Legislature(2013 - 2014)SENATE FINANCE 532
03/20/2013 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB22 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | SB 22 | ||
SENATE BILL NO. 22
"An Act relating to the commencement of actions for
felony sex trafficking and felony human trafficking;
relating to the crime of sexual assault; relating to
the crime of unlawful contact; relating to forfeiture
for certain crimes involving prostitution; relating to
the time in which to commence certain prosecutions;
relating to release for violation of a condition of
release in connection with a crime involving domestic
violence; relating to interception of private
communications for certain sex trafficking or human
trafficking offenses; relating to use of evidence of
sexual conduct concerning victims of certain crimes;
relating to procedures for granting immunity to a
witness in a criminal proceeding; relating to
consideration at sentencing of the effect of a crime
on the victim; relating to the time to make an
application for credit for time served in detention in
a treatment program or while in other custody;
relating to suspending imposition of sentence for sex
trafficking; relating to consecutive sentences for
convictions of certain crimes involving child
pornography or indecent materials to minors; relating
to the referral of sexual felonies to a three-judge
panel; relating to the definition of 'sexual felony'
for sentencing and probation for conviction of certain
crimes; relating to the definition of "sex offense"
regarding sex offender registration; relating to
protective orders for stalking and sexual assault and
for a crime involving domestic violence; relating to
the definition of 'victim counseling centers' for
disclosure of certain communications concerning sexual
assault or domestic violence; relating to violent
crimes compensation; relating to certain information
in retention election of judges concerning sentencing
of persons convicted of felonies; relating to
remission of sentences for certain sexual felony
offenders; relating to the subpoena power of the
attorney general in cases involving the use of an
Internet service account; relating to reasonable
efforts in child-in-need-of-aid cases involving sexual
abuse or sex offender registration; relating to
mandatory reporting by athletic coaches of child abuse
or neglect; making conforming amendments; amending
Rules 16, 32.1(b)(1), and 32.2(a), Alaska Rules of
Criminal Procedure, Rule 404(b), Alaska Rules of
Evidence, and Rule 216, Alaska Rules of Appellate
Procedure; and providing for an effective date."
Vice-Chair Fairclough observed that there were two new
fiscal notes attached to the bill and related that version
before the committee was CSSB 22(JUD).
9:23:30 AM
MICHAEL GERAGHTY, ATTORNEY GENERAL, DEPARTMENT OF LAW,
related that Commissioner Masters could not be present in
committee because of the tragic killing of a village public
safety officer (VPSO) in Manokotak.
Senator Hoffman corrected Attorney General Geraghty's
pronunciation of Manokotak. Attorney General Geraghty
thanked Senator Hoffman for his correction and apologized.
Attorney General Geraghty recalled discussion about SB 56,
which was also a bill that reclassified certain crimes and
pointed out that SB 22 did not deal with the same issues.
He explained that SB 22, with one exception, did not
criminalize any conduct that was not already a crime. He
added that the bill would not recriminalize anything and
would not result in putting more people in prison.
Vice-Chair Fairclough requested a moment of silence to
observe the tragedy in Manokotak.
Attorney General Geraghty stated that the most important
aspect of the bill was to pursue the governor's goal of
reducing domestic violence, sexual assault, and sexual
abuse of children. He remarked that Governor Parnell's
administration remained focused on protecting Alaskans from
those crimes. He stated that the CSSB 22 would reverse an
effect of a recent decision by the Alaska Court of Appeals,
which allowed defendants to attempt to get their sentences
reduced under circumstances that the administration
believed violated the legislature's intent. He added that
the bill corrected the effect of the recent court decision.
Attorney General Geraghty stated that the bill also
addressed gaps in the sexual assault statutes to prohibit
probation and parole officers from having sexual relations
with people who were on probation or parole. He recalled an
incident the prior winter, in which a contract employee for
a probation officer had been coercing sex with the inmates;
through a loophole in the law, it was discovered that the
person could not be prosecuted. He explained that that this
provision represented the one crime that was created in the
bill and reiterated that the legislation's other changes
were modifications to the existing statutory scheme.
