Legislature(2005 - 2006)BELTZ 211
03/15/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB88 | |
| SB54 | |
| SB20 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 54 | ||
| = | SB 88 | ||
| = | SB 20 | ||
SB 20-OFFENSES AGAINST UNBORN CHILDREN
4:08:03 PM
CHAIR GENE THERRIAULT announced SB 20 to be up for consideration
and noted a proposed Senate State Affairs committee substitute
(CS).
SENATOR FRED DYSON explained that the CS simplifies the bill in
that it includes just two classifications of assault against an
unborn child rather than four, which makes it consistent with
other assault statutes and doesn't create new assault
categories.
It makes it clear that criminal intent to assault is transferred
to a second victim even if you are unaware that a second victim
is present. In addition it addresses the inconsistency of
exempting a mother who harms her unborn child.
4:12:20 PM
WES KELLER, staff to Senator Dyson, said he was available for
questions.
Chair THERRIAULT asked for a motion to adopt the proposed CS.
SENATOR THOMAS WAGONER motioned to adopt \X version CS for SB 20
as the working document. There being no objection, it was so
ordered.
CHAIR THERRIAULT said although he understands removing the
sections related to a woman's self-inflicted destruction, it
seems to be an entirely different policy debate. He questioned
whether that would include drinking and taking drugs.
MR. KELLER said they removed the language because it potentially
exempted the woman from criminal activity that harmed the unborn
child. However, if there is a way to specifically spell out the
concerns regarding fetal alcohol syndrome (FAS) and/or fetal
alcohol effect (FAE) he was sure that the sponsor would welcome
any suggestions.
CHAIR THERRIAULT said he understands that excluding the mother
might be illogical, but of greater concern is that the bill
lacks clarity for how to respond to those issues.
SENATOR DYSON replied he intends to work on that issue in the
Judiciary Committee in particular. He suggested that Ms.
Carpeneti might help the committee determine what level of self-
inflicted action might trigger a charge of assault on an unborn
child.
CHAIR THERRIAULT restated the question for Ms. Carpeneti and
informed members that the section under discussion was on page
3.
4:16:55 PM
ANNIE CARPENETI, Criminal Division, Department of Law (DOL),
said she wasn't sure you could prove beyond a reasonable doubt
that drinking too much during pregnancy would be a crime under
assault in the second degree. You'd have to look at the
definition of serious physical injury.
CHAIR THERRIAULT read from AS 11.81.900:
(56) "serious physical injury" means
(A) physical injury caused by an act performed
under circumstances that create a substantial risk of
death; or
(B) physical injury that causes serious and
protracted disfigurement, protracted impairment of
health, protracted loss or impairment of the function
of a body member or organ, or that unlawfully
terminates a pregnancy;
He suggested that under (B) FAS/FAE might well qualify.
MS. CARPENETI replied it's a possible application if the person
knew the risks of drinking and consciously disregarded them.
CHAIR THERRIAULT said warnings not to drink during pregnancy are
posted in all drinking establishments so notice has been given
to the general public, but whether the person took notice could
be a question.
SENATOR KIM ELTON referenced the language at the top of page 4
that gives another meaning to "serious physical injury" and
"includes the birth of an unborn child before 37 weeks gestation
if the child weighs 2,500 grams or less at the time of birth."
If that provision is added to serious physical assault, you open
all sorts of questions about whether or not the mother's
behavior resulted in serious physical injury if that includes
birth weight of less than 5.5 pounds.
MS. CARPENETI said that definition is quite specific and you'd
probably want to get supporting medical evidence if the
provision is included in the bill.
CHAIR THERRIAULT remarked he views the language in the CS as
additive rather than limiting.
SENATOR ELTON said if you have 2,500 grams as an early birth
standard, and if a pregnant woman is confined to bed on the
advice of a medical doctor, and if the child is born early and
weighs less than 2,500 grams, somebody would have to make a
legal determination on whether the mother assaulted the child if
she violated the doctor's bed rest order.
