Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/16/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB58 | |
| SB72 | |
| SB11 | |
| SB39 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 58 | TELECONFERENCED | |
| += | SB 72 | TELECONFERENCED | |
| *+ | SB 11 | TELECONFERENCED | |
| + | SB 39 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 72-CRIMES INVOLVING MINORS/STALKING/INFO
1:34:01 PM
CHAIR FRENCH announced the consideration of SB 72. He asked Ms.
Carpeneti to continue the sectional analysis, starting with
Section 8.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL), said Section 8 is a conforming
amendment to clarify that the sexting provisions in Section 7
aren't included in the crime of harassment in the second degree.
1:35:15 PM
Section 9 makes two amendments to the crime of distribution of
indecent material to minors. First, it clarifies the culpable
mental state that the state must prove in order to convict a
person of the offense. It provides that the person must know
that the material he or she distributed depicts the prohibited
conduct. Second, it clarifies that if the minor to whom the
material is sent is under age 16, the person who sent the
material was reckless as to that circumstance.
SENATOR PASKVAN noted that the term "lewd" is included as an
adjective in this section to specifically describe "touching"
and "exhibition." He asked what the mental status is for "lewd."
MS. CARPENETI replied it would be the circumstance of
"reckless." The person would have to know that the material
included the "lewd" touching of a person's genitals, anus, or
female breast.
SENATOR PASKVAN said he didn't understand what the term "lewd"
means in that context.
1:37:55 PM
MS. CARPENETI replied that's a question for a jury; it's not
defined in the statutes.
SENATOR WIELECHOWSKI asked if the bill applies to cartoon
characters.
MS. CARPENETI answered no.
1:38:19 PM
CHAIR FRENCH noted a letter dated today from the American Civil
Liberties Union (ACLU) pointing out that there is a preliminary
injunction, on First Amendment grounds, against this section.
Mr. Mittman says that Section 9 of the bill would narrow AS
11.61.128(a) "to only criminalize the distribution of material
'harmful to minors' by an adult if the recipient is under 16
years old and the adult is reckless regarding the recipient's
age… ." Mr. Mittman goes on to say that the bill is an
improvement on the statute that was enjoined, but it would still
violate both the First Amendment and the Commerce Clause of the
U.S. Constitution. Senator French asked Ms. Carpeneti if DOL is
in communication with Mr. Mittman on this topic.
MS. CARPENETI replied they have been in communication with
Michael Bamberger, an attorney who is working with the litigants
in this case. She added that she had not been in communication
with Mr. Mittman, but she had spoken to him.
1:39:42 PM
CHAIR FRENCH said he wasn't inclined to ask the ACLU to write
the statute, but they did win an injunction so there has to be
some accommodation.
MS. CARPENETI said both sides have filed motions for a summary
judgment, but the court hasn't issued an opinion.
CHAIR FRENCH asked how long the motions have been pending.
MS. CARPENETI said she'd find out, but she believes they're
fairly recent.
SENATOR COGHILL asked if the amended language regarding
"reckless disregard for the age of the child" would be a second
line of proof.
MS. CARPENETI answered it would require the state to prove that
the child was under age 16 and the person distributing the
material was reckless as to that fact. "Reckless" is defined in
the statutes as knowing there is a high probability that the
person would be under age 16 and knowingly disregarding that
fact.
SENATOR COGHILL said he was trying to figure out why "reckless
regard" was used instead of "ignoring" or "disregard."
1:41:39 PM
CHAIR FRENCH explained that it's easier to prove than
"intentional."
MS. CARPENETI said this is the crux of the lawsuit. The argument
is that the state would have to prove that the person who is
distributing the material knows that the person is under age 16.
DOL uses the culpable mental state of "reckless disregard"
because it's a lower standard. However, it still requires the
state to prove that the person knew that there was a substantial
risk that the person was under age 16 and knowingly disregarded
that risk.
SENATOR COGHILL surmised that this is because it's so easy for
people to get false IDs.
CHAIR FRENCH said he believes it's less than that; you seldom
ask for identification from anyone you communicate with, but you
have a general idea of their age.
SENATOR WIELECHOWSKI asked why the court said this violated the
First Amendment.
MS. CARPENETI said she would follow up and provide that
information.