Attorney General Geraghty related that the bill also made
changes in criminal procedures to protect victims of sexual
assault, sexual abuse, and domestic violence. It also
broadened the protection for these victims from the use of
evidence of past and future sexual misconduct.
9:29:24 AM
Attorney General Geraghty read the following remarks from
Commissioner Masters (copy on file):
The Department of Public Safety is steadfast in its
commitment to the Governor's goal of ending the
epidemic of domestic violence, sexual assault, and
sexual abuse in Alaska and I am honored to sit here
with the Attorney General in introducing the CS for
Senate Bill 22.
This legislation builds on this commitment by
strengthening the investigative tools available to the
Alaska State Troopers and other law enforcement
agencies to apprehend the perpetrators of these and
other related crimes.
Parts of the bill are highly useful to law enforcement
as it:
· Provides law enforcement with additional
investigative tools by broadening the authority
investigators have to intercept communications in
sex trafficking cases.
These crimes commonly require cooperation and
communication among perpetrators, and if we have
enough evidence to justify a wiretap, this bill
would allow us to request judicial authorization
to do so.
· It protects young people who are victims of sex
trafficking or otherwise involved in
prostitution, and strengthens the penalties on
the demand side of sex trafficking, by requiring
persons who prey on these victims to register as
sex offenders.
· It provides additional protections for victims
and survivors of domestic violence, sexual
assault, and stalking.
· It allows victims of human trafficking, sex
trafficking, and unlawful exploitation of a minor
to apply for violent crimes compensation.
· Finally, this bill helps in the investigation of
child pornography crimes, online enticement of a
minor and unlawful exploitation of a minor by
allowing the Attorney General (AG) to designate
another attorney in his office to evaluate
applications for an administrative subpoena to
obtain business records from an Internet Service
Provider.
The investigation of these crimes often requires
quick action by law enforcement. Under current
law, only the AG himself can approve them.
Thank you for the opportunity to introduce the CS for
SB 22 to the Senate Finance Committee, and we urge
your support of this important legislation.
Senator Dunleavy stated that educators were trained in
reporting child abuse issues and that there was some
indemnification for the process as a school district
employee. He inquired if the bill required volunteers to
report suspected child abuse and queried when and where the
volunteers would get trained. He further inquired if the
volunteers would be indemnified. His understanding was that
someone could be sued by another organization for reporting
suspected abuse and inquired if that was correct. Attorney
General Geraghty deferred the question to Ms. Carpeneti.
9:33:14 AM
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
stated that the bill added athletic coaches to the list of
individuals who were required to report suspected child
abuse or neglect if they had reason to suspect it. She
pointed out that the Senate Judiciary Committee had worked
hard on the section of the bill that addressed athletic
coaches because of concerns similar to Senator Dunleavy's.
She stated that the bill only required volunteer athletic
coaches to report if they had spent more than 4 hours a
week for 4 consecutive weeks with the team, or 20 hours in
a single month; additionally, volunteers would be required
to report if they had received training similar to what was
required of school district employees under Title 47.17.022
of the Alaska Statutes, or if they signed a statement that
acknowledged that they were required to report. She
explained that for those who were required to report, there
was a provision in Title 47 that indemnified them for good-
faith reporting.
Senator Dunleavy observed that the bill read "coaches or
volunteer." Ms. Carpeneti replied that the way it was re-
drafted was "interesting" and that DOL had worked with the
Legislative Affairs Agency on the bill.
Vice-Chair Fairclough requested a page number to where
Senator Dunleavy was reading from. Senator Dunleavy
referenced page 19, lines 4 and 5, as well as page 20 of
the bill.
Ms. Carpeneti directed the committee to page 19, line 22
and shared that this provision limited volunteer coaches to
the circumstances that she had previously described.
