Legislature(2019 - 2020)BELTZ 105 (TSBldg)
04/08/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB35 | |
| SJR5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 35 | TELECONFERENCED | |
| + | SJR 5 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 35-CRIMES;SEX CRIMES;SENTENCING; PAROLE
1:35:34 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."
CHAIR HUGHES remarked that she hoped to move SB 35 from
committee today.
1:37:48 PM
SENATOR REINBOLD asked whether Mr. Duxbury was familiar with SB
35, Version K.
MICHAEL DUXBURY, Deputy Commissioner, Office of the
Commissioner, Department of Public Safety (DPS), Anchorage, said
he did not have Version K before him. He said that he is in
consultation with the special assistant for the Department of
Public Safety and based on her information he is in agreement.
1:39:09 PM
KELLY HOWELL, Special Assistant; Legislative Liaison, Department
of Public Safety (DPS), Anchorage, stated that the department
does not see any red flags.
1:39:35 PM
SENATOR REINBOLD offered her belief that the bill was an
improvement. She asked whether the department had taken a
position on SB 35.
MS. HOWELL answered that she can not speak for the governor's
office, but the department is generally supportive of the bill.
1:40:15 PM
JOHN SKIDMORE, Director, Criminal Division, Central Office,
Department of Law, Anchorage, stated that the administration was
in support of Version K of SB 35.
CHAIR HUGHES congratulated Mr. Skidmore on his promotion to
Deputy Commissioner.
MR. SKIDMORE thanked her. He said that he will not assume the
position as the Deputy Attorney General, Criminal Division,
Department of Law until May 16.
1:41:40 PM
SENATOR KIEHL asked about the change from knowingly to reckless.
He asked whether the change in mental state causes strong
concerns about justice and the likelihood of inappropriate
convictions.
1:42:25 PM
SENATOR SHOWER joined the meeting.
1:42:34 PM
SENATOR KIEHL asked whether the public defender agency sees the
change as something that will lead to higher costs. He wondered
if it would lead to more jury trials. Finally, he wondered how
this would interact with threshold cases, such as when a victim
is in the early stages of dementia or has developmental
disabilities.
1:43:13 PM
QUINLAN STEINER, Director, Public Defender Agency, Central
Office, Department of Administration, Anchorage, said he has
concerns about the changes in the bill related to mens rea for
sex offenses, especially when combined with the changes made to
the elimination of the marriage defense. Simply put, these
change the mens rea from knowingly to recklessly. This means
that someone can have an honestly held belief that someone is
not mentally incapable, incapacitated, or unaware and still be
subject to prosecution. This is particularly problematic with
the removal of the marriage defense without replacing it with a
consent defense. This version of the bill would criminalize
typical conduct between married couples or people in
relationships. He predicted it would lead to the prosecution of
people that one would not want charged or prosecuted.
He predicted it would drive up costs of litigation. He said it
makes it more difficult to understand the line between criminal
and non-criminal behavior. It is especially difficult when
individuals have dementia or are consuming alcohol. He said it
is important to recognize that the belief that prosecutors will
use their discretion and not charge cases should not be the
basis for not being more specific about what is criminalized.
There are many state prosecutors with a range of points of view
on who should be prosecuted based on the definition in statute.
He said the language has been broadened to the extent that
convictions and prosecutions can be expected. Further, a person
may actually consent to certain conduct, which will still be
considered criminal conduct, even though the person fully
consented.
1:45:58 PM
CHAIR HUGHES asked Mr. Skidmore for further clarification.
MR. SKIDMORE identified the two issues presented. The first
issue is related to resources, and the second one is related to
changing the mens rea for sexual assault as it relates to
mentally incapable, incapacitated, or individuals unaware that a
sex act is occurring and the interaction with the elimination of
the marriage defense.