MS. CARPENETI said that could be a possibility. You'd still have
to prove the culpable mental state and that would depend on the
facts regarding how badly she disregarded the doctor's orders.
CHAIR THERRIAULT said the language exempting the mother was
removed because of a question Senator Elton posed and to
additionally remove this language brings on a number of policy
calls that he wasn't sure the sponsor was prepared to take on at
this time.
SENATOR ELTON replied he simply asked a series of questions that
showed anomalies in the bill that would have legal
ramifications. He was bothered by the notion that an action a
mother might take pre-birth would be exempted from criminal
statute yet the mother wouldn't be exempted post birth. Clearly
the suggested fix brings up other legal issues and raises other
questions.
4:25:16 PM
CHAIR THERRIAULT asked Ms. Carpeneti if she had anything else to
add.
MS. CARPENETI said no, but it does require further study. She
asked the sponsor to think about the fact that some defenses to
murder are included in the bill, but she wasn't sure why several
others weren't adopted in the bill. She told the sponsor the
department would be happy to work with him and advised members
that the administration supports the idea of the bill.
4:26:59 PM
MR. KELLER stated for the record that if you were to look at the
definition in law of "knowing or reckless" it would be difficult
to get a conviction for second degree assault if a pregnant
woman violated a medical order for bed rest.
SENATOR ELTON referenced language on page 3, line 21 and pointed
out that the language talks about "recklessly" but it doesn't
connect it to "knowingly".
4:28:27 PM
MR. KELLER read the following from AS 11.81.900 into the record:
(3) a person acts "recklessly" with respect to a
result or to a circumstance described by a provision
of law defining an offense when the person is aware of
and consciously disregards a substantial and
unjustifiable risk that the result will occur or that
the circumstance exists; the risk must be of such a
nature and degree that disregard of it constitutes a
gross deviation from the standard of conduct that a
reasonable person would observe in the situation; a
person who is unaware of a risk of which the person
would have been aware had that person not been
intoxicated acts recklessly with respect to that risk;
SENATOR ELTON responded if a person were to follow the precepts
of her religion rather than the legal responsibilities that
would accrue under the provisions of SB 20, it would be reckless
behavior.
4:30:16 PM
MR. KELLER countered it would be an issue for the court to
determine.
CHAIR THERRIAULT opened teleconference testimony.
4:31:26 PM
REBECCA WHITMAN said she works for the national non-profit,
Family Violence Prevention Fund. She stated concern about the
impact of SB 20 on victims of domestic violence.
CHAIR THERRIAULT asked how much of her concern would be
mitigated by the fact that a woman cannot be forced to testify
against her husband.
MS. WHITMAN replied a greater concern is that a woman might be
afraid to seek medical care because of something that is
happening in the relationship.
4:34:07 PM
MOLLY MCCAMMON, board chair, Planned Parenthood of Alaska,
reported that Planned Parenthood agrees that the loss of a
wanted pregnancy as a result of an act of violence is a tragic
event and that the perpetrators of such crimes need to answer
for the woman's loss. That being said, Planned Parenthood cannot
support the bill as written. Specifically, the bill doesn't
address the criminal penalties for violence against women -
whether they are pregnant or not - yet it does threaten a
woman's reproductive choice. She suggested a better approach
would be to strengthen Alaska's laws against harming pregnant
women rather than laying the foundation for giving separate
legal rights to embryos and fetuses.
4:37:29 PM
CASSANDRA JOHNSON testified that between 1990-2002 she worked
with victims of gender violence and that she could not support
SB 20 or the changes made in the CS.
She reported that since the late 1970s Alaska has been in the
top five states for reported sexual assaults and in 2002 Alaska
led the nation in women killed by a significant other. Neither
is a distinction that anyone wants to continue. She emphasized
that injury to a fetus is first and foremost an injury to a
pregnant woman and SB 20 doesn't deal with that issue.