1:43:48 PM
MSL CARPENETI continued with the analysis. Section 10 adds two
new crimes to the criminal code dealing with misconduct
involving confidential information in the first and second
degrees. This is not specific to children but it fits with the
theme of using new technology to victimize people. She mentioned
merchants that ask for a driver's license and then use the
information, sometimes to commit a crime; and new technology
that collects personal identification and credit card
information from a person's satchel, backpack, or purse without
opening it.
MS. CARPENETI said that "confidential information" is defined as
"information that is defined as confidential by law." Responding
to questions, she agreed to provide a list of the things that
would be considered confidential, and suggested the committee
decide how broadly it wanted to define "confidential
information."
1:45:49 PM
SENATOR PASKVAN asked if there's a product on the market that
would shield any personal information that's inside a wallet or
purse.
MS. CARPENETI said she's heard that some women put a lead liner
in their purse, but she hasn't heard of anything else.
SENATOR MCGUIRE noted that she worked on legislation several
years ago that would inform consumers if RFID chips were used in
things like a Carrs card, but the bill didn't advance because of
wide-spread opposition. She asked if DOL had thought about the
scenarios in which that information would be obtained and if the
courts would be filled with prosecutions for this new crime.
MS. CARPENETI replied she'd certainly look at the minutes from
those hearings to make sure they'd thought through the different
scenarios.
1:49:23 PM
SENATOR WIELECHOWSKI asked if the bill could also classify as
confidential things involving biometrics, the methods of
identifying a person based on things like fingerprints or
retinal scans.
MS. CARPENETI said she would follow up, but the statutes do
identify certain health records as confidential.
Continuing with Section 10, she said the first degree provision,
which is a class A misdemeanor, would be taking the confidential
information and using it to commit a crime or to obtain a
benefit. She noted that the statutes define "benefit" rather
broadly.
Section 11 clarifies that a person may be prosecuted for online
enticement of a minor and for sending an explicit image of a
minor if the minor was in Alaska, even if the defendant was in
another jurisdiction at the time that he or she committed the
prohibited conduct.
1:51:02 PM
Section 12 amends AS 12.55.125(i), the sentencing statutes for
sex crimes, by conforming the terms of imprisonment for persons
who commit unlawful exploitation of a minor or online enticement
of a minor to the correct level in accord with the changes in
Sections 3-5 of the bill.
SENATOR PASKVAN suggested drafting the law to make it illegal to
be in possession of technology that is used for wrongdoing.
CHAIR FRENCH said it's like possession of burglary tools.
MS. CARPENETI said she'd have to think about it because it would
have to be a specific intent crime.
SENATOR PASKVAN opined that society should be most worried about
the people who have access to equipment that can get personal
information as they walk by you on the street. If they don't
have a legitimate reason for possessing this equipment, the
presumption would be that they're using it to steal information.
SENATOR MCGUIRE suggested using the Oregon law that prohibits
the possession of a radar detector as a model and including a
rebuttable presumption for proving that there's a legitimate
reason for possessing the equipment.
1:53:51 PM
SENATOR WIELECHOWSKI asked how "unlawful exploitation" is
defined on page 7, line 9.
MS. CARPENETI replied it's the crime that's in AS ll.41.455,
unlawful exploitation of a minor. Basically, it's the creation
of child pornography.
CHAIR FRENCH asked how often DOL prosecutes online enticement
and unlawful exploitation of a minor.
MS. CARPENETI replied there were 7 cases filed last year under
the unlawful exploitation of a minor statute and 4 cases filed
under the online enticement of a minor statute.
CHAIR FRENCH said he has some concern with enhancing the
penalties for crimes that are rarely prosecuted.
MS. CARPENETI responded that these cases are very serious and
shocking; Sergeant DeGraaf was prepared to testify in a House
committee about some of the cases that have been prosecuted.
1:56:27 PM
CHAIR FRENCH said he could not agree more that these are very
serious crimes.
MS. CARPENETI said it's DOL's position that the seriousness of
these crimes is ample justification of the penalties.
SENATOR COGHILL asked if these cases have other co-occurring
charges, like kidnapping.
MS. CARPENETI said most of the cases of child kidnapping also
have sexual assaults and she suspects that it would be the same
with these. She offered to follow up.
SENATOR MCGUIRE mentioned the three strikes law and asked
Senator French to clarify what he meant when he talked about
increasing the penalties.