MR. SKIDMORE agreed that some additional sexual assault cases
involving victims who are mentally incapable, incapacitated, or
unaware would be prosecuted, but it would be difficult to
quantify the number at this time. He said he did not believe
that a substantial increase in resources would be required or
that the changes would result in unwanted prosecutions. He said
the definition of reckless found in AS 11.41.900(a)(3) says that
a person has to be aware of and consciously disregard a
substantial and unjustifiable risk that the results will occur,
or the circumstances exist. The scenario the public defender
described was of a married couple with one suffering from a
mental issue that resulted in impaired functioning. This
language would require the partner without dementia to be aware
of and consciously disregard a substantial and unjustifiable
risk that the other person was suffering from a mental
debilitation. The definition goes on to say that the risk must
be of such a nature and degree that the disregard constitutes a
gross deviation from the standard of conduct that a reasonable
person would observe in that situation. Although the state might
prosecute additional cases, he did not agree with the public
defender that they would be unwarranted arrests.
1:50:06 PM
SENATOR REINBOLD remarked that changing the standard from
knowingly to reckless was really important.
1:50:37 PM
KACI SCHROEDER, Assistant Attorney General, Central Office,
Criminal Division, Department of Law, Juneau, said that she
concurred with Mr. Skidmore's analysis.
1:51:57 PM
CHAIR HUGHES moved to adopt Amendment 1, work order 31-
GS1873\K.1, Radford, 4/4/19, which read as follows:
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "K"
Page 15, lines 20 - 21:
Delete "if the victim is at least six years
younger than the offender"
Insert "under AS 11.41.438(c)"
SENATOR SHOWER objected for discussion purposes.
BUDDY WHITT, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, explained that Amendment 1 was a conforming
amendment. He referred to Section 24 and read the amendment.
This would reference the criminal statute AS 11.41.438(c) to
clear up any ambiguity, he said.
1:52:21 PM
SENATOR SHOWER removed his objection. There being no further
objection, Amendment 1 was adopted.
1:53:22 PM
CHAIR HUGHES moved to adopt Amendment 2, work order 31-
GS1873\K.3, Radford, 4/4/19, which read as follows:
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "K"
Page 23, line 22:
Delete "in-service"
SENATOR SHOWER objected for discussion purposes.
1:53:34 PM
MR. WHITT referred to Section 36 on page 23, line 22 of SB 35,
Version K. He explained that Amendment 2 relates to the
additional annual training for mandatory reporters of possible
sexual offenses against children implemented in Sections 33-35.
He said the committee was informed that the department had the
means to provide computer-based training, but the term in-
service implies face-to-face training.
SENATOR SHOWER removed his objection. There being no further
objection, Amendment 2 was adopted.
1:54:46 PM
CHAIR HUGHES moved to adopt Amendment 3, work order 31-
GS1873\K.4, Radford, 4/6/19, which read as follows:
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "K"
Page 11, line 19, following "mechanism,":
Insert "10 - 25 years;"
Page 11, lines 20 - 22:
Delete all material.
SENATOR SHOWER objected for discussion purposes.
1:54:54 PM
MR. WHITT said that Amendment 3 is a technical amendment that
removes redundant language that Senator Kiehl identified. He
explained that if a second offense occurs, it would be addressed
by language on lines 25-26 of version K.
SENATOR SHOWER removed his objection. There being no further
objection, Amendment 3 was adopted.
1:56:07 PM
CHAIR HUGHES moved to adopt Amendment 4, work order 31-
GS1873\.K.5, Radford, 4/6/19, which read as follows:
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "K"
Page 25, following line 11:
Insert a new bill section to read:
"* Sec. 44. Section 33 of this Act takes effect
September 1, 2020."
Renumber the following bill section accordingly.
Page 25, line 12:
Delete "secs. 42 and 43"
Insert "secs. 42 - 44"
SENATOR SHOWER objected for discussion purposes.
MR. WHITT referred to page 25 of Version K. He stated this would
add a new effective date of September 1, 2020, specifically
related to the training requirements in Section 3 of SB 35,
Version K. This would allow the department sufficient time to
prepare training prior to the start of the school year.
SENATOR SHOWER removed his objection. There being no further
objection, Amendment 4 was adopted.
1:56:50 PM
CHAIR HUGHES moved to adopt Amendment 5, work order 31-
GS1873\K.6, Radford, 4/6/19, which read as follows:
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "K"
Page 23, line 14:
Delete "the report to the department or a law
enforcement agency as"
Insert "a [THE] report [TO THE DEPARTMENT AS]"
SENATOR SHOWER objected for discussion purposes.
