Legislature(2013 - 2014)CAPITOL 120
04/14/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB370 | |
| HB315 | |
| SB173 | |
| SB128 | |
| SB170 | |
| HB370 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 315 | TELECONFERENCED | |
| + | SB 170 | TELECONFERENCED | |
| + | HB 370 | TELECONFERENCED | |
| += | SB 173 | TELECONFERENCED | |
| + | SB 128 | TELECONFERENCED | |
| + | SCR 2 | TELECONFERENCED | |
| + | HB 254 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 128-ELECTRONIC BULLYING
3:05:06 PM
CHAIR KELLER announced that the next order of business would be
CS FOR SENATE BILL NO. 128(JUD), "An Act relating to the crime
of harassment."
3:06:04 PM
EDRA MORLEDGE, Staff, Senator Kevin Meyer, speaking on behalf of
Senator Meyer, prime sponsor of CSSB 128[JUD], informed the
committee the bill is aimed at reducing electronic harassment,
which is otherwise known as cyberbullying. The proposed
legislation would make this offense a class B misdemeanor and
inserts a new paragraph into Alaska's existing harassment
statute. The current language of the bill (Version G) was
drafted by the sponsor, the Department of Law (DOL), Legislative
Legal and Research Services, Legislative Affairs Agency, and the
Senate Judiciary Standing Committee. The bill protects
individuals under the age of 18 years because, although the
current statute under education requires school districts to
establish policies and procedures for bullying on school
grounds, electronic bullying occurs outside of school in social
media sites, and through texts and email.
3:07:40 PM
CHAIR KELLER directed attention to page 2, line 5, which read:
... manner that causes severe mental or emotional
injury or places the person in ...
CHAIR KELLER expressed his belief that the aforementioned
condition would be hard to define, and he suggested that
removing the words "causes severe mental or emotional injury or"
would strengthen the bill.
MS. MORLEDGE said the sponsor is amenable to the suggested
change.
REPRESENTATIVE LEDOUX asked why the legislation is limited to
protecting persons under 18 years of age. Also, she questioned
why something that "would cause a reasonable fear of physical
injury" is not assault regardless of a person's age.
MS. MORLEDGE explained that the intent of the bill was to
protect school-age children because they are more vulnerable to
harassment.
REPRESENTATIVE LEDOUX restated her point that threatening a
person to cause a fear of physical injury is assault under
existing statutes.
MS. MORLEDGE deferred to the drafter of the bill.
3:10:35 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, responded that existing statute states that a person
commits the crime of assault in the fourth degree if by words or
other contact, the person recklessly places another person in
fear of imminent physical injury. She directed attention to
page 1, line 4 of the proposed legislation which read:
(a) person commits the crime of harassment in the
second degree if, with intent to harass or annoy
another person, that person
MS. STRASBAUGH pointed out there are two differences between
existing statute and the proposed statute: The first difference
is the intent to "annoy" rather than the intent to injure, and
the second is the threat of "physical injury," not "imminent
physical injury." She stated that the second difference relates
to the fact that imminent does not apply to electronic bullying
because the words or other conduct does not take place in the
presence of a person.
3:12:04 PM
MS. STRASBAUGH, in response to Chair Keller regarding his
suggestion to remove "causes severe mental or emotional injury
or" said that is a policy choice. As to whether the change
would cause difficulties for the prosecution, she deferred to
DOL.
3:12:20 PM
REPRESENTATIVE GRUENBERG, after being told by Ms. Strasbaugh
that the existing statute covering assault in the fourth degree
is AS 11.41.230, noted that assault in the fourth degree is a
class A misdemeanor, and second degree harassment is a class B
misdemeanor, which is up to 90 days in jail. He directed
attention to page 2, lines 3-5 which read:
(7) repeatedly sends or publishes an electronic
communication that insults, taunts, challenges, or
intimidates a person under 18 years of age in a manner
that places the person in reasonable fear of physical
injury.
REPRESENTATIVE GRUENBERG asked whether each communication would
be a separate offense or "if you're sending a communication, or
publish it, you must do it repeatedly."
MS. STRASBAUGH said she was hesitant to make an assertion as to
how each case would be handled.
3:14:23 PM
REPRESENTATIVE GRUENBERG informed the committee the Rule of
Lenity directs that if a statute can be interpreted two ways and
in a criminal case the court will interpret the law in the most
lenient way from the defendant's point of view. He gave an
example in which 50 calls were interpreted as one offense.
MS. STRASBAUGH surmised a series of taunts or insults would be
taken to authorities when it reached "the pain threshold." She
encouraged the committee to ask the prosecuting agency how it
would prosecute the posited case.
MS. MORLEDGE pointed out on page 1, line 10, the word "repeated"
is currently used for telephone calls and thus was the source
for the new language, "repeated sending of an electronic
message."
