Legislature(2019 - 2020)BELTZ 105 (TSBldg)
04/05/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB35 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 35 | TELECONFERENCED | |
SB 35-CRIMES;SEX CRIMES;SENTENCING; PAROLE
1:34:55 PM
CHAIR HUGHES announced that the only order of business would be
SENATE BILL NO. 35, "An Act eliminating marriage as a defense to
certain crimes of sexual assault; relating to enticement of a
minor; relating to harassment in the first degree; relating to
harassment in the second degree; relating to indecent viewing or
production of a picture; relating to the definition of 'sexual
contact'; relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
1:35:14 PM
CHAIR HUGHES made opening remarks and stated her intent to hold
the bill in committee.
1:35:39 PM
SENATOR MICCICHE moved to adopt the proposed committee
substitute to SB 35, work order 31-GS1873\K, Radford, 4/2/19,
Version K, as the working document.
CHAIR HUGHES objected for discussion purposes.
1:36:54 PM
BUDDY WHITT, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, reviewed the changes in the committee
substitute (CS) for SB 35, Version K.
Title Changes: The following has been added to the
title in order to conform to changes and added
provisions;
? relating to sexual assault
? relating to unlawful exploitation of a minor
? relating to definitions of sexual felony, sex
offense and sex offender
1:37:12 PM
MR. WHITT reviewed Section 1.
Section 1: Adds subsection (f) intent language added
for the Department of Public Safety to make additional
resources available to expand investigation of online
exploitation of children (Page 3, Line 7 and 8 ).
MR. WHITT said that several members planned to offer an
amendment to address this, but instead it was included in
Version K. He invited Senator Kiehl to speak to the proposed
change and Senator Micciche to address the finance aspects.
1:38:21 PM
SENATOR KIEHL said he discovered, while conducting research on a
bill related to child pornography, that the state does not
currently have personnel resources dedicated to actively finding
people who post explicit content online. However, when someone
fixes a computer or an internet service provider "red flags"
exploitive content, Alaska does conduct an investigation. He
applauded the Department of Public Safety (DPS) for working with
local law enforcement through a multi-agency Internet Crimes
Against Children Task Force. He supported the intent language to
proactively seek information on online exploitation of children
as worthwhile. He pointed out that this effort would have a
budgetary impact.
SENATOR MICCICHE said he appreciated this change. He related
that the Senate Finance [Standing] Committee is evaluating the
cost, but he plans on putting it in the Senate's version of the
budget. He said he would meet with the DPS commissioner to get a
better idea of the program.
1:40:24 PM
CHAIR HUGHES advised the public that a publication by the U.S.
Department of Justice related to child pornography is posted
online. She explained that she met with DPS and learned about
the dark web. It takes special skills to pinpoint these
activities, she said. Many of the changes in SB 35 would tighten
penalties for sexual crimes against children. She appreciated
the intent language. She would like pedophiles to know they are
not welcome in Alaska.
1:41:32 PM
SENATOR MICCICHE recalled that Chair Hughes reported that child
pornography is not illegal in 55 countries. Whenever there is a
market, there will be some to provide that product, [that
legality is not the issue]. He offered his belief that SB 35
would help identify perpetrators of these crimes.
1:42:06 PM
RAMIN DUNFORD, Sergeant, Department of Public Safety, stated
that he is the supervisor of the four Internet Crimes Against
Children Task Force investigators, one computer forensic
examiner civilian, and one mobile forensic examiner civilian. He
also supervises the Financial Crimes Unit. In response to Chair
Hughes, he reported that in the last 30 days the unit discovered
one network with 42 independent IP addresses in Alaska that
actively contained images of sexually exploited children.
1:43:42 PM
MR. WHITT reviewed Section 2.
Section 2: Added section which amends AS
11.41.420(a)(3) to revise the mental state for sexual
assault in the second degree when the offender engages
in penetration with someone who is mentally incapable,
incapacitated or unaware that a sexual act is being
committed (Page 3, Line 19 through 23).
Section 3: Added section which amends AS 11.41.425(a)
to revise the mental state for sexual assault in the
third degree when the offender engages in sexual
contact with someone who is mentally incapable,
incapacitated or unaware that a sexual act is being
committed (Page 4, Line 1 through 5).
MR. WHITT explained that these changes were suggested by Senator
Reinbold. Section 2 would remove language that the "offender
knows" that the victim is mentally incapable. This means it is
not an excuse when an offender knows that the victim is mentally
incapable, incapacitated or unaware that a sexual act is being
committed.
1:45:17 PM
MR. WHITT reviewed Sections 6 and 7.
Section 6: Added section which amends AS 11.41.438(b)
adding that the crime of sexual abuse of a minor in
the third degree is a class C felony punishable under
AS 12.55.125(e) when the offense occurs outside the
provisions if section (c) of this section (Page 5,
Line 5 through 8).
Section 7: New subsection AS 11.41.438(c) that sexual
abuse of a minor is a class C felony punishable under
AS 12.55.125(i) if the victim is at least six years
younger than the offender (Page 5, Line 9 through 12).
MR. WHITT reminded members that the committee previously held
discussions on the differences in ages between the perpetrator
and the victim and how it affects criminal charges. These two
sections provide that the penalty for the crime is a class C
felony, but the penalty would be more severe if the age
difference is six years or more.
SENATOR SHOWER said that an 18-year-old having sex with a 12-
year-old is not acceptable. He asked for further clarification
on the age differences between the victim and offender for
sexual abuse of a minor.
