Legislature(2007 - 2008)BELTZ 211
05/04/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB19 | |
| SB145 | |
| SB18 | |
| SB157 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | HB 19 | ||
| = | SB 145 | ||
| = | SB 18 | ||
| = | SB 157 | ||
SB 157-TRAFFICKING/PROSTITUTION/SEXUAL ABUSE
2:09:12 PM
CHAIR FRENCH announced the consideration of SB 157 and asked for
a motion to adopt Version \L committee substitute.
2:09:20 PM
SENATOR THERRIAULT motioned to adopt CS for SB 157, Version \L,
labeled 25-LS0759\L, as the working document before the
committee. There being no objection, it was so ordered.
SENATOR DYSON, Sponsor of SB 157, relayed that a federally
funded task force composed of the Troopers, the FBI, the
Anchorage Police Department, and others looked into human
trafficking in Alaska. SB 157 represents the task force's
recommended changes to the Alaska statutes to facilitate the
prosecution of people who traffic and prostitute children in
particular. He noted that the current version addresses the
criminal code.
2:10:32 PM
Section 1 expands the definition of the crime of prostitution to
include the buyer making it equally criminal for both sides of
the prostitution transaction.
Sections 2 and 3 raise the age of consent. The law against
promotion of prostitution in the first degree would include
prostitution of persons between 16 and 18 years of age.
Previously it was 16 years of age.
2:11:30 PM
Section 4 raises the penalty for promotion of prostitution in
the first degree from a class B felony to a class A felony.
Section 5 raises the penalty for promotion of prostitution of a
child from a class A felony to an unclassified felony.
Section 6 raises promotion of prostitution in the second degree
from a class C felony to a class B felony.
SENATOR DYSON elaborated that police officers have expressed
concern that prosecutors don't take misdemeanor and lower class
prostitution seriously. The feeling is that it would be taken
seriously if the crimes were felonies. "The Department of Law is
apparently comfortable with bumping these all up one notch," he
stated.
Section 7 deals with running a house of prostitution. It raises
the penalty for promoting prostitution in the third degree from
a class A misdemeanor to a class C felony. Also it includes
prostitution of persons between 16 and 18 years of age.
Previously the age was 16.
SENATOR DYSON explained that the drafter, Mr. Luckhaupt, added a
new fourth degree prostitution. It's to catch someone who is
promoting prostitution that isn't at a class B or class C felony
level. He understands it will help to prosecute people who know
about and may facilitate prostitution even though they may not
be getting a fee for their service. He noted that the Anchorage
police are saying that hotels are turning a blind eye and this
may get at that.
2:14:27 PM
CHAIR FRENCH asked the Department of Law someone who delivers
pizza, sweeps a driveway, plows snow, or hooks up telephone
service in a place of prostitution would be guilty of engaging
in conduct that institutes, aids, or facilitates prostitution.
2:14:42 PM
RICK SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law, said it depends. Literally if someone is
aiding in the commission of the offense by sweeping the driveway
so that patrons have access, then the answer is yes. If someone
is delivering pizza with the intention of aiding in commission
of the offense by providing food for what's going on, the answer
is also yes. A bellhop who facilitates a hotel patron's request
for a prostitute is guilty of promoting prostitution now, but
this language may capture certain stances that he's not thinking
about.
CHAIR FRENCH asked if the mental element with respect to this
provision would be "knowing."
MR. SVOBODNY said he doesn't know but typically when someone is
charged with aiding or abetting an offense the culpable mental
state is higher. There must be intent that the underlying crime
occur. For instance, it would not be a crime for him to agree to
lend a gun to someone, but if he intended to help in an armed
robbery then he would have to have a higher culpable mental
state. "Sometimes you have to have a higher culpable mental
state than the perpetrator." That language is built into the
regular culpability statute, but it isn't built into this
statute so it may well be that it's knowingly, he stated.
MR. SVOBODNY summarized that the statutory construction answer
is yes --it knowingly.
CHAIR FRENCH said the mental element probably doesn't need to be
inserted here. If it's knowingly or higher then you'd have to
prove that the person who's sweeping the driveway is not doing
it because he's earning $5 and that's how he makes his living.
You'd have to prove that he's sweeping the driveway because he
knows there's an event that night and he's making sure that
business can be conducted inside the house of prostitution.
MR. SVOBODNEY said if the particular words aren't used in
statute it's knowingly.
2:18:36 PM
CHAIR FRENCH expressed the view that the statute is fine the way
it is.
