Legislature(2021 - 2022)BUTROVICH 205
02/23/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| SB187 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 187 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 187-HARASSMENT; SEX OFFENDERS & OFFENSES
2:00:00 PM
CHAIR HOLLAND reconvened the meeting and announced the
consideration of SENATE BILL NO. 187 "An Act relating to
criminal law and procedure; relating to the crime of harassment;
relating to the duty to register as a sex offender; amending the
definition of 'sex offense'; relating to lifetime revocation of
a teaching certificate for certain offenses; relating to the
definition of 'domestic violence'; relating to multidisciplinary
child protection teams; relating to arrest authority for
pretrial services officers and probation officers; and providing
for an effective date."
CHAIR HOLLAND stated the intention to hear the introduction and
take questions from members on Friday.
2:00:45 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Criminal Division, Department of Law, Anchorage,
Alaska, stated that SB 187 would make small, focused changes to
the laws relating to sex offenses. This bill would create a new
crime of harassment, elevating the crime of harassment to
address gaps. This bill would amend sex offender registration,
teacher certificates, and authorize the Department of
Correction's personnel to file criminal charges and refer cases
of sexual conduct between children to a multidisciplinary team
to determine any concerns because the criminal justice system
isn't designed to address this conduct.
2:02:49 PM
MR. SKIDMORE turned to the crime of harassment. Currently, it is
not a crime in Alaska to go up to someone and grab them by the
crotch or their genitals unless that conduct was done with the
intent to annoy or harass them. He referred to [State of Alaska
v.] Townsend. A gentleman went to a bar to enjoy an evening out
when someone unknown to him grabbed his crotch. He did not want
that conduct to occur. In 2011, the Alaska Court of Appeals
ruled that this evidence did not support a finding that
Townsend's sexual contact with T.M. was coerced by the use of
force. Although the state has the crime of harassment on its
books, that crime requires that the prosecution prove the intent
to annoy an individual. This means the prosecutor must prove the
person intended to annoy the victim. It leaves the conduct
subject to the person saying they grabbed the person with the
intent of sexual gratification or some other reason than to
annoy the victim, which is not currently a crime. In 2021, the
Court of Appeals in Dorsey v. State of Alaska ruled that to
prove this type of sexual conduct, the state must prove that the
victim was coerced by the use of force or the threat of force. A
person who intentionally subjects another person to offensive,
unwanted physical conduct by touching, either directly or
through clothing, the person's genitals, buttocks, or female
breast would be subject to a class C felony. It would close the
loophole that the department had to decline to prosecute because
the conduct did not meet the elements described in Alaska law.
2:05:23 PM
MR. SKIDMORE added that this also addresses the issue of
surprise, as described in the Townsend case, and cases in which
the victim freezes in utter shock or is afraid of what was
happening to them. Unless these cases have coercion through
force or threat of force, the state cannot prosecute them. He
related his own experience as a prosecutor informing victims who
felt violated, humiliated, and upset about being touched
sexually by another person that he could not prosecute the case
because the conduct did not meet the statutory elements of a
crime. He said he would be furious if that were to happen to his
daughters, and the offense could not be prosecuted.
2:07:00 PM
MR. SKIDMORE turned to sex offender registration. Certain crimes
do not require registration as a sex offender, but they probably
should. Under the bill, sending an explicit photo to another
person with the intent to annoy or humiliate the person would be
a crime, punishable as a class B misdemeanor. If the person
posted an explicit photo of another person to a website, it
would be a class A misdemeanor. However, suppose the person
posted an explicit image of a person's genitals, penis, or
female breast to a website with the intent to annoy or humiliate
the person without their consent. In that case, the photo can be
resent again and again, and there is no way to eliminate it.
This bill says a person must register as a sex offender in those
circumstances.
MR. SKIDMORE stated that the bill would require a person who is
required to register as a sex offender to report additional
information to the Department of Public Safety (DPS). Currently,
individuals are not required to provide some information,
including travel plans, temporary lodging, and passport
information. However, a person might take a "vacation" with the
specific purpose of engaging in sexual conduct with minors, so
knowing their planned location can help law enforcement track
them. This bill would require the sex offender to provide their
full name, mailing and physical address, school address,
telephone number(s), social security number, citizenship,
employer, job title, physical address of employment, temporary
lodging, professional license, and a palm print. This is the
information required by the federal system and other states that
would be helpful to law enforcement, so requiring it will align
Alaska with the federal registration requirements. He
characterized these as long-overdue updates.
2:10:00 PM
MR. SKIDMORE turned to revocation of teaching certificates. A
person convicted of certain types of sex offenses, including
sexual assault, sexual abuse of a minor, enticing a minor,
indecent exposure, unlawful exploitation of minors, all require
a lifetime revocation of a teaching certificate under AS
14.20.030(b). However, what is not included in the list of
offenses is the distribution or possession of child pornography.
This helps to ensure that those individuals teaching children
can be around children. Someone who has been convicted of
possession or distribution of child pornography is the type of
conduct most citizens would agree should not be around children.
He noted this was a common-sense change suggested by the
Department of Education.
2:11:19 PM
MR. SKIDMORE highlighted that if a person is on condition of
probation for a sex offense and violates those conditions, the
pretrial services officer should not be required to call law
enforcement to investigate the person. This bill would allow a
probation officer to arrest them. For example, suppose an
individual is out on pretrial release conditions, and the
individual has unlawful contact with a victim of domestic
violence or sexual assault case. In that case, the pretrial
services officer should be able to charge that type of conduct.
Those are examples of the problems that the department would
like to allow Department of Correction's employees to address
directly.