MR. WHITT said that Senator Micciche brought this technical
amendment to the committee's attention. He explained that
Amendment 5 would clean up the language on page 23, line 14 of
SB 35, Version K. It would read, " obligation to make a report
as required under (a) of this section."
SENATOR SHOWER removed his objection. There being no further
objection, Amendment 5 was adopted.
1:57:59 PM
CHAIR HUGHES opened public testimony on SB 35.
1:58:38 PM
BETH FREAD, representing herself, Palmer, spoke in support of SB
35, as amended. She said she appreciated the work the committee
did on SB 35.
1:59:44 PM
KEELEY OLSON, Executive Director, Standing Together Against Rape
(STAR), Anchorage, spoke in support of SB 35. Although she has
not had an opportunity to review the new bill draft, STAR would
support removing the defense of marriage and the changes to
sexual assault in the second degree. For example, she worked
with a woman who was raped by her spouse when she was on
prescription medication after gynecological surgery. The victim
had to have subsequent emergency surgery. Her spouse was aware
that she was not to engage in any sexual activity. This is one
example of several that have occurred in Anchorage, she said.
She commended the language in the bill that would increase and
enhance statutes concerning the use of technology for sexual
solicitation of minors. She stated support for returning
sentencing levels to pre-Senate Bill 91 levels, which should
enhance victim safety. She stated further support for having sex
offenders from other states register as sex offenders.
MS. OLSON expressed concern with language changes on page 22 of
Version K, [to AS 47.17.020(a)] that requires that mandated
reporting be made to local law enforcement agencies, as well as
to the department. She asked for further clarification on that
language since a process already exists for mandated reporting.
She emphasized that reporting is considered a sworn duty and the
organization trusts that the information is being relayed to the
law enforcement agency or to the jurisdiction where the crime
occurred, which is often not the same location.
2:03:06 PM
CHAIR HUGHES characterized the changes in mandatory reporting as
casting a wider net as a result of situations that have occurred
in the schools with teachers and minors. This alerts the parties
that besides reporting suspected sexual crimes to the
department, the suspected sex offenses must also be reported to
the nearest law enforcement agency. She expressed concern that
some crimes may be reported to the principal and this language
ensures that law enforcement is also informed.
She thanked Ms. Olson for her input and suggestions. She said
that one issue that was not changed is the consent language. She
explained that Mr. Skidmore will work with the committee on this
issue during the interim. She acknowledged that the language is
archaic and needs to be fixed. However, the project is
significant since it will have a domino effect. Mr. Skidmore is
committed to researching this since other states have worked on
it and Alaska can avoid some of their mistakes. She said she
hoped to address this in January.
CHAIR HUGHES related that the organization Community United for
Safety and Protection requested legislators amend the House
version of SB 35 to address police officers engaging in sexual
conduct during investigations. She said this seemed quite
alarming, but in conversations with law enforcement she learned
that laws currently exist to prosecute officers who commit such
crimes, and that this type of behavior is not condoned by either
local law enforcement or the Alaska State Troopers.
MS. OLSON responded that STAR is not aligned or engaged with
that citizens' group. She surmised that this group has an agenda
to decriminalize sex work and disregards any harm that may be
caused by human trafficking. She said that STAR has been
involved in several cases where local law enforcement personnel
engaged in sexual misconduct, including former Anchorage Police
Officer Anthony Rollins [who was convicted in 2011].
She offered her belief that the response from local law
enforcement was stellar in regard to protecting and working with
the victims to hold former officer Rollins accountable. She said
she has heard anecdotally that the organization told people not
to seek assistance from STAR. She emphasized that STAR would
always be available for anyone in the community who was harmed.
She said that STAR would make victims aware of available
resources and their rights. No one should be subjected to sexual
violence, she said. She further emphasized that STAR is not
aware of any of the cases that group alleges occurred or any
activity or pattern it attests is typical. That has not been
STAR's experience, she said.
CHAIR HUGHES remarked that if any such pattern exists, Alaska
has laws to charge any officer engaged in illegal activity. She
asked Deputy Commissioner Duxbury to speak to the Community
United for Safety and Protection group. She asked whether an
amendment was needed.