SENATOR WIELECHOWSKI asked for clarification that by default
it'd be knowingly.
MR. SVOBODNY said yes.
SENATOR WIELECHOWSKI asked if the person who's shoveling the
driveway has, under this statute, committed the crime of aiding
prostitution if he/she knows that the owner of the facility
intends to have prostitutes there.
MR. SVOBODNY said he doesn't really know because it would have
to be proved that the sweeper knew that he/she was clearing the
driveway so that patrons of the prostitutes could go there.
CHAIR FRENCH asked if it's fair to say that you would be looking
for business partners, business associates, and others who are
intimately connected to the operation in order to bring a
prosecution.
MR. SVOBODNY said yes; it will always be the case that the court
will say that the mere presence at the scene of a crime is not
sufficient to be guilty of a crime. There would have to be some
other mental state before the person is guilty of a crime.
SENATOR WIELECHOWSKI asked if a motel clerk would have committed
a violation under this statute if he/she were to allow someone
to check in if they were accompanied by someone who could be a
prostitute.
MR. SVOBODNY it would be necessary to show that the clerk knew
that the person was a prostitute.
SENATOR DYSON interjected that if the clerk is renting the room
by the hour and the same girl is seen three or four times a
night it's a good case.
SENATOR WIELECHOWSKI asked if that's an objective or subjective
standard.
CHAIR FRENCH opined that it's the reasonable person standard.
MR. SVOBODNY said the jury will make a determination of whether
there was a substantial probability that the event existed--that
the act of prostitution was or would be occurring.
SENATOR WIELECHOWSKI said that's the objective standard.
MR. SVOBODNY countered that it's the reasonable person standard.
A jury would ask if that's what a reasonable person would know.
2:21:47 PM
CHAIR FRENCH asked Senator Dyson to continue with Section 9.
SENATOR DYSON continued.
Section 9 clarifies that property that is used to aid or
facilitate the promotion of prostitution can be seized.
Section 10 inserts promoting prostitution of children into the
sentencing code.
SENATOR WIELECHOWSKI referenced Section 9 and commented that the
provision that the "property shall be forfeited" seems extreme.
He noted that the Hotel Captain Cook for example is probably
valued at several hundred million dollars.
CHAIR FRENCH asked Mr. Svobodny if the Hotel Captain Cook could
be at stake here.
2:23:06 PM
MR. SVOBODNY explained that there's been a big discussion in
alcohol forfeiture where Alaska Airlines claimed that it would
have a plane seized if an agent put alcohol on a plane that was
going to a dry community. In that case language was included so
that would not be the case. He said he didn't know if there is
special language or if it was just a conclusion that there must
be a nexus. The person owning the property generally wouldn't be
subject to having the property forfeited unless there was a
certain culpable mental state. Under Senator Dyson's example, if
the Hotel Captain Cook is renting rooms by the hour it may well
be subject to seizure, but if it's simply a clerk who is acting
beyond the scope of his/her duties then the hotel would not be
subject to forfeiture.
2:24:43 PM
CHAIR FRENCH advised that he would flag that area for more
attention.
2:24:51 PM
SENATOR DYSON added that the target is the people who are
running a house of prostitution in their camper and the taxicab
drivers who are regularly facilitating this business by
transporting Johns and or by providing a cell phone and saying
"here's a lady that would love to do business with you."
Section 11 deals with fines. He understands that for the first
time this makes it possible to impose fines as well as a jail
sentence for this crime.
Section 12 inserts promoting prostitution in the first degree.
Consistently now the penalty for prostituting a child is the
same as having molested or raped that child, he stated.
SENATOR DYSON noted that Child Protective Services and Juvenile
Justice asked him to continue to work on the section that allows
the state to take protective custody without arresting a child
who had been prostituted. He said he agreed to pull that section
for continued work.
2:27:02 PM
CHAIR FRENCH commented that he saw suggested language on that in
a bill by Representative Doogan. He asked if they'd worked
together.
SENATOR DYSON said he'd worked with Representative Doogan a
little.
CHAIR FRENCH found no further testimony on SB 157.
SENATOR DYSON said he was asked not to line up a lot of
testimony, but he could do so if the committee required it.
SENATOR WIELECHOWSKI asked how this compares with what other
states are doing.
2:28:03 PM
SENATOR DYSON said he didn't know, but he could get the
information.
CHAIR FRENCH suggested he contact Senator Wielechowski directly
and announced he would hold SB 157 in committee.
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