Senator Dunleavy stated that the second issue was
indemnification. He recalled that as a school district
employee, he felt that they were led to believe that
indemnification protected good-faith reporters under the
law. He inquired if it was true that a reporter was "not
necessarily" indemnified and could have a lawsuit brought
against them for actually reporting. Ms. Carpeneti
responded that AS 47.17.050 granted immunity to good-faith
reporters that were required to report under the law;
however, this did not exclude an individual from filing a
lawsuit against a reporter. She explained that anyone could
file a lawsuit and that whether or not the suit was upheld
was another question. She pointed out that people who would
be required to report under the bill would have the same
immunity that was offered to people that were currently
required to report.
Senator Olson noted that even if a defendant had immunity,
they would still have to hire a lawyer to demonstrate the
immunity. He inquired who would pay for the defense lawyer
in this case. Ms. Carpeneti responded that she was unsure
about the answer and would have to get back to the
committee with a response.
Senator Dunleavy requested that Ms. Carpeneti cite the
indemnification statute again. Ms. Carpeneti reiterated
that the statute was AS 47.17.050.
9:37:50 AM
Senator Dunleavy noted that unless the volunteer reporting
issues were clarified, people might not want to volunteer.
He noted that if the indemnification concept did not
prevent the actual costs associated with a court defense
that resulted from reporting according to the law, the
volunteer would be caught between a "rock and a hard
place." He expounded that not reporting would be a criminal
offense and that reporting could result in civil lawsuit.
He opined that a volunteer could be punished for doing the
right thing. Ms. Carpeneti stated that Senator Dunleavy had
described a position that every mandatory reporter was in
and that it was a tough public-policy issue for the
committee to decide. She explained that the Senate
Judiciary Committee had worked hard on the bill's
compromise and that there were volunteer coaches that did a
great job assisting paid employees with coaching duties.
She observed that there were volunteer coaches all over the
state that did a great job coaching sports teams and that
the Senate Judiciary Committee had thought it would be
appropriate to have them be mandatory reporters if they met
the criteria laid out in the bill. She reiterated that
mandatory reporting for volunteers was a tough public
policy issue and that every mandatory reporter was subject
to the concern of lawsuits being filed against them. She
pointed out that even if the law stated that they could not
win, someone could still file a lawsuit that needed to be
responded to.
Senator Dunleavy noted that the concept was fraught with
all sorts of issues. He related that in an attempt to
protect children, people ended up in a "choose your poison"
situation. He inquired if excluding volunteers from the
bill would result in them been excluded from the lawful
responsibility to report suspected child abuse or neglect.
Ms. Carpeneti replied that it would exclude them from the
mandatory duty to report, but that they would still be free
to report; they could be subject to civil litigation, but
would not necessarily be subject to damages. She explained
that civil rules did provide that costs be awarded to a
defendant who had won a case and that she could provide
more information regarding the compensation for defendants.
Vice-Chair Fairclough noted that the line of questioning
was important, but that committee was "rolling out" the
bill and was not in debate. She remarked that she had
several questions regarding who was actually paying for the
volunteers to be trained.
Vice-Chair Fairclough noted that there was a question
regarding the possible exclusion of non-profit coaches from
the reporting requirements. She remarked that someone
working for a non-profit organization would be paid and
noted that questions had arisen whether these individuals
would be excluded on page 19, line 23 of the bill. She read
from page 19, line 23 of the bill as follows:
Sec. 37. AS 47.17.020 is amended by adding a new
subsection to read:
(j) This section does not require an athletic coach
who is an unpaid volunteer to report child abuse or
neglect under (a)(9) of this section…
Vice-Chair Fairclough noted that the committee would
continue to deal with the issue of volunteers in the bill.
9:42:31 AM
Senator Hoffman inquired over what time period a person was
required to report suspected abuse or neglect. Ms.
Carpeneti stated that DOL had not drafted the wording and
that the language had been adopted by the Senate Judiciary
Committee. She read the bill to mean that, if the other
criteria were met, a volunteer coach would be required to
report during that one month that they had extensive
contact with the children. She stated that a coach would
not have a duty to report during the offseason. Senator
Hoffman observed that the language should be more specific
if the intent was as Mr. Carpeneti had surmised.