2:08:54 PM
MICHAEL DUXBURY, Deputy Commissioner, Office of the
Commissioner, Department of Public Safety (DPS), Anchorage, said
that he has been associated with the Alaska State Troopers for
approximately 30 years. He has spent considerable time working
undercover, and he has also served as the supervisor of many
undercover operations. He echoed Ms. Olson's succinct testimony.
He said that he participated in the investigation of former
officer Rollins. He confirmed that current statutes provide a
means to prosecute these types of crimes.
He emphasized that Alaska State Troopers never engage in one-on-
one operations related to illegal sex crimes. He said that the
department's focus is always on the underlying criminality and
the people involved in the crime. He said that everyone working
in those covert operations is monitored by surveillance, in
conjunction with the district attorney, or with the U.S.
Attorney's office. Further, a high-level supervisor, the next
level supervisor, and the line supervisor would all be involved.
He said that these are dangerous situations with the criminal
milieu behind the scenes and in that type of lifestyle. He said
he has heard the supposition that these operations are one-on-
one situations. In order for these allegations to be true, it
would mean that the department had extensive corruption. He
reiterated that laws are in place to prosecute any rogue officer
who engaged in that criminal activity. He stressed that an
officer engaging in that type of criminal behavior is abhorrent
to professional law enforcement. He said that the department and
the troopers hold up integrity and trust to the public.
CHAIR HUGHES asked the record to reflect his testimony to inform
the public that laws exist to address this and the importance of
integrity among law enforcement personnel.
2:13:08 PM
RODGER BRANSON, representing himself, Eagle River, spoke as an
advocate of mental health services. He said he wanted to know
about any subversive activity in Palmer.
CHAIR HUGHES asked him to submit specific questions to Mr.
Duxbury via her office, but to limit his testimony to SB 35.
MR. BRANSON said he wanted to ensure that the bill would protect
everyone. He said he would be concerned about relying on STAR to
determine illegal activity since they could perhaps turn away a
victim. He said the committee is doing "some awesome work that
needs to be done," but he wants to ensure that [the bill]
protects the people who need to be protected.
2:15:05 PM
CHAIR HUGHES, after first determining no one wished to testify,
closed public testimony on SB 35.
2:15:18 PM
SENATOR REINBOLD expressed her thanks for the work on this bill.
She said she was pleased that SB 35 has become a more victim-
centered bill. She emphasized that she supports strengthening
criminal law related to sexual assault.
2:15:52 PM
SENATOR KIEHL expressed his thanks for the work on this bill. On
the whole it is really good legislation and provides additional
tools and resources for victims, he said. He expressed
appreciation that the bill would eliminate the marriage defense.
However, while the bill contains many good changes, it also
increases the severity of the offenses that will use public
safety resources. He offered his belief that increased penalties
were unlikely to make a difference. Changes that will apprehend
offenders not previously being caught are excellent ones, he
said. He argued that penalties for some crimes were not on par
with penalties for other crimes. He predicted those increased
penalties would cost money to implement, but it would not
improve public safety. He supported the intent language for more
proactive work on Internet crimes against children because these
provisions will catch criminals and help reduce the number of
victims. He emphasized that Internet crimes against children are
important ones to focus on and to use criminal justice system
resources. Those are the most important changes this bill makes,
he said.
He predicted that some provisions in the bill will be litigated.
He concurred that sex offenders who have committed sex offenses
that are crimes in Alaska should be on a sex offender registry.
However, the language in the bill also captures people who
committed offenses in another jurisdiction that are not
considered criminal offenses in Alaska. The Alaska Supreme Court
has reviewed the Constitution of the State of Alaska and has
acknowledged the punitive element for those on the sex registry.
He offered his belief that it is unconstitutional to punish
people whose behavior is not a crime in Alaska. He said he hopes
that as the bill moves forward this issue would be addressed so
that strong public protections are met, and the state does not
waste time in court.
SENATOR KIEHL stated support for eliminating the marriage
defense, which is a good provision. However, he said that
combining it with the change in mental state for the crimes of
sexual assault in the second degree and sexual assault in the
third degree worries him. He recalled that Mr. Skidmore read the
definition of reckless. He offered his belief that this would
create an ambiguous line. For example, it may be difficult to
determine criminal behavior for marital relations when a couple
has been married for a long time, but one partner develops
dementia or has an early onset Alzheimer that gradually worsens.