1:47:45 PM
JOHN SKIDMORE, Director, Criminal Division, Central Office,
Department of Law, Anchorage, stated the law for sexual abuse of
a minor in the third degree is when the victim is age 13,14, or
15 and a four-year age difference occurs between the victim and
the offender. Mr. Whitt described the penalties are greater with
a six-year-age difference, but the threshold remains as stated
for sexual abuse of a minor in the third degree.
CHAIR HUGHES asked for further clarification that there would be
a stiffer penalty an 18-year-old having sex with a 12-year-old.
MR. SKIDMORE said having sex with a 12-year-old would constitute
sexual abuse of a minor in the second degree and would carry a
greater penalty. However, this bill does not address that crime.
1:49:43 PM
SENATOR MICCICHE asked for further clarification on the age of
consent.
MR. SKIDMORE explained that the age of consent is 16 years of
age. The Alaska statutes break victims into groups: under the
age of 12 carried the most stringent penalties, ages 13 to 16,
carries a slightly lower penalty so long as the age is
appropriate between the victim and the offender. He said he
hoped to put together a chart to better clarify the penalty
provisions.
SENATOR MICCICHE agreed a chart would be helpful. He related his
understanding that a three-year age difference would be more
serious than if the victim was 17 years old and the offender was
18 years old.
MR. SKIDMORE said that sexual activity between an 18-year-old
and 17-year-old would not fall under sexual abuse of minor since
it is above the age of consent. The department would evaluate as
to whether the activity was without consent. He related a
scenario with an 18-year-old offender and a 16-year old victim,
which would fall under the sexual assault statutes.
SENATOR MICCICHE asked whether the penalty would be different
for an 18-year-old perpetrator and a 15-year old victim or a 17-
year-old perpetrator and a 14-year-old victim since the 18-year-
old would be an adult.
MR. SKIDMORE responded that two provisions of law come into
play. First, the scenario indicates a 3-year-age difference so
it would not fall under sexual abuse of a minor. However, if the
ages in the scenario slightly increased and the perpetrator was
17 years old and the victim was 13 years old or the perpetrator
was 18 years old and the victim was 14 years old, there would be
a four-year age difference. The question would be whether those
juveniles would be charged in adult court. It would not fall
under an automatic waiver unless it was considered a class A
felony offense or an unclassified felony. That determination
would be made based on whether penetration or sexual contact
occurred. He said that an 18-year-old would be treated as an
adult and a 17-year-old would be treated as a juvenile. He said
that sexual abuse of a minor is a class B felony, so it would
not fall under an automatic waiver. Thus, the two individuals
would be treated differently, he said.
1:54:53 PM
SENATOR KIEHL recalled that the penalty for sexual abuse of a
minor was a class C felony.
MR. SKIDMORE clarified the difference in felony penalties for
sexual abuse of a minor. The crime would be a class B felony if
the crime included sexual penetration and it would be a class C
felony if the crime included sexual contact.
SENATOR KIEHL directed attention to the proposed changes in SB
35. He related his understanding that the crime of sexual abuse
of a minor in the third degree was not one involving force, but
it was a crime because the age difference is too great for
consent to be allowed.
MR. SKIDMORE answered yes.
SENATOR KIEHL referred to Section 7 to the 6-year age gap
between the perpetrator and the victim. He noted the more
stringent penalty. He asked whether the penalty for that crime
would include registration as a sex offender.
MR. SKIDMORE answered yes.
SENATOR KIEHL and Chair Hughes agreed that a chart would be
helpful.
1:57:32 PM
MR. WHITT reviewed Section 11.
Section 11: Amends AS 11.41.455(c) increasing the
criminal classification for unlawful exploitation of a
minor (Page 5, Line 28 through Page 6, Line 5).
MR. WHITT highlighted the current penalties:
• The first offense of exploitation of a minor is a class B
felony
• The second offense of exploitation of a minor is a class A
felony.
Under SB 35, Version K, the penalties would increase, as
follows:
• The first offense of unlawful exploitation of a minor would
be a class A felony; and
• The penalty for the minor being exploited who is under the
age of 13 would be an unclassified felony.
In response to Chair Hughes, he confirmed that the penalties for
exploitation of a minor under the age of 13, were as follows:
• The penalty for exploitation of a minor under the age of 13
would be an unclassified felony; and
• The second offense for exploitation of a minor under the
age of 13 would also be an unclassified felony.
SENATOR SHOWER asked whether jurisdiction means Alaska and
includes offenders convicted in other states.
MR. WHITT explained that topic would be addressed in Section 22
of SB 35.
1:59:44 PM
CHAIR HUGHES remarked that an unclassified felony is very
serious. However, as the legislature toughens its criminal
penalties, it should keep in mind penalties for crimes against
children in other jurisdictions. For example, in Oklahoma,
offenders convicted of any offense of forcible anal or oral
sodomy rape, rape by instrumentation, or lewd molestation of a
child under the age of 14 shall be punished by death or by
imprisonment for life without parole. She asked the record to
reflect this consideration.
2:00:45 PM
MR. WHITT added that Section 11 was added at the request of
several members, including Senator Reinbold.
2:01:09 PM
MR. WHITT reviewed Section 12.
Section 12: Amends AS 11.41.458(b) which clarifies
that indecent exposure in the first degree is a class
B felony when the offense occurs in the view of a
minor under 16 years of age (Page 6, Line 18 through
21).