Attorney General Geraghty related that the circumstances
would have to be egregious for a person to be prosecuted
for failing to report suspected child abuse or neglect. He
discussed a recent scandal at Penn State University and
related that witnesses to the scandal had actually failed
to report observed child abuse, not just suspected abuse.
He related that concern regarding an abusive prosecution
going after someone for failing to report was
understandable, but reiterated that it would take some
pretty egregious circumstances for the state to prosecute
someone for failing to report. He related that coaches were
with kids a significant amount of time and stated that
while the provision may need some tightening or
clarification, it was appropriate. He recalled examples in
recent memory where abuse should have been reported, but
instead went years undetected.
Vice-Chair Fairclough reiterated that the committee was not
debating the bill, but was trying to understand a policy
that the administration was advancing to protect children.
Senator Olson agreed that the offenses would have to be
egregious in order for charges to be brought against
someone for not reporting, but that the issue was the "cold
water" that was being splashed onto volunteers. He related
that volunteers in the rural areas of the state were scarce
and warned that the bill's volunteer provision could
prevent people from wanting to participate. Attorney
General Geraghty responded that the point was well taken.
Senator Dunleavy pointed out that he was not advocating not
reporting. He remarked that his point had not been to not
report if abuse was observed, but that there were about
four issues imbedded within the bill that could be changed
for the benefit of everyone. He noted for the record that
he was not advocating not reporting egregious activities,
but that there were several issues in the legislation that
needed to be addressed to better protect the children and
others surrounding the issue.
9:47:22 AM
Vice-Chair Fairclough inquired whether the committee would
like a sectional analysis or a higher level overview of
bill. Senator Olson stated that he preferred a sectional,
point-by-point analysis and noted that the bill would have
far reaching effects.
Vice-Chair Fairclough requested committee members to hold
their questions until Ms. Carpeneti had finished her
analysis and noted that she wanted to give the public time
to testify on the bill. She requested that the written
comments of Commissioner Masters be provided to the
committee.
Ms. Carpeneti related that bill pursued the governor's goal
of reducing sexual abuse, sexual assault, and domestic
violence in Alaska, but that it did so in an unusual way.
She explained that with one exception, the bill addressed
the criminal procedural law in Alaska rather than
substantive law, which made it difficult to explain. She
stated that the exception to the bill that created a new
crime was the creation of a Class C felony for a probation
or parole officer to engage in sexual penetration with
someone who was on probation or parole, which was similar
to the crime that prohibited police or correctional
officers from engaging in sexual penetration with people
who were subject to the jurisdiction of their agencies; it
also created a Class A misdemeanor for probation and parole
officers to engage in sexual contact with a person on
probation or parole. She pointed out that the law already
had an exception to the offense for a probation or parole
officer who was married to the person on probation or
parole. The bill added an affirmative defense that the
probation officer and the person on probation had a pre-
existing relationship before the person was placed on
probation and that it lasted up until the time of the
alleged offense. In terms of procedural law, the bill
allowed victims of sex and human trafficking to bring a
civil action for damages, regardless of how much time had
elapsed since the commission of the offense. The
legislation also allowed the state to prosecute defendants
that were charged with the distribution of child
pornography, felony sex trafficking, and felony human
trafficking, regardless of the time that had elapsed since
the offense.
Ms. Carpeneti related that the bill clarified that an order
to not contact a victim or a witness in a case applied to a
defendant who had been unable to make the conditions of
bail and was still in jail. She related that there were
several cases in Fairbanks where a defendant was ordered
not to contact the victim in a domestic violence case, but
had done so from jail. She explained that the defendant had
called the victim dozens of times when they had been unable
to make bail. She reported that the court had concluded
that the calls from jail were not covered by law because
the person had not met bail and was not out yet. She
pointed out that the legislation would overrule a decision
by the Court of Appeals based on findings by the Senate
that were adopted in 2006 when the Senate had raised the
presumption ranges for people who were conviction of most
sex felonies; she offered to go into this into more detail,
but was happy to do so at a later time.
