05/01/2005 01:00 PM Senate FINANCE

                                                                                                                                
     CS FOR SENATE BILL NO. 135(JUD)                                                                                            
     "An Act relating to the crimes of assault and custodial                                                                    
     interference; and providing for an effective date."                                                                        
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
Senator Dyson, the bill's  sponsor, stated that he had sponsored the                                                            
bill  on behalf  of the  Governor  Frank Murkowski  Administration.                                                             
Therefore,  he would defer to the  Department of Law to present  the                                                            
merits of the bill.                                                                                                             
                                                                                                                                
3:21:42 PM                                                                                                                    
                                                                                                                                
DEAN  GUANELI,  Chief Assistant  Attorney  General,  Legal  Services                                                            
Section-Juneau,  Criminal Division,  Department of Law, stated  that                                                            
this bill  would address  "two  child protection  matters that  were                                                            
made necessary  by a  couple of  opinions by the"  State's Court  of                                                            
Appeals.  One case involved  a woman who went  to work and  left her                                                            
new boyfriend to baby-sit  her nine-month old infant child. When she                                                            
returned,  she discovered  that the  infant was  bruised around  its                                                            
head and face.  She called the hospital and was told  to observe the                                                            
child  for  a few  hours.  She  eventually  took  the child  to  the                                                            
hospital.  A  Cat Scan  was  conducted  on the  child  to  determine                                                            
whether  there might  be  internal  injuries and  a  blood test  was                                                            
administered.  The child recuperated  without any lasting  injuries.                                                            
Based on  law that existed  at the time  the boyfriend, who  claimed                                                            
that  the  child's  actions caused  it  to  fall  out of  bed,  "was                                                            
prosecuted for assault".  The Department of Law believed a provision                                                            
of State law would  allow a person who assaulted child  to the point                                                            
where medical  attention were required, to be charged  with a felony                                                            
offense.  The State "Court  of Appeals  took a  very narrow  view of                                                            
what  the  term  treatment  meant  and  said  that  mere  tests  for                                                            
diagnosing what's wrong  with the child", even if the test is fairly                                                            
extensive,  would not constitute medical  treatment. The  tests that                                                            
were  administered  were  considered  as a  medical  diagnosis,  and                                                            
therefore, the individual  could only be charged with "a misdemeanor                                                            
instead of a felony assault".                                                                                                   
                                                                                                                                
Mr. Guaneli  informed the Committee  that the State of Alaska  has a                                                            
serious problem with assaults  against small children including such                                                            
things  as "shaken  baby  syndrome".  The Department  believes  that                                                            
people  who react  angrily  against  such  things as  crying  babies                                                            
"really  need the  kind of felony  level supervision  and  probation                                                            
that a felony prosecution provides".                                                                                            
                                                                                                                                
Mr. Guaneli  stated that  Section 1  of the bill  "would change  the                                                            
provision of  assault in the third  degree" which is a felony  level                                                            
of assault,  "to make it  clear that if the  level of injury  to the                                                            
child would cause  a reasonable caregiver to seek  medical attention                                                            
in the form of diagnosis  or treatment that that would be sufficient                                                            
to establish a  felony level assault". The goal would  be to protect                                                            
children  as much  as possible  and to  ensure that  the people  who                                                            
injure  a child seriously  enough to  go to the  hospital should  be                                                            
placed "under the appropriate form of supervision".                                                                             
                                                                                                                                
3:25:25 PM                                                                                                                    
                                                                                                                                
Mr. Guaneli stated that  Sec. 2 of the bill would address situations                                                            
involving  child custody  disputes in which  a non-custodial  parent                                                            
with visitation  rights might leave  the State with the child.  This                                                            
situation in not  uncommon, and the custodial parent  might not hear                                                            
from either the  child or the other parent "for months  or sometimes                                                            
years".  The Department's  position  has been "that  the parent  who                                                            
took the child couldn't  tell the jury later that" that there action                                                            
was to protect the child.  However, a recent Court of Appeals ruling                                                            
allowed  that argument.  That ruling  related to a  case in  which a                                                            
father with visitation  rights had repeatedly told  the Alaska State                                                            
Troopers and the  Department of Health and Social  Services that the                                                            
"child wasn't being cared  for"; however, no evidence supported that                                                            
claim. The  father eventually "took  the child and left the  State".                                                            
Upon being  caught, the father  was allowed  to explain to  the jury                                                            
that he had acted to protect his child.                                                                                         
                                                                                                                                