2:01:31 PM
SENATOR KIEHL asked for further clarification on the penalty for
indecent exposure in the first degree. He referred to lines 20-
21 and asked whether the class B felony is for the first or
second offense.
CHAIR HUGHES, reading from her notes, reviewed the penalties for
indecent exposure, as follows:
• Indecent exposure in the second degree plus masturbation,
when the victim is 16 years of age or older would be a
class C felony;
• Indecent exposure in the second degree plus masturbation
when the victim is 15 years of age or younger, would be a
class B felony;
• Indecent exposure in the second degree when the offender
has a prior conviction for indecent exposure and the victim
is 16 years of age or older, would be a class C felony; and
• Indecent exposure in the second degree when the offender
has a prior conviction for indecent exposure and the victim
is 15 years of age or younger would be a class B felony.
MR. SKIDMORE responded that he believed the penalty provisions
stated were correct. He confirmed that the determination of
penalties for a class B felony or a class C felony would depend
on the age of the victim. However, indecent exposure in the
first degree is dependent upon one of two factors, whether the
crime also included masturbation or if it was a second indecent
offense. Finally, as Chair Hughes indicated, the penalty would
change based on the victim's age.
2:03:48 PM
SENATOR KIEHL expressed concern because the penalties seemed
disproportionate. He acknowledged that a person streaking in the
view of a high school would be engaging in criminal activity and
must be prosecuted. However, he was unsure that the penalties
for these crimes were on par with other class B felonies. He
said he viewed indecent exposure as being in a different class
than the crime of sexual penetration of a minor. In response to
Chair Hughes, he confirmed his scenario involved a person
streaking in the view of a high school.
REGINA LARGENT, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, stated that indecent exposure in the second
degree involves the exposure of genitals. She reiterated that
the distinction of a class C felony was related to adding the
sexual act of masturbation to the crime. The penalty was
increased to a class B felony when a person who is 15 years or
younger was exposed to genitals plus a sexual act or if it
pertained to a repeat offender. She emphasized that a repeat
offender created a demonstrable danger to children.
2:05:56 PM
MR. WHITT explained that Sections 14 through 18 all pertain to
the crime of indecent viewing or production of a picture. He
reviewed Section 14.
Section 14: Amends AS 11.61.123(a) for the crime of
indecent viewing or production of a picture (Page 7,
Lines 13 through 30).
MR. WHITT said the language "production of a picture" replaces
the language "photography" in current statute. Section 14 would
remove the ability for the minor and parent to consent for
viewing or production of a picture. It specifies that a crime
occurs any time that the person viewed or produces an image of
someone under the age of 16. He said that someone 16 years of
age and over can give consent. However, it is a crime if consent
is not given for the indecent viewing or production of a
picture.
MR. WHITT skipped ahead to Section 17.
Section 17: Amends AS 11.61.123(f) to add
classifications for the crime of indecent viewing or
production of a picture (Page 8, Line 10 through 28).
MR. WHITT reviewed the penalties:
• Indecent viewing or production of a picture is a class B
felony if the victim is a minor;
• Indecent viewing or production of a picture is a class C
felony if the victim is a minor 16 years of age or over;
and
• Indecent viewing or production of a picture if the victim
is an adult is a class A misdemeanor.
MR. WHITT said Section 15 would provide a carve out for law
enforcement conducting their duties. Section 16 would provide a
defense for lawful surveillance systems or crime prevention for
prosecution. Section 18 would allow lawful interaction with a
child for physical or mental health reasons, he said.
2:08:39 PM
SENATOR SHOWER asked whether the defense provision established
in Sections 15-16 should state reproduction rather than
production or if the semantics matter if the material is being
reproduced.
MR. SKIDMORE answered no. He said he would like to verify the
definition of "production" to ensure that it is correct.
However, he offered his belief that production means any time
the image is produced, whether it is the first time or if it is
being "remade".
SENATOR SHOWER asked the record to reflect that a discussion
related to producing or reproducing photographs or images was
held.
2:10:15 PM
MS. LARGENT recapped the classifications for indecent viewing or
production of a picture. She reviewed the penalties for indecent
viewing or production of a picture in Version K. She reviewed
the penalty provisions for indecent viewing or production of a
picture:
• Indecent viewing of a minor is a class C felony;
• Indecent viewing of an adult is a class A misdemeanor;
• Indecent production of a picture of an adult is a class C
felony; and
• Indecent production of a picture of a minor is a class B
felony.
2:11:03 PM
SENATOR KIEHL said he appreciated that this provision addressed
concerns about parental consent that were raised during a prior
hearing. He asked for further clarification on how this would
affect 15-year old students sending and sharing naked selfies to
one another.
MR. WHITT explained that staff held discussions with the
Department of Law, including Ms. Largent, and the department
worked on carve out language to avoid charging minors for
sharing explicit images with one another. However, the feeling
was that allowing explicit images to be shared would be sending
the wrong message to teens. Secondly, the department indicated
it does not prosecute consensual sharing of images between two
minors as per advice from the [National Center for Missing and
exploited Children]. Further, this crime would be one that would
fall under the [Division of Juvenile Justice, Department of
Health and Social Services].
MS. LARGENT commented that she had nothing more to add.