Vice-Chair Fairclough noted that there was a request to go
through the bill's analysis section by section. Ms.
Carpeneti responded that she would go section by section.
9:52:46 AM
Ms. Carpeneti began to speak to the section analysis of the
bill (copy on file). She related that she had already
discussed Sections 1, 21, and 21 and had reviewed Section
2. She pointed out that Sections 3, 4, 5, 6, 7 and 8 dealt
with probation and parole officers. She stated that Section
9 filled the gap in the crime of contacting a victim or
witness in violation of a court order. She noted that
Section 10 allowed the state to request the forfeiture of
property at sentencing if it was used by the patron of a
prostitute or the prostitute and if it was used in
connection with the offense or was derived from the
offense; the request was discretionary with the court and
required that the defendant be convicted of the offense
before forfeiture could be considered. She reported that
Section 11 had already been dsicussed, but that it allowed
the state to prosecute a person for the distribution of
child pornography, felony sex trafficking, and human
trafficking at any time. She relayed that Sections 12 and
13 allowed the court, at its own discretion, to require a
person released on bail in connection with a domestic
violence crime to be monitored by a global positioning
device (GPS) or similar technology; it required that the
court follow guidelines that were developed by the
Department of Corrections in cooperation with the
Department of Public Safety. She pointed out that the
guidelines had not been adopted or considered and that it
was something that would be instituted at a future date.
She added that Sections 12 and 13 would allow the court to
implement monitoring under circumstances that it felt would
help the safety of the victim.
Ms. Carpeneti continued to speak to the sectional analysis
of the bill and reported that Section 14 filled a gap in
the state's bail law; the current law required a defendant
who was charged with a domestic violence crime to appear in
person before a judge or call in by telephone before being
released on bail. Section 14 required a person who had
violated a condition of release and had been arrested for
the violation to appear again in person before a judicial
officer before being release on bail; the purpose was that
the defendant in a domestic violence case would have
personal contact with the judge, so that the judge could
evaluate whether or not the release would be safe to the
victim. She stated Section 15 had already been described,
but that it allowed the attorney general to request a judge
to give authorization to wiretap in the investigation of
felony sex trafficking and 1st degree human trafficking.
She pointed out that felony sex trafficking and 1st degree
human trafficking typically involved cooperation among
perpetrators and that Section 15 would assist law
enforcement in investigating those crimes. She stated that
Section 16 expanded the "rape shield protection"; the
section addressed victims of sexual assault, sexual abuse,
and the unlawful exploitation of a minor. She stated that
the law provided that if someone wanted to introduce
evidence concerning a victim's prior sexual conduct, that
the defendant ask permission outside the presence of the
jury and have it be addressed by the court in camera. She
offered that the information could be very personal to a
victim and that a judge could decide outside of the
presence of the jury whether or not it ought to be allowed
to be introduced. She pointed out that the bill allowed for
the protection of evidence of the victim's conduct after
the alleged offense in addition to before the offense.
Section 16 also had a requirement that specified that the
defense attorney had to make the request within 5 days
prior to the trial, unless it was unreasonable to do so, in
order to allow everyone to know the rules before the trial
started.
Ms. Carpeneti continued her sectional analysis of the bill
and stated that Sections 17 and 18 addressed some
efficiency requirements. The two sections specified that a
person who had been in a treatment program as a condition
of bail release, a condition of release while his/her
conviction was being appealed, or a condition of a petition
to revoke probation to request credit for the time in the
treatment program in order to allow the court to make a
decision regarding whether a person should get credit for
time in treatment programs. She discussed a recent case
that litigated a claim of credit for time in a treatment
program that had occurred 10 years before the litigation
and pointed out that Sections 17 and 18 required people to
raise the issue as close as possible to the time that was
served; this would allow the court to resolve the issue
with accuracy.
9:59:06 AM
Vice-Chair Fairclough noted that Co-Chair Meyer had joined
the committee.