Protecting pregnant women from violence is a serious problem
that deserves to be elevated above political agendas and
partisan politics, she concluded.
4:40:12 PM
MICHAEL MACLEOD-BALL, executive director, Alaska Civil Liberties
Union (AkCLU), testified in opposition to SB 20. He noted that
he just received a copy of the CS and wanted the committee to be
aware that his comments are directed at the original draft. He
looked forward to further discussion after he'd had an
opportunity to review the proposed changes.
He reported that the AkCLU supports efforts to punish violent
acts toward woman that may harm or terminate a wanted pregnancy.
However, SB 20 would diminish the woman who is typically the
intended victim of the violent act in question. Instead, AkCLU
supports alternative approaches for cases in which a woman
suffers harm to herself and to her pregnancy.
It's clear that domestic violence is a large problem that isn't
going away and implicit in all the domestic violence statistics
is the fact that the batterers intent is to harm the woman and
not the zygote, embryo, or fetus. There is no evidence to
suggest that the perpetrator typically intends to harm the
embryo.
The solution to this national tragedy is to focus on prevention
because punishment does nothing to solve the problem. Punishing
the termination of the pregnancy is an empty gesture and SB 20
does nothing to help the woman who is the intended victim.
Rather, the bill focuses on the embryo that is typically the
unintended consequence of a violent act against a woman.
The AkCLU also opposes SB 20 because it would permit an
individual to be convicted even if he or she had no knowledge of
the pregnancy. Furthermore he took issue with the definition
offered for "unborn child" and warned that a number of problems
were associated with the interpretation.
Enacting the bill would have unforeseen fiscal impacts on
enforcement agencies because it creates a new class of crime and
investigation of such crimes would require sophisticated testing
procedures not currently used for similar crimes.
In conclusion he asked the committee to consider the impact of
diverting resources from investigations of violence against
women and offered his help in drafting legislation that
contemplates enhanced punishment for crimes against women that
also harms a pregnancy. Keep the focus on the woman, the real
victim, he urged.
CHAIR THERRIAULT commented that the ongoing theme has been to
focus on assaults against women and that type of crime is
already addressed in current statutes whether they are pregnant
or not. What the sponsor is suggesting is additive so he didn't
understand the conclusion that the other crimes are diminished.
The perpetrator would still be guilty of the assault on the
woman whether she was pregnant or not.
Furthermore he suggested the testimony jumped between
strengthening the laws on assault against women and the
suggestion to focus on prevention.
MR. MACLEOD-BALL replied it might have seemed as though his
testimony jumped around because he was attempting to accommodate
his testimony to the earlier discussion. The point is that SB 20
would divert attention from the primary problem of domestic
violence against women. Allocating resources to a separate event
would take resources away from the primary event, which is the
attack against the woman. There is nothing to suggest that the
attack is against the embryo because it's an attack against the
woman.
4:47:30 PM
CHAIR THERRIAULT further challenged the premise that the fetus
is a woman's property right.
MR. MACLEOD-BALL clarified that he did not use the word property
and he certainly wouldn't characterize an embryo as property.
Rather, an embryo is a part of a woman's body. He thought there
were statutes in Alaska or elsewhere where the severity of harm
to the individual could be treated as an enhancement, which
would result in stiffer penalties to the perpetrator. Certainly,
the AkCLU would favor legislation to enhance punishment for
violent acts against women that also happen to harm the woman's
pregnancy.
4:49:35 PM
CARRIE ROBINSON, attorney, Alaska Network on Domestic Violence
and Sexual Assault (ANDVSA), reported that the network fully
supports efforts to prevent violent acts toward women. It agrees
with the sponsor statement that the law needs to protect
victims. Certainly acts of violence against pregnant women are
appalling and response to such acts should be strong and
decisive. That being said, SB 20 isn't the proper response and
won't protect victims of domestic violence.