MR. SKIDMORE confirmed that the conduct Senator Kiehl described
would be referred to the Division of Juvenile Justice. He added
that the DJJ's statistics indicate very few of these cases, in
the single digits, result in any action.
SENATOR KIEHL said he appreciated the "best practices" approach.
He asked what level of offense the department would not be
pursuing.
MR. SKIDMORE responded that it would be evaluated on whether
charges should be filed against a juvenile under the age of 16.
He elaborated that the department would consider whether it was
a private exposure, which means a person exposed a person's body
or part of a body in a place and under circumstances that the
person reasonably believed would not result in the person's body
or body parts being viewed by the defendant or produced in a
picture or produced in a photo. However, a person cannot have a
reasonable expectation that the photo was not taken if the
individual takes a selfie and sends it, he said.
SENATOR MICCICHE suggested more time might need to be spent on
this provision because he was not sure where the photos end up.
For example, these photographs could end up on a child porn
site. He hoped the activity would not ultimately be ignored and
that it would warrant the Division of Juvenile Justice (DJJ) to
take seriously that two underage individuals were sending
inappropriate photos to one another and not ignore it.
2:16:20 PM
CHAIR HUGHES asked Mr. Skidmore whether the situation of two
teenagers taking a private consensual photo and one sharing the
photo with a third person could be pursued with DJJ. She also
asked if other laws would apply if the photo were to appear on a
child porn site.
MR. SKIDMORE offered a two-phased answer. First, he reread the
definition of private exposure, which is "exposed a person's
body or part of a body in a place and under circumstances that
the person reasonably believed would not result in the person's
body or body parts being viewed by the defendant." If person (a)
did not reasonably believe that person (c) would view the photo,
he believed that the law would provide for prosecution.
MR. SKIDMORE said, secondly, the question would be whether the
photograph that was posted in some other location would qualify
as child pornography. Although he thought it was possible, he
recalled that the definition of child pornography must be
something slightly more than a photograph of a naked person. It
would need to be based on the facts plus he would aslo review
the definition of child pornography to make that determination,
he said.
2:19:17 PM
SENATOR MICCICHE expressed concern that some of these
photographs end up in suicides and other very serious
consequences. He related a scenario in which a teenage girl has
a boyfriend. She thinks she will marry him, so she decides to
send an explicit photograph of herself to her boyfriend. The
boyfriend subsequently shows it to the hockey team. That type of
behavior often destroys a teenage girl's life, he said.
He argued it should only be legal for adults to share explicit
photographs. He questioned whether the age of consent should be
16 years of age. He characterized this issue as unresolved and
problematic. Although he said he did not plan to hold the bill
up because of this provision, more work needs to be done.
CHAIR HUGHES asked for further clarification from Mr. Skidmore
on the above scenario.
MR. SKIDMORE agreed that the boyfriend sharing an explicit image
with the hockey team would result in criminal behavior because
the victim would have a reasonable belief that photograph would
not be viewed by another. He clarified that it would apply not
only to the viewing but also to production since the image was
passed on to the team.
2:21:12 PM
SENATOR MICCICHE said that what seems to be missing is a lack of
consequences for the initial production and distribution of the
image to another young person. Once the photo is distributed it
is too late because the damage is done. If the person is too
young to consent to sexual activity the individual should not be
able to consent to sexually explicit photographs, he said.
CHAIR HUGHES related her understanding that Senator Micciche
would like it to be a crime before the explicit photograph is
shown to the hockey team.
MR. WHITT referred to language on pages 22-23, line 9, to AS
47.17.020(e). He explained that language was added that relates
to criminal conduct. The department must notify the nearest law
enforcement agency if the department suspects criminal activity.
He said that subparagraph (A) lists a number of statutes that
this applies to, including AS 11.41.410-11.41.458 and AS
11.61.116. These statutes refer to sending an explicit image of
a minor, harassment in the first degree with contact over the
clothing, harassment in the second degree specifically with
photographs and pictures, indecent viewing or production of a
picture, and distribution of indecent material to minors.
Further, this provision specifically states, "including sex
offenses committed by a minor against a minor." He said that
when someone in the Department [of Health and Social Services]
becomes aware of this conduct, the person is required to report
it to the nearest law enforcement agency for further
investigation.
2:23:30 PM
At-ease.
2:29:59 PM
CHAIR HUGHES reconvened the meeting.
2:30:32 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law, Juneau, suggested
that some confusion might be arising from one change made to
Section 14, where the age of consent was raised from 13 to 16
years of age.
She said that the committee previously expressed concern that a
parent could consent to the private exposure of an older child.
[Under Version K] subsection (a) of Section 14 reads, "anyone
under the age of 16 cannot consent to the private exposure."
However, as Mr. Skidmore pointed out "private exposure" means a
person exposed a person's body or part of a body in a place and
under circumstances that the person reasonably believed would
not result in the person's body or body parts being viewed by
the defendant or produced in a picture."
MS. SCHROEDER said that definition could potentially imply
consent because the individual sending the image could not
reasonably expect others not to view the image. She suggested
that the committee could consider adjusting the language
"private exposure" to clarify that anyone under the age of 16
cannot consent. She suggested that would make Section 14 work
harmoniously.
CHAIR HUGHES clarified that had been her intention all along.
She said that she supports adjusting the language and the
definition.
SENATOR MICCICHE agreed but said he would like to see the
specific language. He suggested that teenagers ages 16 to 18
years might be smarter about what they are doing to themselves.
