04/16/2014 01:00 PM House JUDICIARY

           SB 170-AFFIRMATIVE DEFENSE TO PROSTITUTION                                                                       
                                                                                                                                
1:44:29 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
SENATE BILL NO.  170, "An Act relating to a  defense to the crime                                                               
of prostitution for victims of sex trafficking."                                                                                
                                                                                                                                
SENATOR  BERTA  GARDNER,  Alaska   State  Legislature,  said  the                                                               
discussion  on SB  170  at  the last  hearing  was not  thorough,                                                               
because  the committee  was rushed.   Currently,  23 states,  and                                                               
others  in   progress,  offer  an  affirmative   defense  against                                                               
prostitution charges [for victims of  sex trafficking].  When she                                                               
spoke with law enforcement, including  the FBI [Federal Bureau of                                                               
Investigation] and  police officers,  she found  them to  be very                                                               
enthusiastic about this tool for  going after traffickers.  Those                                                               
who are opposed  are opposed because the legislation  does not go                                                               
far  enough,  she said.    There  are  some  people who  want  to                                                               
decriminalize prostitution  and vacate previous  convictions, she                                                               
noted, and  there are  others who want  to vacate  convictions of                                                               
trafficking  victims  and  offer   immunity  for  other  offenses                                                               
(sometimes  the victims  are forced  to  sell or  use drugs,  for                                                               
example).   She stated  that all of  those proposals  are worthy,                                                               
but SB  170 "is not going  there."  The  heart of the bill  is to                                                               
not  re-victimize sex  traffic victims  by  prosecuting them  for                                                               
prostitution, and the  other is to help law  enforcement go after                                                               
the traffickers, she said.                                                                                                      
                                                                                                                                
1:46:51 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER noted that there  were two private defense attorneys                                                               
and a public defender on line.                                                                                                  
                                                                                                                                
STEVE  HANDY,  Staff  to  Senator  Berta  Gardner,  Alaska  State                                                               
Legislature,  noted that  the  main concern  voiced  at the  last                                                               
hearing was how the affirmative  defense would hurt the victim by                                                               
subjected him  or her to  intense scrutiny from  the prosecution.                                                               
He explained that the affirmative  defense "is just that; it ends                                                               
right there."  The defense must  be declared pretrial, and in the                                                               
trial it is given  to the jury, he stated.   If the jury believes                                                               
by a preponderance of the  evidence (the lowest form of evidence)                                                               
that the victim was induced or  caused to engage in the act, then                                                               
the victim is excused at that  point.  There is no obligation for                                                               
prosecution or negotiation-"that is it."                                                                                        
                                                                                                                                
CHAIR KELLER opened public testimony.                                                                                           
                                                                                                                                
1:48:47 PM                                                                                                                    
                                                                                                                                
SCOTT DATTAN,  Defense Attorney,  said he does  a lot  of federal                                                               
criminal  defense  work  and  some state  defense  work.    After                                                               
discussing  the  bill  with  Mr. Handy,  he  concluded  that  the                                                               
legislation  was an  appropriate thing  to do.   The  affirmative                                                               
defense should  be offered  to young women  who are  pressed into                                                               
this type of occupation and into  illegal conduct, he opined.  He                                                               
said he  sees no negative aspect  to a defendant, who  can choose                                                               
not  to offer  the  defense. It  would,  however, be  statutorily                                                               
available  if  a  defendant  and  her  attorney  chose  to  avail                                                               
themselves of it.                                                                                                               
                                                                                                                                
1:50:59 PM                                                                                                                    
                                                                                                                                
WALLY  TETLOW,  Partner,  Tetlow   Christie,  LLC,  said  he  has                                                               
practiced criminal  defense in  Alaska state  courts for  over 20                                                               
years.   He opined that SB  170 is important, and  it provides an                                                               
opportunity for an individual charged  with prostitution to prove                                                               
to  a  jury  that  he  or  she  was  induced  to  do  so  by  sex                                                               
traffickers.   He stated that  the bill  does not provide  a free                                                               
pass to  engage in prostitution,  but it provides  an affirmative                                                               
defense.   Regarding the concern  of the bill causing  victims to                                                               
make themselves  targets of  law enforcement  and be  charged for                                                               
prostitution, "in actuality, the  affirmative defense will not do                                                               
that-it will have  the opposite effect."   With law enforcement's                                                               
support of SB 170, "the last  thing that the Department of Law or                                                               
law enforcement  would want" is  for the victims to  come forward                                                               
to  reveal  information  about   sex  traffickers  and  then  law                                                               
enforcement  turns  around  and  punishes  those  individuals  by                                                               
charging them  with offenses.   "I don't see that  occurring," he                                                               
stated.                                                                                                                         
                                                                                                                                