Ms. Carpeneti continued to speak to the sectional analysis
of the bill and related that section 19 specified that the
court could impose a suspended imposition of sentence (SIS)
for someone who was convicted of sex trafficking; she noted
that it was highly unlikely that a court would do so but
that the section clarified that a person convicted of those
crimes would be ineligible for an SIS. She pointed out that
Section 20 required the judge to give some consecutive time
when they were sentencing a person for more than one crime
involving the distribution of child pornography, the
possession of child pornography, or the distribution of
indecent material of minors. See related that Sections 21
and 22 had already been discussed and pointed out that
Section 23, which she considered to be a conforming
amendment, corrected an error in the definition of "sexual
felony," which was found in Title 12 of the Alaska
Statutes. She stated that sex trafficking in the 1st degree
and the online enticement of a minor were used as sexual
felonies in the state's sentencing law regarding the
increased presumptive ranges for sex felonies. She pointed
out that sex trafficking in the 1st degree and the online
enticement of a minor were addressed in the sentencing
provision and opined that they should also be defined as
sex felonies in the definition section.
Ms. Carpeneti continued to give a sectional analysis of the
bill. She stated that Section 24 had already been
discussed, but that it required a person who was convicted
of felony prostitution, who would be a patron of a child
prostitute, to register as a sex offender. She pointed out
that a patron of a child prostitute would not be prosecuted
for a felony unless the patron was at least 18 years-of-
age, the prostitute was under 18 years-of-age, and that
there was a difference of at least 3 years between the ages
of the two people. She stated that Sections 25 and 26 were
conforming amendments that addressed what information had
to be on a civil protective order for domestic violence
crimes for stalking and sexual assault. She pointed out
that there was a warning in statute that advised people who
had been served with a protective order that the violation
of certain provisions in the order might be a crime and
related that it also warned that the maximum fine for a
violation was a Class A misdemeanor. She pointed out that
under the current statute, the maximum fine for a Class A
misdemeanor was $5,000; however, the legislature had raised
the maximum fine several years prior to $10,000 for that
crime and the two sections reflected the change in the
statute.
10:02:34 AM
Ms. Carpeneti continued to speak to the sectional analysis
of the bill and related that Section 27 addressed the
privilege between a counselor and a victim of domestic
violence and sexual assault. She stated that the current
law provided for an evidentiary privilege of confidential
communications between the victim and the counselor;
however, the way the bill was currently drafted, it did not
recognize that privilege for counselors who were working on
a U.S. Military base or who were contracted by the U.S.
military. Section 27 made the necessary changes to provide
the protection of confidential communications for
counselors who worked on military bases or who were
contracted by the U.S. Military. She opined that Section 28
had also been previously described, but that it allowed
victims of sex trafficking, human trafficking in any
degree, or victim of the unlawful exploitation of a minor
to apply for compensation from the violent crimes
compensation board. She stated that Sections 29, 40, and 41
made the requirements more explicit for a court recognize
the impact of the crime on the victim at the point of
sentencing. Section 40 required the pre-sentence report to
include a victim's impact statement or an explanation of
why the victim or his/her representative could not be
interviewed. She related that Section 41 required the court
to take the impact on the victim into account when
preparing the sentence report, as well as for other
purposes. She reported that Section 29 required the Alaska
Judicial Council to include information about the judges'
attention to the victims' damages at sentencing when it was
compiling information in connection with a retention
election.
Ms. Carpeneti continued to speak to the sectional analysis
of the bill and stated that Section 30 specified that a
person who was convicted of an unclassified or a Class A
sex felony was not eligible for mandatory parole, which was
otherwise known as "good time." She relayed that Sections
31 through 34 all addressed an issue that was raised by the
attorney general. She explained that under current law, law
enforcement could apply to the attorney general to get an
administrative subpoena for identification information from
an internet service provider. She shared that currently
only the attorney general could consider and approve those
subpoenas. Sections 31 through 34 allowed the subpoena
authority to be designated to either the head of the Civil
or Criminal Divisions of the Department of Law. She stated
that Section 35 addressed when the Office of Children's
Services can apply to a judge for an excuse for making
reasonable efforts to unite the child in need of aid with a
parent or guardian. She explained that the Office of
Children's Services was required to make reasonable efforts
to reunite a parent with a child, but Section that 35
allowed the office to ask a judge for the discretion to be
released from this requirement. She related that a judge
had the discretion under the bill to excuse the requirement
from making reasonable efforts to reunite the child and
parent if the court found by clear and convincing evidence
that the parent or guardian had sexually abused the child,
sexually abused another of their children, or was required
to register as sex offender or child kidnapper. She pointed
out that the authority in Section 35 was discretionary and
that there were some circumstances where efforts to reunite
a child with a parent or guardian were worthy.