However, one could argue they might not be smarter. He related a
scenario that teenagers playing doctor is one thing but sending
the photograph to someone else could have much more significant
results. He reminded members of reports of suicides throughout
the U.S. because teens just do not think about the consequences
of their actions.
CHAIR HUGHES suggested that the Division of Juvenile Justice
could address this by creating a learning opportunity for the
young person. The person could learn the ramifications of what
that type of behavior would be for adults.
MR. WHITT skipped Section 18. The explanation reads as follows:
Section 18: Adds a new subsection AS 11.61.123(g) to
provide for exceptions crimes of Indecent Viewing or
Production of a Picture (Page 8, Line 29 through Page
9, Line 4).
2:34:02 PM
MR. WHITT reviewed Section 19.
Section 19: Amends AS 11.81.900(b) to add a new
paragraph defining semen (Page 9, Line 5 through 7).
He referred to a letter in members' packets from the Department
of Public Safety's forensic laboratory [dated February 26, 2019]
that had a scientific definition of semen. That definition was
added to Section 19.
2:34:49 PM
SENATOR KIEHL expressed his appreciation for the definition of
semen since the lab also answered questions on semen along with
the fact that there is not any lab test for vaginal secretions.
He thought it would be helpful to have the letter as part of the
packet for SB 12, which is a bill that would close the Justin
Schneider loophole. He characterized it as a very valuable
letter that could answer any potential equal protection
challenges.
2:35:28 PM
MR. WHITT reviewed Section 20.
Section 20: Amends AS 12.55.015 by adding a new
subsection specifying that in the cases of domestic
violence or sex crimes, there is a presumption by the
court of a no contact order (Page 9, Line 8 through
14).
MR. WHITT explained that this change was requested by Senator
Kiehl. The previous language had a presumption of a protective
order for any crimes, which was fixed with a reference to AS
12.63.100 and AS 18.66.990.
2:36:15 PM
MR. WHITT reviewed Section 21.
Section 21: Amends AS 12.55.125(i) to add conforming
sentencing guidelines for the crimes of unlawful
exploitation of a minor, indecent exposure in the
first degree, sexual abuse of a minor in the third
degree, and indecent viewing or production of a
picture (Page 9, Line 15 through Page 12, Line 23).
MR. WHITT explained that this provision would also increase
presumptive sentencing ranges for distribution of child
pornography. The presumptive sentencing ranges are listed in the
following sections of SB 35:
• Unlawful exploitation for a minor is referenced in Section
11.
• Indecent exposure in the first degree is listed in Section
12. Sexual abuse of a minor in the third degree is listed
in Sections 6 and 7.
• Indecent viewing or production of a picture as described in
Sections 14 and 17.
MR. WHITT referred to changes in Section 21, on page 11, line
12, that would increase the presumptive sentencing ranges for
distribution of child pornography.
2:37:32 PM
CHAIR HUGHES expressed concern that the penalties in Alaska may
be too lenient and might invite some unsavory people to Alaska.
She explained that those involved in the production and
development of child pornography websites should be punished
more harshly. SB 35 would toughen up penalties, she said.
MS. LARGENT asked the record to reflect that she, Senator Kiehl
and the Department of Law met with Sergeant Dunford who helped
educate them on peer-to-peer networks and mass distribution
schemes. She deferred to Sergeant Dunford to further explain.
2:40:13 PM
SERGEANT DUNFORD explained that peer-to-peer networks consist of
computers that share files. Other computers within the network
provide a table of contents for users to access and locate
specific files. The computer can make a direct connection and
share the file to the requesting computer. Other types of
networks share files in different ways, he said.
CHAIR HUGHES related her understanding that sharing information
located on these folders would not be considered "accidental."
She offered her belief that it could indicate a person is a
member of a pedophile ring.
SERGEANT DUNFORD clarified that he was referring to peer-to-peer
networks, in which computers are sharing files. He acknowledged
that people could accidentally download explicit images when
searching for music. However, if the person deleted the explicit
material and notified law enforcement, it would be an
affirmative defense.
CHAIR HUGHES asked for further clarification that sharing
folders would not be considered accidental and would indicate
nefarious activity.
SERGEANT DUNFORD explained that these networks have the ability
to efficiently receive and send files. If someone chooses not to
share, the system would throttle the computer's ability to
receive information, which encourages sharing. He acknowledged
that it would be clear to the user that the program is designed
to share files and the user agreement states the nature of the
program.
CHAIR HUGHES wondered what defense someone who did not intend to
download the explicit images would have. She asked the record to
reflect that the sites on the dark web are not registered. This
means a person who instituted a "Google" search would not pull
up the dark website. The user would need to know the specific
name of the dark website, she said.
2:45:08 PM
SENATOR KIEHL asked whether these sharing programs are the only
way that people receive images. He related his understanding
that other ways exist on the dark web to receive them.
SERGEANT DUNFORD answered yes. He referred to a 2015 study that
showed 60,092 specific URLs and 442 newsgroups contain child
sexual abuse images.
SENATOR KIEHL said he supports the approach. He said he thought
that the language in the bill was appropriate.
2:46:27 PM
SENATOR MICCICHE said he likes old Ford pickups and goes on
internet sites looking for photos and parts. He asked whether
that activity was similar to the peer-to-peer networks. For
example, he has posted photographs of his 1979 Ford on sites.