CHAIR FRENCH said the section the committee was just discussing
incorporates these crimes into the three strikes scheme. He then
asked Ms. Carpeneti if under this bill a second offense for
unlawful exploitation of a minor would be an unclassified
felony, eligible for a 99 year sentence.
1:59:36 PM
MS. CARPENETI replied that would need to be stated in the
statute.
CHAIR FRENCH summarized that the first offense would be an A
felony, the second would be an A felony, and the third would be
the third strike.
MS. CARPENETI clarified that unlawful exploitation of a minor,
which is the creation of this material, is already in the felony
sentencing provisions, but online enticement of a minor was
somehow left out of the three strikes provision. Under this bill
it would be a class B felony for a person who is not required to
register as a sex offender.
CHAIR FRENCH commented that in Alaska transmission of child
pornography is horrifically and shockingly prevalent. The
resources that are being poured in and the level of activity
would suggest more than four prosecutions a year.
MS. CARPENETI said she hopes it will get better.
CHAIR FRENCH asked if the expanded subpoena power would be
included in this bill in the form of a committee substitute.
MS. CARPENETI answered yes; she knows the committee would be
interested in that.
MS. CARPENETI said Section 13 deals with probation officers. It
clarifies that while the commissioner of corrections provides
probation officers to the superior court for the active
supervision of a person on probation for felony offenses, it's
not required. The commissioner may, at his or her discretion,
also provide probation officers for the active supervision of
persons released for misdemeanor offenses.
Senator French opened public testimony.
2:04:08 PM
TONY NEWMAN, Social Services Program Officer, Division of
Juvenile Justice, Department of Health and Social Services
(DHSS), said DJJ is concerned about the way communications
technology and social media are outpacing the ability to
understand how they impact young people. Several of the offenses
that are the focus of SB 72 can be committed by unthinking and
impulsive youths who think it's little more than a prank, but
the consequences can be very long-term and damaging for victims.
DJJ appreciates that the governor and the Department of Law are
trying to get ahead of these issues before too many lives are
ruined.
Alaska has a juvenile justice system that recognizes that minors
should be managed differently than adults. The DJJ mission is to
hold youth accountable when they commit offenses, but at the
same time to provide opportunities to keep them from continuing
to make mistakes. The bill strikes a balance and allows DJJ to
appropriately respond to the juvenile given his/her risk to
reoffend and his/her needs. For example, the division could
refer a youth to a diversion program such as a youth court
without requiring them to go through formal court proceedings.
The exception is the increase in the charge class level for
unlawful exploitation of a minor. Class A felonies against a
person are known in the juvenile system as auto-waiver offenses;
youths age 16 and age 17 are referred directly to the adult
criminal justice system. Unlawful exploitation of a minor is a
serious offense, but DJJ believes that when a youth commits this
crime it is counterproductive to automatically waive him into
the adult system. DOL agrees and is working to craft an
amendment to address this issue.
2:06:50 PM
QUINLAN STEINER, Public Defender for the State of Alaska, Public
Defender Agency, said his comments would center on two topics
related to the unintended consequences in Section 7 of SB 72.
The first is the breadth and nature of who it covers.
Potentially couples who exchange photographs via email would be
in violation of the statute. It would also cover a broader
spectrum like grandparents who electronically send photos of
grandchildren to their friends or post them on Facebook. That
would be criminalized by this statute. He suggested narrowing
the language to target the intended situation, which is the
distribution where the broader distribution would be
embarrassing. He also suggested the bill provide an exclusion
for people who are taking and involved in the pictures.
MR. STEINER said the other concern relates to the C felony
penalty for publishing or distributing the depiction on the
Internet. The bill refers to the broad definition of "Internet,"
which refers to its physical nature and how things are
transferred. It would in fact become a felony to take a photo
and email it to one person unless a printed photo was used for
the publishing and distribution. He said he believes what was
intended was posting on the Internet for public viewing rather
than simple distribution. He described this as a technical
problem.
CHAIR FRENCH said the committee is focused on getting at this
without including too much.
2:10:33 PM
CHAIR FRENCH announced he would hold SB 72 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 11 Sponsor Statement.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 11 Support Material.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 11 Sectional Summary 27-LS0087A.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 11 Letters.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 39 Sponsor Statement.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 Sectional.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 One Page Summary.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 Editorials.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 Alaska Poll Results.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |