAIR SEEKINS said Senator Guess would have demonstrated
reckless behavior if she had gone on a roller coaster when she
was ordered bed rest by her doctor.
SENATOR GUESS agreed and said that would also be true if she was
up an hour more than ordered during the day. She noted the
sponsor probably does not intend to criminalize all premature
births, but the law can be interpreted that way.
SENATOR DYSON said that is why the DOL added dangerous
instrument.
9:10:45 AM
CHAIR SEEKINS reviewed the proposed changes with the committee.
SENATOR FRENCH suggested taking the words "purposeful act" out.
SENATOR GUESS concurred.
Chair Seekins announced a short recess at 9:13:31 AM.
Chair Seekins reconvened the meeting at 9:22:57 AM.
CHAIR SEEKINS voiced his primary concern lies on page 4 lines 5-
8 where the topic for discussion is huge. He shared his personal
experience with his first son who was born one ounce over the
proposed 2,500 grams limit. He said the state should hold
someone accountable for substance abuse regardless of the birth
weight.
9:24:16 AM
SENATOR DYSON said adding the multiple birth section protects
the mother from being charged. He agreed the 37 weeks and the
birth weight issue needs more research. He expressed concern
that FAS is clear medically, but fetal alcohol effects (FAE) are
not.
9:26:04 AM
SENATOR HUGGINS moved to adopt Version \C as the working
document.
SENATOR DYSON stated it would be helpful to make the conceptual
amendments that were mentioned earlier.
SENATOR GUESS moved conceptual amendment 1. Hearing no
objections, the motion carried.
9:28:42 AM
SENATOR GUESS asked the committee members to consider the case
in multiple births where there are selection choices. The
current language of SB 20 would allow for penalizing women who
choose not to have a child who has been determined in utero to
have cerebral palsy. This could happen more often as technology
moves forward.
Chair Seekins called Ms. Anne Carpeneti to answer questions.
9:32:04 AM
SENATOR FRENCH asked Ms. Carpeneti to explain sentencing of a
drunk driver who kills a woman who is 2 weeks pregnant.
Ms. ANNE CARPENETI cited, AS 12.55.127 requires consecutive
terms. Currently, murder 2 is a mandatory minimum of 20 years
for a child and 10 years for an adult.
9:35:44 AM
SENATOR GUESS asked Ms. Carpeneti if SB 20 becomes law would
there be remedy in civil court.
MS.CARPENETI hesitated to advise the committee on civil
liability. She stated an act that is a crime generally could be
a basis for civil liability.
9:37:33 AM
MS. BRENDA STANFILL testified she shared SB 20 with 28 women who
all expressed concern that there are a lot of unintended
consequences. In our society we often hear, "Why does she stay?"
Very seldom do we hear, "Why does he continue beating her?" The
committee should not pass a bill that allows prosecutors to
prosecute women who they perceive as choosing to live in a
domestic violence situation.
9:39:49 AM
MS. STANFILL wondered whether doctors would have to report all
miscarriages and stillborn deaths, and whether there would be an
investigation. She asked about women who will not seek medical
care for fear of being charged of a crime, and of those who
cannot access prenatal care. She suggested the committee explore
using sentencing aggravators instead of passing SB 20.
9:41:09 AM
MS. MEGAN GUYHAN testified in opposition of SB 20 and stated it
completely bypasses the primary victim. If society would focus
on keeping the woman safe it would also keep the fetus safe. In
abusive situations, many women are hesitant to seek medical
attention if they feel the abuser will be charged with homicide.
Perpetrators will prevent women from seeking medical attention
knowing they could be prosecuted. She said Alaska's rates of
assault on women are far too high.
9:43:02 AM
MS. MICHELE DEWITT echoed the comments of previous testifiers.
She expressed concern with the words, "means of a dangerous
instrument" and the discussion by the committee of what may or
may not be prosecuted. She claimed there is a lot of discretion
by prosecutors and if SB 20 were to pass it would be impossible
to know what will and will not be prosecuted. SB 20 does not
address the crime of violence against women.
9:45:12 AM
MS. JANELE HAFNER testified the creation of a separate criminal
offense regarding violence against women is redundant. SB 20
introduces legally unsound principles. It rests on legislative
adoption of medically inaccurate and misleading terminology and
ultimately places Alaska on a collision course with basic tenets
of Alaska Constitutional Law. SB 20 does not decrease the number
of pregnant women being assaulted. Statutory aggravators serve
as a far more appropriate remedy in punishing violent acts. They
serve as a better utilization of state resources. They alleviate
the problems with prosecutorial discretion and the proof
problems written in SB 20. She suggested the committee increase
domestic violence spending across the board, offer greater
access to prenatal care and improve and expand women's access to
educational, social and health programs.
9:47:13 AM
SENATOR HUGGINS asked Ms. Hafner to elaborate on constitutional
collision.
MS. HAFNER stated many constitutional and legal problems that
are addressed in SB 20 are not raised until legally challenged.