SERGEANT DUNFORD explained that when the person performs a
Google search on the internet to search for something specific,
such as a bezel for a headlight, the chances of the person
accessing one of the URLS on the dark web is unlikely. He
explained that as a person continues to search, the chances are
the topics will be less and less related and relevant.
SENATOR MICCICHE said that he participates in a group that likes
old trucks. He asked whether that would site would constitute a
peer-to-peer site. He was not concerned about inadvertently
accessing a dark web site. Instead he would like to better
understand if it is the same type of technology, he said.
SERGEANT DUNFORD answered no; that the type of registered site
Senator Micciche is using is not part of the dark web. That is a
registered site on the internet and not the dark web, he said.
CHAIR HUGHES asked whether the basic structure for the dark web
works in the same manner, even though Senator Micciche's site is
legit.
SERGEANT DUNFORD answered that the peer-to-peer networks work
differently. The files on the dark web are shared from computer
to computer. The photographs are sent to the webserver where the
form is kept, all of which is part of the dark web.
SENATOR MICCICHE related his understanding that someone who is
actively sharing explicit photos and child porn is someone who
is actively seeking out this material and it is not accidental.
SERGEANT DUNFORD answered yes, absolutely. He said evidence that
supports child pornography begins with the fact that these
images are on a secret computer. It indicates that people are
purposefully looking for these materials. He said that the
investigators also find evidence in the person's web browser
history. The evidence is not just an image on a computer, but a
compilation of the things that support that the person had an
interest in viewing images of sexually abused children.
2:52:15 PM
MR. WHITT reviewed Section 22.
Section 22: Amends AS 12.55.145(a) to add a new
subsection to specify that, for the purposes of
considering prior sentences when imposing a sentence
of imprisonment, a crime occurring in another state
that is similar to a crime in the state of Alaska is
considered a prior conviction (Page 14, Line 18
through 21).
MR. WHITT explained that this provision addresses a question
Senator Shower previously had related to consideration of prior
convictions.
2:52:56 PM
MR. WHITT reviewed Section 24.
Section 24: Amends AS 12.55.185(16) to add sexual
abuse of a minor in the third degree if the victim is
at least six years younger than the offender and
indecent viewing or production of a picture, to the
definition of "sexual felony" (Page 15, Line 16
through 25).
He said the language in Section 24 was changed during a previous
hearing. However, he anticipated that a forthcoming amendment
would change language on line 19, related to sexual abuse of a
minor in the third degree, to reference AS 18.41.438 and specify
that the victim is at least six years younger than the offender.
He characterized the proposed amendment as technical cleanup
language.
2:53:46 PM
MR. WHITT reviewed Section 25.
Section 25: Amends AS 12.61.050 by adding a new
subsection directing the Department of Corrections to
include in the Victim Notification System that victims
of domestic violence or sexual offenses shall be
informed of their rights to secure a protective order
and that certain state victim resources are available
to them (Page 15, Line 26 through [Page 16] Line 5).
He explained that Senator Kiehl requested this change, but
Senator Reinbold added the request that certain state victim
resources be made available to those victims.
2:54:42 PM
MR. WHITT reviewed Section 31.
Section 31: Amends AS 44.23.020(k) with specific
language change requests for the tool which will be
used that will be developed by the Department of Law
for tracking felony sex offenses (Page 21, Line 6
through 19 ).
MR. WHITT explained that this is cleanup language that the
committee previously discussed. It would direct the attorney
general in consultation with the Department of Public Safety to
develop certain tools to track sex offenses in the state.
2:55:26 PM
MR. WHITT reviewed Section 32.
Section 32: Amends AS 44.23.040(b) with specific
language to direct the Department of Law on data that
will be reported on sexual offenses in the state of
Alaska (Page 21, Line 20 through Page 22, Line 1).
He explained that that Section 32 was amended during a prior
committee, and it was conceptually amended by Senator Micciche.
This language has been incorporated in Section 32. It would
clean up four subsections of the bill related to the gathering
and reporting of data. In response to Chair Hughes, he agreed
that this issue was initially brought to the committee's
attention by the organization Standing Together Against Rape
(STAR).
2:56:07 PM
MR. WHITT reviewed Section 33.
Section 33: Amends AS 47.17.020(a) to require under
duty to report law, that if the harm against a child
appears to be the result of a suspected sex offense,
it must be reported to law enforcement (Page 22, Line
2 through 24).
MR. WHITT said he anticipated a forthcoming amendment to change
the word "and" to "or" so the person reporting can make the
determination, through training, to identify suspected sex
offense and report directly to law enforcement rather than to
two separate entities.
CHAIR HUGHES asked whether this would give the reporter a choice
or require them to report.
MS. LARGENT stated that the intent was to report suspected child
sexual abuse to law enforcement. However, the language in the
committee substitute, Version K, included an "and." This change
would not give the person reporting the offense a choice but
would allow the person to follow standard practices and
procedures when child abuse is suspected. However, if the
suspected abuse was sexual in nature it must be reported
immediately to law enforcement. She characterized this provision
as correcting a drafting error.
CHAIR HUGHES related her understanding that this would require
reporting suspected child abuse to law enforcement and not to
the Office of Children's Services (OCS). She emphasized that
this is important because incidents in schools should be
reported to law enforcement officers and not to a principal or
OCS.
MR. WHITT clarified that the language requires the person to
immediately report any suspicions of sexual offenses regarding
children. He indicated the language on line 6 reads, "shall."