Ms. Carpeneti continued to address the bill's sectional
analysis and stated that Section 39 adopted a court rule
that would help prevent the publication of child
pornography; it required that the defendant and his/her
attorney go to wherever the material was stored rather than
requiring it to be copied again. She offered that every
time this material was copied, the child was re-victimized.
She added that the court rule would specify that child
pornographic materials be kept in one place and viewed in
that place. She stated that Section 40 and 41 had already
been discussed and that Section 40 changed a court rule.
She remarked that in most cases in a criminal prosecution,
evidence of a defendant's prior bad acts were not
admissible, but that there were exceptions to that law with
crimes dealing with domestic violence, as well as the
physical and sexual abuse of a minor. She stated that one
of the exceptions allowed evidence of prior physical or
sexual abuse of a minor if the court determined that it was
probative enough; the court weighed the probative value of
the evidence against its prejudicial effect. For reasons
she was unable to recall, the court rule limited evidence
of prior bad acts to acts that were committed within the
last ten years of the current offense that was being
charged; the ten year look back did not apply to evidence
of prior bad acts for domestic violence cases or sexual
assault. She stated that the bill would remove the ten-year
look back. She pointed out that sentences were fairly
serious for people that were convicted of the physical or
sexual abuse of a minor and that a person might not be out
of jail for very long before that ten-year period had
passed; the change in Section 40 did not require the
evidence to be admitted, but would allow the judge to weigh
that evidence like other evidence of prior bad acts when
they determined whether the evidence ought to be
introduced. She related that the remaining sections of the
bill were applicability sections, which dealt with votes
for court rules and shared that she would be happy to
explain them if the committee desired.
10:11:27 AM
Senator Dunleavy inquired if the bill covered volunteer
coaches or just volunteers. Ms. Carpeneti responded that
she believed it was just volunteer coaches that were
addressed in the bill. She shared the definition of
athletic coach, which was found on page 20 of the bill, as
follows:
.."athletic coach" includes a paid or volunteer leader
or assistant of a sports team..
Ms. Carpeneti thought that the bill would not apply to
"parents who brought drinks for the team" or various other
volunteers.
Senator Dunleavy noted that the bill seemed to apply to a
broader term of "volunteer" rather than a more specific
term of "volunteer coach." Ms. Carpeneti thought the bill
applied to a volunteer leader or assistant to a sports
team, and would not apply to a parent who helped out, drove
kids home, or various other things.
Senator Dunleavy inquired if the bill was requesting a
constitutional change. Ms. Carpeneti responded that she did
not believe there was a constitutional change in the bill
and inquired where Senator Dunleavy was making reference
to.
Senator Dunleavy recalled that Ms. Carpeneti had discussed
a required two-thirds majority vote from the legislature.
Ms. Carpeneti responded that the constitution required a
two-thirds majority by legislature in order to make a
court-rule change, which did not represent a constitutional
change.
Senator Dunleavy pointed to page 13, line 9 of the bill and
inquired if the age was being changed to less than 20 years
old. Ms. Carpeneti apologized for not mentioning it earlier
and responded that it was a conforming change. She
explained that the prior year, the legislature had amended
the sex trafficking laws that dealt with 1st degree
offenses. The bill's provision provided that it was an
unclassified felony for a person to commit sex trafficking
for a victim under 20 years of age; the previous benchmark
for a felony had been 18 years old, but the legislature had
changed the age to 20. She explained that testimony had
indicated that most kids under the age of 20 years needed
special protection from the perpetrators of sex
trafficking. She related since the time that sex
trafficking had been made a crime Alaska, sex traffickers
had been required to register as sex offenders; the
provision simply changed the age to under 20 years old to
reflect the change that was made by the legislature the
prior year.