1:53:15 PM                                                                                                                    
                                                                                                                                
MR. TETLOW continued:                                                                                                           
                                                                                                                                
     The  way  the affirmative  defense  works  in the  real                                                                    
     world is  that at trial  the defense must  produce some                                                                    
     evidence in  support of  the defense  in order  to even                                                                    
     have the jury decide whether  the defense applies.  So,                                                                    
     the  first thing  that  happens in  court  is that  the                                                                    
     defense is required to put  on some evidence to justify                                                                    
     the  jury instruction  that would  go to  the jury  and                                                                    
     allow the jury  to consider the issue.  If  there is no                                                                    
     evidence   offered  in   support  of   the  affirmative                                                                    
     defense, the  jury never gets the  issue, he explained,                                                                    
     so  that is  the first  hurdle.   The second  hurdle is                                                                    
     that  the  jury  decides,  by a  preponderance  of  the                                                                    
     evidence, whether  or not the  defense applies,  and it                                                                    
     is  the defendant's  burden to  prove the  defense, but                                                                    
     the  jury's  decision.     Ultimately  the  affirmative                                                                    
     defense  not only  plays  out at  trial,  but, in  many                                                                    
     cases,  it   will  play   out  before   trial,  thereby                                                                    
     lessening the  anxiety and pressure  and stress  on the                                                                    
     victim of sex trafficking.                                                                                                 
                                                                                                                                
1:54:37 PM                                                                                                                    
                                                                                                                                
MR. TETLOW noted  that normally in criminal cases,  long before a                                                               
case goes  to trial, there is  a negotiation phase, and,  at that                                                               
time, defense  attorneys offer information  to the  prosecutor in                                                               
an  effort  to dismiss  charges.    Such negotiations  are  often                                                               
successful in weeding  out cases that should not go  to trial, he                                                               
explained.  The  hope would be, he said, that  in most cases with                                                               
prostitutes who  are victims of sex  traffickers, the prosecution                                                               
will  get that  information and  determine that  it is  valid and                                                               
elect to dismiss the charges.                                                                                                   
                                                                                                                                
1:55:07 PM                                                                                                                    
                                                                                                                                
MR. TETLOW said he was told  there were concerns of adding stress                                                               
to the  victims if they  have to testify against  the traffickers                                                               
and  be  subject  to  cross-examination.     Simply  by  offering                                                               
evidence at  trial or  in the negotiation  phase, the  victims do                                                               
not  automatically   make  themselves   a  witness   against  the                                                               
traffickers.   He said  victims can elect  not to  cooperate, and                                                               
they may not always be the  best witnesses for the prosecutors or                                                               
investigators.  Law enforcement will  want to amass more evidence                                                               
than  just the  victims'  statements, but  their information  may                                                               
allow law  enforcement to pursue  other avenues of  evidence that                                                               
they might not have been otherwise aware of.                                                                                    
                                                                                                                                
CHAIR KELLER asked  if a victim chooses not to  become a witness,                                                               
will the affirmative defense still be available.                                                                                
                                                                                                                                
1:58:12 PM                                                                                                                    
                                                                                                                                
MR. TETLOW  said that  in the  victim's prostitution  trial there                                                               
are a  number of ways for  the victim to present  the affirmative                                                               
defense.  One way,  he said, is for the victim  to testify on his                                                               
or her own behalf, but it is  not required.  There are other ways                                                               
of  establishing  the  affirmative  defense  without  having  the                                                               
victim testify,  he explained.   However,  he said,  his previous                                                               
comments were  more directed at  the concern that not  only would                                                               
the victim  have to, perhaps,  testify in  his or her  own trial,                                                               
but he or  she would be the subject of  a subpoena by prosecutors                                                               
to testify in other trials [of the traffickers].                                                                                
                                                                                                                                
2:00:25 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER closed public testimony.                                                                                           
                                                                                                                                
REPRESENTATIVE FOSTER  thanked the  sponsor for  the legislation,                                                               
and said  that not  only is  it good for  all victims  across the                                                               
state, but  it is  good "particularly  [for] Alaska  Natives, who                                                               
come from rural  areas and they end up in  places where they have                                                               
little or no support group and are easily influenced."                                                                          
                                                                                                                                
REPRESENTATIVE LYNN concurred with  Representative Foster, and he                                                               
moved  to  report  SB  170   out  of  committee  with  individual                                                               
recommendations and the accompanying fiscal notes.                                                                              
                                                                                                                                
CHAIR KELLER  noted no  objection, and  SB 170  moved out  of the                                                               
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
2:01:36 PM