She said she believes SB 20 is subject to a legal challenge. She
asserted she is speaking on behalf of herself and not speaking
on behalf of the DOL. The U.S. Supreme court has ruled that a
woman has a right to terminate pregnancy and the state cannot
interfere.
Ms. Hafner said:
The state creates legal personhood while
simultaneously stating it's homicide and assault for
an individual to perpetrate acts, which cut that
short. It seems somewhat unbelievable to me that you
can then exempt a woman, who undergoes a legal
abortion. You're essentially allowing a woman to
consent to murder or to consent to an assault on her
fetus, which conflicts with the very idea of a
protected choice under the constitution. So I think
that's fairly problematic.
9:49:25 AM
CHAIR SEEKINS:
I don't agree with that concept. I think this bill has
protected a woman's so called constitutional rights,
but it doesn't allow anyone else to kill that child.
MS. HAFNER respectfully disagreed and stated SB 20 creates a
legal conundrum. The safest, easiest, and most effective
approach is to commit resources to statutory aggravators, which
don't carry the same legal threats.
SENATOR HUGGINS asked Ms. Hafner whether she is concerned about
newly born children affected by drugs and alcohol.
MS. HAFNER answered yes. She said she is not supportive of any
provisions in SB 20 that serve as punitive measures for a
pregnant woman. It is more appropriate to remedy and alleviate
the underlying causes rather than to punish pregnant women for
their conduct.
SENATOR HUGGINS asked Ms. Hafner whether she was advocating for
no accountability for the mother in the case of FAS or drug
addiction at birth.
9:51:14 AM
MS. HAFNER responded from a social standpoint, resources are
better spent remedying the problem than punishing behavior after
it exists. She said if we are all generally concerned with the
prevalence of FAS across the state, we can agree on a common
approach, which is targeting it before the circumstances which
give rise to a woman's drinking exists.
SENATOR FRENCH commented Ms. Hafner had a good point. He said
there might be legal accountability short of punitive measures.
CHAIR SEEKINS commented he has no tolerance for violence against
anyone born or unborn. He voiced his feelings that FAS is the
result of abuse and that someone should be held accountable.
9:54:05 AM
MS. KATE BERKHART testified the intent of SB 20 is laudable
although she does not support it. She agreed with Senator
Seekins statements regarding holding people accountable. She
th
stated a violent crime against a woman is assault in the 4
degree, which is a misdemeanor but a violent crime against a
pregnant woman would be a felony. SB 20 says the pregnancy is
more important than the woman who is pregnant. She suggested
Alaska would be better served by using sentencing aggravators.
9:58:28 AM
MS. ROBIN SMITH testified in opposition to SB 20. She expressed
concerned with the concept of reckless behavior. Alcoholism is a
disease. Pregnant alcoholics may not be able to make the choice
to act appropriately while carrying. There is a proven genetic
predisposition to alcoholism. Young women who are afraid of
being prosecuted would not seek prenatal care.
10:00:57 AM
MS. SMITH added if SB 20 becomes law she might encourage a
drinking pregnant woman to have an abortion so as to avoid
prosecution.
10:02:39 AM
SENATOR HUGGINS asked Ms. Smith for her idea of a solution.
MS. SMITH stated she does not understand why the Legislature is
cutting programs from the budget that assist women. She
suggested the state work on prevention.
10:05:00 AM
MS. SMITH pondered whether the numbers have really changed.
SENATOR GUESS commented to the committee members there is a wait
list in Anchorage for alcoholic treatment for pregnant women.
She expressed this should be a priority. Senator Dyson testified
it is currently unknown how and when alcohol begins to affect a
fetus.
10:09:20 AM
MS. CAREN ROBINSON, Alaska Women's Lobby, testified in
opposition to SB 20 stating the focus must be shifted back to
the women. The focus should be on dangers to the pregnant woman.
There is a simple way to accomplish extra protection for a
pregnant woman and that is with sentencing aggravators. She
asked the committee to make sure they understand each level of
SB 20. On behalf of the network and agency programs across the
state, she offered to brief the Senate Judiciary Standing
Committee on the programs they are working on in Alaska.
10:13:42 AM
MS. ROBINSON responded to Senator Huggins' comment that a fetus
can't defend itself. She said sometimes it is hard for a woman
to defend herself.
10:15:31 AM
MS. TESSA BEETLE testified in support of SB 20.
MS. MATTIE NOLAN testified in support of SB 20.
10:18:06 AM
MS. KATHY GIRARD testified on the behalf of Sherry Goll,
principal of Pacific Solutions, and read her letter of
opposition. Her letter reiterated previous testimony.
10:20:59 AM
CHAIR SEEKINS announced the end of public testimony. He asked
Ms. Carpeneti whether the state would have to prove reckless
behavior and use of a dangerous instrument in the case of a low
birth rate.
MS.CARPENETI responded the most recent draft on page 3 lines 22-
23 do not require a dangerous instrument.
10:25:41 AM
CHAIR SEEKINS announced SB 20 would be held over.
SENATOR FRENCH offered an amendment for the members of the
committee to consider.
| Document Name | Date/Time | Subjects |
|---|