Senator Bishop pointed to Section 27 of the bill and
inquired if it expanded the legislation's scope to include
other branches of the armed services in order to allow
counseling centers to work back and forth with each other.
Ms. Carpeneti replied that it defined a victim counseling
center to include those that were operated by the U.S.
Military or an organization that was contracted by the U.S.
Military to provide counseling services to victims.
10:15:42 AM
Senator Bishop pointed to Section 29 of the bill and
related that it required the Alaska Judicial Council to
include information about a judge's considerations of
victims when imposing a sentence in a felony case. He
requested further explanation of this section and inquired
if it meant that there was a "rap sheet" on the judge
before he was elected. Ms. Carpeneti responded that the
Alaska Judicial Council gathered information on judges when
they would be up for judicial retention and that the
information was gathered from a variety of sources. Section
29 would require the council to include information that
they received about a judge regarding his/her consideration
of the victims in the imposition of sentence.
Senator Bishop noted that in the interest of saving time,
he would save his other questions for outside the
committee.
10:16:44 AM
Vice-Chair Fairclough OPENED public testimony.
LINDA GIANI, SELF, WASILLA (via teleconference), expressed
concerns regarding the bill, specifically that the statutes
made people not want to report suspected abuse or neglect
and did not protect reporters completely. She related that
she was an independent care coordinator who worked with
extremely vulnerable clients, none of which had the
communication skills to relate that they were being abused.
She shared that she was currently involved in an eight-year
long lawsuit that was a result of a report of harm that she
had filed against an assistance living provider on behalf a
six-year client. She related that a lawsuit had been filed
against her, despite the fact that she was a state-
certified care coordinator who acted in accordance with the
statute by filing a report of harm in good faith. She
recalled that the State of Alaska and Adult Protective
Services (APS) had also sued in the case. She stated that
Superior Court in Palmer had ruled in her favor, but that
she had lost the appeal in the Alaska Supreme Court. While
the Alaska Supreme Court had ruled against her in the case,
it had ruled in favor of the State of Alaska and APS. She
opined that the reason that the suit was filed and was
being continued was the claim that she had not acted in
good faith. She offered that the plaintiff's attorney had
come up with "falsehoods" to show that the report of harm
was not filed in good faith. She pointed out that APS had
"virtually" said that everything that was filed in the
report was true and represented violations, and pointed out
that she had only been doing her job. She discussed her
difficulties in dealing with the lawsuit and warned that if
she lost the case, it would send a message to everyone to
not report harm. She shared that most people that she knew
were not currently reporting harm. She offered that unless
the words "good faith" were removed from the statute, the
issue would make reporters think twice before reporting
abuse. She pointed out that after she had been sued,
another person in her client's home had filed a report of
harm that validated the same violations.
10:21:46 AM
Vice-Chair Fairclough CLOSED public testimony.
Vice-Chair Fairclough discussed the weekly agenda for the
committee.
Co-Chair Meyer discussed housekeeping.
Senator Dunleavy requested more information about
indemnification and the Good Samaritan concept in the State
of Alaska.
Vice-Chair Fairclough hoped that DOL would take some time
to discuss the bill with each committee member and noted
that there had been significant discussion regarding
"volunteer" in the legislation. She requested that the
responses to members' questions be submitted in writing to
Co-Chair Meyer's office. She noted that committee members
had the ability to solicit legal counsel in order to make
amendments to the bill.
SB 22 was HEARD and HELD in committee for further
consideration.
10:24:11 AM
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 22 Sectional (JUD).pdf |
SFIN 3/20/2013 9:00:00 AM |
SB 22 |
| SB 22 Masters Testimony 032013.pdf |
SFIN 3/20/2013 9:00:00 AM |
SB 22 |