Mr. Guaneli stated that  Sec. 2 would reverse that Court of Appeals'                                                            
ruling. Current  State Statute specifies that if "something  is done                                                            
out of  necessity because  it would  prevent the  greater harm  from                                                            
occurring",  then it would be "an  affirmative defense to  a crime".                                                            
This bill would  allow that "affirmative  defense of necessity  in a                                                            
custodial interference  prosecution, but only if you  hold the child                                                            
for a maximum of 24 hours  or until you have an opportunity to go to                                                            
the police".                                                                                                                    
                                                                                                                                
Mr. Guaneli  stated that this approach  has been utilized  for other                                                            
offenses  such as an escape  from prison were  the escapee  to claim                                                            
that such action  was "to protect  yourself from being brutalized".                                                             
However,  that person "must  immediately turn"  themselves  into the                                                            
police.                                                                                                                         
                                                                                                                                
Co-Chair  Green asked  regarding the  reference  to "an incompetent                                                             
person" as reflected  in Sec. 2(c), page two, line  20; specifically                                                            
whether  that language  meant that  that person  must be "under  the                                                            
custody of another, even if they weren't a minor".                                                                              
                                                                                                                                
     (c)  The affirmative  defense of necessity  under AS  11.81.320                                                            
     does  not apply  to a prosecution  for  custodial interference                                                             
     under  (a) of this section if  the protracted period  for which                                                            
     the  person held  the child  or incompetent  person exceed  the                                                            
     shorter of the following:                                                                                                  
                                                                                                                                
3:28:58 PM                                                                                                                    
                                                                                                                                
Mr. Guaneli  affirmed that  to be correct.  The underlying  crime of                                                            
custodial  interference would  involve "someone  who takes  either a                                                            
child  or an  incompetent  person,  someone  who  is in  custody  of                                                            
somebody else".                                                                                                                 
                                                                                                                                
Co-Chair Wilken asked the  significance of specifying that Section 1                                                            
must apply to harming a child ten years of age or younger.                                                                      
                                                                                                                                
Mr. Guaneli  responded that that age  reference is in existing  law.                                                            
The Statute  was originally  developed  in response  to assaults  to                                                            
children  under the age of  ten. "They were  the least likely  to be                                                            
able to either defend themselves or run and get help."                                                                          
                                                                                                                                
Co-Chair Green noted that  the language being referenced, Sec. 1(C),                                                            
page one, beginning on  line 11, would also indicate that the person                                                            
conducting the assault  be age 18 or older. To that point, she asked                                                            
whether State  Statute exists that would address assaults  conducted                                                            
by those younger than 18 years old.                                                                                             
                                                                                                                                
Mr. Guaneli expressed  that this language "was designed  to apply to                                                            
adults  and not take  into account  children who  may interact  with                                                            
other  children".  The goal  was to  draw a  line  "to avoid  having                                                            
juvenile  delinquency proceedings  if  someone under  18 is  causing                                                            
injury to a child".                                                                                                             
                                                                                                                                
Co-Chair Green asked whether  other State Statutes might address the                                                            
issue of a person under the age of 18 assaulting children.                                                                      
                                                                                                                                
Mr. Guaneli clarified  that standard misdemeanor assault  provisions                                                            
would apply  to a person under 18  years of age who commits  such an                                                            
assault. The language  in this bill would specify  that a person age                                                            
18 or older would be subject  to a felony. A person under the age of                                                            
18 would "be subject  to the jurisdiction of the Children's  Court".                                                            
                                                                                                                                
Co-Chair  Wilken  moved  to  report the  bill  from  Committee  with                                                            
individual recommendations and accompanying fiscal notes.                                                                       
                                                                                                                                
There  being  no  objection,  CS  SB  135(JUD)   was  REPORTED  from                                                            
Committee  with zero fiscal  note #1, dated  April 4, 2005  from the                                                            
Department  of Administration; zero  fiscal note #2, dated  April 1,                                                            
2005 from the  Alaska Court System,  and zero fiscal note  #2, dated                                                            
April 5, 2005 from the Department of Law.