MS. LARGENT added that this would not create a substantial
change in process. Reports of neglect or abuse can currently be
made either to the Department of Health and Social Services
(DHSS) or to a local police officer. Currently, mandatory
reporters, including those involved in film, internet services,
or photographs, who see sexual exploitation of children must
immediately report it to law enforcement. This effectively would
bring other sexual abuse of a minor reports in line with that
requirement.
3:00:07 PM
CHAIR HUGHES said that not only would people be required to
report to law enforcement, but this provision would also include
"sending explicit images of a minor, harassment in the first
degree, sexual harassment in the second degree, indecent viewing
or photography, [and] distribution of indecent material to a
minor."
SENATOR MICCICHE said that he supports the proposed amendment as
it currently reads. He expressed concern that in some parts of
the state people will not report or are less likely to report to
law enforcement. He said at least some reporting would occur
under the current requirements. He said, "Peter Miller raped
babies for 30 years." He offered his belief that if people had
concerns, they would likely report them to the department. He
also thought they would report suspected sexual offenses to law
enforcement. He thought that the current language would increase
the probability that at least some reporting would happen.
3:01:37 PM
SENATOR SHOWER asked for further clarification on the department
that would receive the report. He read, "immediately report harm
to the nearest office of the department."
CHAIR HUGHES answered it would be the Department of Health and
Social Services (DHSS).
MR. WHITT confirmed it was defined in statute.
SENATOR KIEHL asked whether the Office of Children's Services
could testify on the shift in the approach from DHSS to law
enforcement.
3:02:46 PM
NATALIE NORBERG, Director, Office of Children's Services,
Central Office, Department of Health and Social Services,
Juneau, said that the department initially had some concerns
about double reporting. However, she also shared Senator
Micciche's concern. She suggested that it would be better to
have both ways to report these suspected crimes because the OCS
has a centralized reporting system. Since the OCS has
implemented a statewide hotline, it has seen an increase in the
number of reports. It really shows that a simple, centralized
reporting system lends itself to being very effective. However,
figuring out who to call and what number to call could be
confusing and result in fewer reports. The OCS had concerns that
mandated reporters may be calling different jurisdictions on
children since children could be seen by a provider in a
different region of the state than where they normally live
because of travel. She reiterated that it would be better to
have overreporting than trying to address the concern that
reports might not be made.
CHAIR HUGHES noted that Ms. Norberg and Senator Micciche both
preferred "and".
3:04:30 PM
SENATOR KIEHL asked whether any situations occur in which law
enforcement is not called when reports of harm are made or
conversely, where law enforcement is called but OCS is not
informed.
MS. NORBERG explained that there are times when the department
and law enforcement are called separately. She said the statutes
provide a clear process and that process is the department's
current practice. She said that if the OCS receives a report of
sexual abuse or a medical issue, and the child's abuser is
outside the family, the department will automatically notify law
enforcement. However, if law enforcement receives a report but
the victim is not related to the perpetrator, the OCS would not
be notified.
CHAIR HUGHES asked whether the centralized call-in line is
manned 24-7.
MS. NORBERG answered no. Currently, two shifts provide
approximately 14 hours of coverage. However, the OCS is working
to expand it to 24/7.
CHAIR HUGHES affirmed that it would be important to have the
call to law enforcement for that reason. She pointed out that
sometimes the window for collection of evidence is limited.
3:06:19 PM
SENATOR MICCICHE said he has researched this due to a recent
case. He highlighted that in some parts of Alaska local law
enforcement do not actively pursue certain cases. He maintained
his strong support for double reporting, which would help. The
OCS would ensure that the information is appropriately used. He
reminded members that it is the legislature's job to be sure
everyone is treated the same. This provision would make it more
likely for that to occur.
3:07:13 PM
CHAIR HUGHES said that leaving in "and" would increase the
chances of reporting. It would also increase the likelihood of a
response to that report. She noted that a proposed amendment was
developed to address the concern about double reporting, but it
may not be offered. Since Senator Micciche has withdrawn that
concern, she felt satisfied in leaving in the word "and." She
said she did not hear any objection at this point.
SENATOR KIEHL asked whether adding the word "and" would mean
that the OCS would start receiving calls on suspected sex
offenses by offenders not related to the victim. He asked
whether the OCS will inform law enforcement. He asked for
further clarification on how the OCS would handle the increased
volume of calls.
MS. NORBERG answered that under the current law, the OCS would
continue to receive all reports, including any child abuse
regardless if a parent, a non-parent, or a caregiver is the
perpetrator. The OCS has dedicated, trained, skilled staff to
speak to the person reporting. She highlighted that staff does
not investigate or make solo decisions when child abuse is
reported. This language would require additional reporting to
law enforcement if sexual abuse was reported.
CHAIR HUGHES clarified that a number of sexual crimes were
already on the mandatory reporting list and this provision added
additional crimes, as well as the law enforcement contact.
3:09:59 PM
MR. WHITT skipped Section 34. The explanation of changes read as
follows:
Section 34: Amends AS 47.17.020(e) with conforming
language for the added provisions in Section 33 (Page
22, Line 25 through Page 23, Line 9)
3:10:38 PM
MR. WHITT reviewed Section 35.
Section 35: Amends AS 47.17.020(g) with conforming
language for the added provisions in Section 33 (Page
23 Line 10 through 15).
He said that if an amendment is not offered to Section 33,
Section 35 would need to be amended. He explained that the word
"or" would need to be amended to "and" in this section to
conform to Section 33.