He agreed that the knowing standard is very clear, but this
language also includes sexual contact. He emphasized the need to
catch the "bad actors," but he had concern that combining the
two changes would create some real problems. He said he is
anxious to move SB 35 forward, but he believes that it could use
additional work.
2:20:39 PM
SENATOR MICCICHE thanked the committee for its work on this
bill. He questioned how long the state needed to be listed as
number one in the nation for the most sexually abused children
before it remedies the issue. Since these crimes are increasing,
he expressed his support for increasing the severity of the
penalties for sexual assault crimes.
He said that there is only one way to break the cycle. In many
communities Alaska's perpetrators have been known for decades.
For example, he said that Peter [Wilson] allegedly raped
children for years before he killed 10-year-old Ashley [Johnson-
Barr]. In terms of the registry, he said some of these acts
should have been made crimes in Alaska years ago. For example,
the acts Justin Schneider committed should have been a crime.
Alaska is just now recognizing that some state criminal justice
systems are more advanced than in Alaska. Many of these states
have a far lower incidence of sexual abuse and sexual assault,
he said. Children can be destroyed emotionally and
physiologically. These children may later act out, so the cycle
continues, he said. Not only do the children and their families
pay with a diminished quality of life, but the state pays in
almost every category in the budget. If these victims ever
normalize, it would come after years of counseling. This bill
attempts to address all of the issues the state is battling,
including opioid abuse, alcoholism, suicide, domestic violence,
and sexual assault. He said he wholeheartedly supports moving
the bill forward.
2:23:13 PM
CHAIR HUGHES said when gauging whether public safety is improved
by increasing the severity of penalties, it is important to
remember the statistics for sexual offenses. However, one reason
the recidivism rates are low is due to the strict structure and
the containment model used. The number of years sex offenders
are incarcerated helps keep the reoccurrence low, she said. She
said that she spoke with Alaskans about suicide prevention in
her office recently. Part of getting to the root of the problem
is "calling things what they are." The state has many children,
teens, and adults who have been harmed. In some ways the victims
suffer lifelong pain that could be considered worse than death.
She said that in terms of Senator Kiehl's concerns about the
marriage defense and the change in the standard of defense,
prosecutors will target the bad guys. She said she did not share
his concern that problems would surface.
CHAIR HUGHES said that considering the horrific crimes that
children suffer has made her cognizant of the prosecutors who
work in the field. She asked members to give prosecutors "a
shout out" because they deal with these victims daily. She said
she hopes the tools [in SB 35] will be helpful. She acknowledged
that it is not possible to eradicate evil with good policy, but
she hopes that the legislature can help deter it. She
acknowledged that additional work needs to be done regarding the
consent language and on other issues that may surface. She
looked forward to working with the department on these issues.
2:26:47 PM
SENATOR REINBOLD moved to report the committee substitute (CS)
for SB 35, work order 35-GS1873\K as amended, from committee
with individual recommendations and attached fiscal note(s).
There being no objection, CSSB 35(JUD) was reported from the
Senate Judiciary Standing Committee.
CHAIR HUGHES asked the record to reflect that the Legislative
Legal Services, Legislative Affairs Agency, was authorized to
make any technical and conforming changes in order to implement
the adopted amendments.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJR 5 Transmittal Letter.pdf |
SJUD 4/8/2019 1:30:00 PM SSTA 3/28/2019 3:30:00 PM |
SJR 5 |
| CSSJR 5 Version U.PDF |
SJUD 4/8/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| SJR 5 - CSSJR 5(STA) ver U Sectional 4.8.19.pdf |
SJUD 4/8/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| SJR 5 - CSSJR 5(STA) - Comparison 4.8.19.pdf |
SJUD 4/8/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| SJR 5 Fiscal Note GOV-DOE.pdf |
SJUD 4/8/2019 1:30:00 PM SSTA 4/2/2019 3:30:00 PM SSTA 4/4/2019 1:30:00 PM |
SJR 5 |