The Alaska Pregnancy Risk Assessment Study shows that about 13
percent of Alaska women are physically abused at the time of
pregnancy and the incidence of violence against teens that are
either pregnant or new mothers climbs to 25 percent. SB 20
ignores the impact of violent crimes against women and puts
victims of domestic violence at further risk.
She said the network is concerned that victims would be
reluctant to seek medical care or to report abuse if they know
that a partner could be charged with homicide under the bill.
Even more alarming is that with the recent change, a woman
herself could be charged with a crime, which increases the
likelihood that a woman wouldn't seek medical care when she
needs it most.
The American College of Obstetricians and Gynecologists opposed
similar legislation at the federal level and domestic violence
organizations at the national level have opposed this type of
legislation. The network suggests that Alaska could lead the
nation in making it clear that a batterer cannot hurt a fetus
without hurting a woman. Keep the focus on women and make crimes
of violence against women during pregnancy an aggravator.
4:54:54 PM
CAREN ROBINSON, Alaska Women's Lobby (AWL), stated appreciation
for the public policy discussions that SB 20 brings forward.
That being said, AWL could not support the bill as currently
written; shifting the focus from the woman to the fetus is
wrong, she emphasized.
If SB 20 moves forward, focus on the danger to a pregnant woman
because keeping her safe will keep the fetus safe. She suggested
that the North Carolina law would be a good pattern for Alaska.
That law states that a person that knowingly causes injury to a
pregnant woman during the commission of a felony will be guilty
of one class higher than the felony committed if the injury to
the woman results in the miscarriage of the fetus or a
stillborn.
There was no further public testimony.
CHAIR THERRIAULT noted that the \X version CS was before the
committee and that Senator Elton had an amendment for members to
consider.
SENATOR ELTON motioned to adopt amendment 1.
CHAIR THERRIAULT labeled the Crawford 3/15/05 amendment as
Amendment 1 and objected for discussion purposes.
SENATOR ELTON introduced his comments by stating that he too
applauds the sponsor for his history of championing vulnerable
people and that he shares that objective. However, he was
struggling with some of the legal issues associated with the
approach the sponsor has taken. For instance, it's troublesome
that a driver in a carpool could be charged with an enhanced
crime if an accident occurred and a pregnant woman and her fetus
were harmed. Furthermore, he questioned what might happen in the
event of repetitive assaults or if a child were born with FAS or
FAE.
Pointing out that experts in the field tend to support the
notion that an aggravator approach rather than the one proposed
in SB 20, he explained that Amendment \F.1 includes a
comprehensive list of the aggravators the courts may consider.
Aggravators include: cruelty; multiple party offenses;
vulnerable victims; prior felonies; paid for offenses; offenses
against law enforcement officers; court employees; emergency
responders; crimes in which the perpetrator obtains substantial
benefit; domestic violence; extensive criminal history; crimes
committed because of sex, color, creed, ethnicity; crimes that
involve distribution of drugs; and crimes against witnesses. He
said that comprehensive list leads to the meat of the amendment
found on page 4.
He told members that after struggling with the issues, he came
to the conclusion that the only way to avoid a lot of the
anomalies that are raised in SB 20 is to go the aggravator
route.
Ms. Robinson suggested that North Carolina has the best approach
and using that standard, the proposed amendment falls short even
though it does provide that the aggravator is applied if the
offense was a felony and if the defendant knew or should have
known that the victim was pregnant. Nonetheless, because the
proposed amendment might not be the best approach, he requested
that the committee wait and review the North Carolina language
before taking any action.
CHAIR THERRIAULT said he would maintain his objection in part
because he hopes the governor will sign a bill into law that
deals with the Blakely decision. Because of court action
aggravators have become harder and more expensive to apply both
in Alaska and across the nation so he wasn't sure that using the
aggravator approach was the one that he or the sponsor would
prefer.