CHAIR HUGHES suggested that Senator Micciche could make a
conceptual amendment when the committee considers amendments.
3:10:51 PM
MR. WHITT reviewed Section 36.
Section 36: Amends AS 47.17.022(b) to add a
requirement for in-service training to recognize
possible sex offenses, for those occupations or
positions described in Section 33 (Page 23, Line 16
through 25).
MR. WHITT explained that a forthcoming amendment would be
offered to remove "in service." He related his understanding
that resources were available that are more efficient to provide
that training. Although it would not be cost prohibitive to have
face-to-face training, there were more cost-efficient ways to
provide it.
3:11:45 PM
MS. NORBERG responded that currently the OCS provides mandated
training through an online training module, which can easily be
updated to add new components. The OCS believes it would be more
efficient to offer the training online rather than during an
annual in-person staff training session. She pointed out that
this training is for department staff and school district
employees. She said that providing online training to all
reporters would have a wider impact. In response to Chair
Hughes, she agreed that the training can be accessed by the
school districts, but sometimes the districts use their own
training.
3:12:57 PM
MR. WHITT reviewed Section 37.
Section 37: Adds a new paragraph to AS 47.17.290 for
the definition of sex offense (Page 23, Lines 26 &
27).
MR. WHITT reviewed Section 39.
Section 39: Changes made to the applicability section
to conform with changes in the bill (Page 23, Line 29
through Page 24, Line 28).
MR. WHITT reviewed Section 40.
Section 40: New section added for the Department of
Law and Department of Public Safety to adopt necessary
regulations for the implementation of sections 31 and
32 (Page 24, Line 29 through Page 25, Line 4).
He explained that this change was at the request of Chair
Hughes.
3:14:02 PM
SENATOR KIEHL said he was still interested in hearing from the
public defender about the change in mental state in Sections 2
and 3 of the bill for sexual assault in the second and third
degrees.
CHAIR HUGHES said the public defender was not available today.
3:14:57 PM
SENATOR MICCICHE offered his belief that it was not necessary to
change Section 35 from "or" to "and." He explained the committee
preferred the language "and" remain in Section 33, subsection
(a). He noted that Mr. Whitt suggested that Section 35 would
need to be amended. However, the "as required under subsection
(a) of this section" seemed to be adequate to ensure that it be
reported. He asked Mr. Skidmore if he could advise if that would
suffice.
MR. SKIDMORE answered that it would depend on the committee's
intent. He said that "or" would allow the mandatory reporter to
report to either the department or a law enforcement agency. If
the language read "and," it would require reporting to the
department and to a law enforcement agency.
3:17:03 PM
CHAIR HUGHES asked whether he would review the language "and" in
Section 33 and determine whether "or" would suffice in Section
35.
MR. SKIDMORE said that the language seemed inconsistent. He
offered his belief that in both instances it should read "and"
or else "or" to be consistent.
SENATOR MICCICHE explained that Section 33 contains both "and"
and "or." It becomes an "and" in instances of suspected sex
offenses. However, Section 35 refers to the requirements in
subsection (a). He interpreted it to mean reports must be made
to the department and a law enforcement agency as required in
subsection (a), which would mean "or" would be correct. He
offered his belief that "and" would counter Section 33.
MR. SKIDMORE said that he would need more time to review the
language in Sections 33 and 35 to figure out how they work
together. He was not prepared to give the interpretation on the
fly, he said.
MR. WHITT deferred to Ms. Norberg.
MS. NORBERG offered her belief that the language needs to change
to read "and" a law enforcement agency as required under
subsection (a) of this section.
3:20:14 PM
SENATOR MICCICHE argued that subsection (a) does not require
reporting to law enforcement for suspected child abuse. It would
only need to be reported when suspected sexual abuse of a child
occurred. He said "and" would require reporting to both agencies
which may cause a conflict between these two sections.
3:20:56 PM
CHAIR HUGHES asked Mr. Skidmore to consider the language in both
sections.
3:21:16 PM
SENATOR SHOWER referred to Section 5. He asked if it would be a
valid defense if someone has the paperwork in hand.
MR. SKIDMORE clarified that his question was related to the
marriage defense and if the party were to prove the marriage and
had not filed for separation, divorce, or dissolution and
whether that was enough to be a complete defense.
SENATOR SHOWER clarified it was whether either party has filed.
MR. SKIDMORE said the act of filing does not allow the defense.
The rationale is that once one party has filed for a change in
marital status, it puts the couple or parties in a contentious
situation. The defense was limited to situations in which both
parties wanted to be together. The defense would apply if one
person is a law enforcement officer or works as a probation
officer or other position in which the the state would normally
find sexual activity unacceptable. However, if the parties are
married, law enforcement would not interfere with marital
relations. He clarified that the filing would mean the defense
would no longer apply.
3:24:32 PM
CHAIR HUGHES removed her objection. There being no further
objection, the committee substitute (CS) for SB 35, work order
31-GS1873\K, Version K, was adopted.
3:24:49 PM
At-ease.
3:25:35 PM
CHAIR HUGHES reconvened the meeting.
[SB 35 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB35 Version K.pdf |
SJUD 4/5/2019 1:30:00 PM |
SB 35 |
| CSSB35 Explanation of Changes from Version U to K v2.pdf |
SJUD 4/5/2019 1:30:00 PM |
SB 35 |