3:17:12 PM
REPRESENTATIVE LYNN questioned the use of "inconvenient hours"
on page 1, line 10. He observed that some of the language in
the bill is "very, very, vague."
MS. MORLEDGE restated her point that the aforementioned language
is from the existing statute and the proposed bill simply
inserts electronic communication and using consistent language.
REPRESENTATIVE GRUENBERG referred to occupations which require
workers to have "thick skin." He asked whether there is a
definition in the Alaska Statutes of "severe mental or emotional
...."
3:21:18 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law, stated it would be
difficult to prove the language removed by Chair Keller's
proposed amendment [text provided above]. He said if the
language stays in, the answer is up to the jury. In criminal
law definitions, there is no definition of the terms severe
mental or emotional injury to help the jury; in fact, the court
will tell the jury "use ... your ordinary understanding of the
language." Mr. Svobodny said this would probably cause debate
in the jury room. This type of question, along with the meaning
of "repeated" would be up to the jury. He gave an example of a
previous ruling establishing that three threats of serious
physical injury to a person satisfied the term "repeated" -
which is used in the crime of assault in the third degree - as a
matter of law. In response to Representative Gruenberg, Mr.
Svobodny said the offense of terroristic threatening is still a
law, but the language has been changed and the repeated threats
to cause serious physical injury have been moved to assault in
the third degree.
REPRESENTATIVE LEDOUX stated one of her concerns about including
the language "causes severe mental or emotional injury," is
regarding the "eggshell" plaintiff. Some actions that most
people would tolerate may cause injury to those who are
emotionally or mentally fragile. She said this situation is
common in tort cases and courts have ruled that a defendant is
liable for an eggshell plaintiff.
3:25:29 PM
MR. SVOBODNY said the position of DOL is that if a defendant
injures a victim with a disease, their injury could lead to
charges of more serious assault; this is a position that is
consistent with other provisions of law, that "you take your
victim as you find them."
REPRESENTATIVE LEDOUX cautioned that the "causes severe mental
or emotional injury" section is troublesome because there should
not be a prior restraint on the freedom of speech, and she said
she supported the removal of this language.
3:27:43 PM
REPRESENTATIVE LYNN moved to adopt the proposed House committee
substitute (HCS) for CSSB 128(JUD), Version 28-LS1001\H,
Strasbaugh, 4/12/14, as the working document. There being no
objection, Version H was before the committee.
REPRESENTATIVE GRUENBERG stated he was not waiving any rights to
offer an amendment.
3:28:30 PM
CHAIR KELLER, after ascertaining that no one else wished to
testify, closed public testimony.
REPRESENTATIVE GRUENBERG commented that many terms in the bill
are construed according to "common ordinary usage." He urged
for the committee to review related court decisions and warned
that more information on definitions is needed.
3:29:43 PM
CHAIR KELLER reopened public testimony.
REPRESENTATIVE GRUENBERG pointed out the use of "repeatedly" and
"repeated" in the new and existing language of the bill, and
asked how courts interpret the term.
3:30:58 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency, was unsure of the definitive answer to Representative
Gruenberg's question; however, he expressed his belief that
repeated is "more than once."
REPRESENTATIVE GRUENBERG requested further testimony from
agencies on this point.
CHAIR KELLER said his hope is that the committee will make a
decision on the bill at this hearing.
3:31:51 PM
CHAIR KELLER again closed public testimony.
3:32:23 PM
REPRESENTATIVE LYNN moved to report the proposed HCS for [CSSB]
128(JUD), Version 28-LS1001\H, Strasbaugh, 4/12/14, out of
committee with individual recommendations and the accompanying
fiscal notes.
3:32:43 PM
REPRESENTATIVE PRUITT objected. Although he said he agreed with
the motion, he questioned whether a class B misdemeanor is
appropriate in the case of an adult who intimidates a young
child. He then removed his objection.
REPRESENTATIVE GRUENBERG inquired as to whether the proposed
bill is void for vagueness. One prosecutor may decide to divide
ten calls into two counts and another may not; the bill is
silent on this matter, and he asked Mr. Svobodny if DOL has any
charging guidelines related to the bill.
MR. SVOBODNY said DOL does not have guidelines on the number of
calls that are needed to establish "repeated." This issue
arises across all criminal cases and charges are sometimes
determined by, for example, the number of pills, or the number
of bad checks.
REPRESENTATIVE GRUENBERG observed that the existing legislation
has not been struck down.
REPRESENTATIVE PRUITT further asked whether DOL is confident
that the proposed legislation can be enforced.
MR. SVOBODNY said he is very comfortable with the bill.
REPRESENTATIVE PRUITT restated that he removed his objection.
3:38:46 PM
There being no further objection, HCS CSSB 128(JUD) was reported
from the House Judiciary Standing Committee.