5:05:38 PM
SENATOR DYSON stated that he was disappointed with the
repetitive testimony and he could't understand why giving
additional protection to a wanted unborn child has any sort of
negative affect on mitigating domestic violence. He argued that
just because you can't see what would be a protected entity
doesn't change how you would proceed under law.
Pointing out that he has taken care not to call the unborn child
a person, he argued that under law the Legislature has the right
to extend a protective category to any entity in need of
protection. In fact, it's done to endangered species and bodies
of water all the time, so protecting unborn children that are
wanted doesn't denigrate any other group of protected entities.
5:10:37 PM
CHAIR THERRIAULT asked if there was further debate.
5:10:48 PM
SENATOR ELTON said the question regarding aggravators is
interesting and he would like to hear from the Department of Law
about whether Blakely and the proposed solution gets in the way
of aggravators. He used the example of an aggravator in law for
killing a law enforcement officer.
5:11:38 PM
MS. CARPENETI said no, after Blakely is enacted there will still
be aggravators. It's just that the procedure to prove them has
changed somewhat and they won't be as easy to use as in the
past. They will have to be charged in the charging document and
the jury must decide whether prosecutors proved them beyond a
reasonable doubt. The standard of proof was just lower, but
they'll still be used when appropriate.
5:12:23 PM
CHAIR THERRIAULT called for a roll call vote on Amendment 1. The
amendment failed 2 to 3 with Senators Davis and Elton voting yea
and Senators Huggins, Wagoner and Chair Therriault voting nay.
5:13:09 PM
CHAIR THERRIAULT mentioned that he understood why the sponsor
removed the exemption for the mother, but doing so opens other
issues that are difficult to respond to. He suggested the
sponsor might want to revisit the decision and consider some of
the debate that occurred.
SENATOR DYSON said he was impressed with the logic and arguments
Senator Elton brought up previously and he would work on the
bill further.
CHAIR THERRIAULT noted the bill has a Judiciary Committee
referral and asked if the sponsor would prefer to present a
committee substitute at that time. He said he expects a spirited
debate from both Senator Guess and Senator French.
SENATOR DYSON agreed that might be a good venue in which to
present the next version and he continues to look forward to
hearing from all sides.
5:15:16 PM
CHAIR THERRIAULT noted there were two fiscal notes and one was
indeterminate, which would likely trigger a Finance Committee
referral. He asked the will of the committee.
5:15:50 PM
SENATOR WAGONER said he was willing to move the bill as long as
it had a thorough vetting in the Judiciary Committee. That being
said, he motioned to report SB 20, \X version, and attached
fiscal notes from committee with individual recommendations.
5:16:22 PM
SENATOR ELTON said he would object to speak to the motion and
then he would remove the objection. He stated:
It seems to me that what we're doing if we move the
bill on - I am the person that created an awful lot of
work on behalf of the sponsor and his staff when I
asked about the anomalies about why one person could
be charged and not another person and like you have
mentioned, it's a Sophie's choice. You've got
difficult questions to answer if it's one way and
difficult questions to answer if it's another way. And
so I will remove my objection to the motion, but I
want to note that, in fact, I think that it's an
appropriate decision for this committee to make on
what the best approach is and I sense that the bill is
going to move despite my wish to have us answer that
question and apply the best of our logic to it and
pass it on to another committee. With that, I'll
remove my objection, Mr. Chair.
CHAIR THERRIAULT asked the sponsor if he anticipates asking the
drafter to reinsert the exemption language.
SENATOR DYSON replied he intends to spend considerable time with
the drafter, Ms. Carpeneti, and several others. He said he would
also review similar action taken by the 37 other states.
Specifically he would look at how they handled the anomalies
Senator Elton brought up
CHAIR THERRIAULT advised that the State Affairs Committee could
add the language back in a conceptual amendment.
SENATOR DYSON restated his intention.
CHAIR THERRIAULT announced that the objection was removed and
CSSB 20(STA) and attached fiscal notes would move from committee
with individual recommendations.
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