MR. SKIDMORE turned to individuals under the age of 13 who
engage in sexual conduct with one another. Currently, the
department would never charge them with a crime. The Division of
Juvenile Justice (DJJ) can sometimes charge juveniles, but the
department will not adjudicate them if the minor is under 13
years of age. This would allow multidisciplinary child
protection teams to assist in evaluating and investigating
reports of sexual contact or sexual penetration occurring
between two children under the age of 13 and make referrals or
recommend the appropriate treatment. He stated that if children
display inappropriate conduct, they should get counseling to
address those problems.
MR. SKIDMORE reminded members that the state leads the nation in
sex crimes per capita. The state should act proactively and take
preventative measures to intervene or intercede and stop it from
becoming a more significant problem later on.
2:15:16 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, Juneau, Alaska,
paraphrased the sectional analysis for SB 187.
Section 1. This section includes conforming amendments
to the changes made to the crime of harassment in
section 2-4.
MS. SCHROEDER said the substantive change is on page 2, line 12,
which incorporates the new harassment statute into the crime of
stalking. This would mean that if someone were previously
convicted of this type of harassment and stalks the same victim,
that crime would be elevated to a felony.
2:15:52 PM
Section 2. This section creates the new crime of
harassment in the first degree (class C felony). A
person is guilty of harassment in the first degree if
they intentionally subject another person to offensive
physical contact by touching, either directly or
through clothing, the other person's genitals,
buttocks, or female breast.
Section 3. This section renames the current crime of
harassment in the first degree "harassment in the
second degree." A person is guilty of harassment in
the second degree if they knowingly subject another
person to offensive physical contact with blood,
mucus, saliva, semen, urine, vomitus, or feces.
Section (a)(2) of this statute is repealed in the
repealer section.
2:16:20 PM
Section 4. This section renames the crime of
harassment in the second degree to "harassment in the
third degree". It also changes the required mental
state from "intent to harass or annoy" to "knowingly"
for subsections (a)(5) (offensive physical contact)
and (a)(7) (repeatedly sending a communication that
taunts, challenges, or intimates a person under 18 in
a manner that places the person in reasonable fear of
physical injury).
MS. SCHROEDER explained that Section 4 only makes one
substantive change on page 3, lines 7 and 20, which changes the
mental state from the intent to harass or annoy to "knowingly,"
which is a lower and broader mental state.
2:16:51 PM
Section 5. This section requires a person required to
register as a sex offender to report additional
information such as passport information, physical
address of the person's employer, and the person's job
title to the Department of Public Safety.
2:17:04 PM
MS. SCHROEDER directed attention to page 4 of SB 187, which
lists the information a kidnapper would need to provide to DPS,
including their social security number and passport information.
Another change was made on page 5, line 14, to allow any peace
officer, in addition to the Department of Corrections or
Department of Public Safety, to take the sex offender or
kidnapper's fingerprints.
Section 6. This section contains a conforming
amendment to the changes made in sec. 5. February 14,
2022.
MS. SCHROEDER said Section 6 clarifies that people required to
register for 15 years and for life are required to provide the
information listed in Section 5.
2:17:54 PM
Section 7. This section requires a person required to
register as a sex offender to notify the Department of
Public Safety if the person plans to leave the state
or is away from any address provided to the department
for seven days or more.
MS. SCHROEDER highlighted that the notice varies from 7 days for
travel within the state to 21 days for international travel. If
the person were away from the address the person provided for
seven or more days, they would need to notify the department.
2:18:28 PM
Section 8. This section clarifies that the duration of
the tolling period for sex offenders who are in
noncompliance with this chapter will be day for day.
MS. SCHROEDER noted that the substantive provision on page 7
clarifies that the tolling is day per day.
2:19:04 PM
Section 9. This section adds to the list of offenses
that will require a person to register as a sex
offender:
1.) Sending an explicit image of a minor if the image
has been distributed on the Internet;
2.) Harassment in the first degree (new statute in
this bill); 3.) Animal cruelty where sexual conduct is
involved; and 4.) Misconduct involving a corpse.
MS. SCHROEDER referred to page 8, line 21, which incorporated
the new harassment statute. The person would be required to
register after the second conviction.
2:19:48 PM
Section 10. This section requires a lifetime
revocation of a person's Alaska teaching certificate
if the person has been convicted of distribution or
possession of child pornography (AS 11.61.125-
11.65.127).
Section 11. This section amends the definition of
"crime involving domestic violence" to include the new
harassment statute (AS 11.61.117), interfering with a
crime involving domestic violence (AS 11.56.745) and
unlawful contact (AS 11.56.750 11.56.755).
MS. SCHROEDER referred to page 10, line 14, to the conforming
change made to the new harassment statute. It also added several
offenses to the definition of domestic violence, including
interfering with the report of a crime involving domestic
violence and unlawful contact.
Section 12. This section allows a probation officer to
arrest a sex offender for the crime of violation by a
sex offender of a condition of probation under AS
11.56.759.
Section 13. This section expands the arrest authority
of a pretrial services officer to include escape in
the third degree (class C felony), tampering with
physical evidence (class C felony), and unlawful
contact in the first degree (class A misdemeanor).
Section 14. This section allows multidisciplinary
child protection teams to assist in the evaluation and
investigation of reports of sexual contact or sexual
penetration occurring between two children under the
age of 13.
2:21:23 PM
Section 15. This section contains a conforming
amendment incorporating the new harassment in the
first degree statute (touching of buttocks, genitals,
breast either directly or through clothing) into the
child protection statutes requiring the department to
report certain conduct to law enforcement.
MS. SCHROEDER referred to page 12, line 20, to language
incorporating the new harassment statutes as conforming changes.
2:21:38 PM
Section 16. This section makes the applicability
section found in HB 49 (sec. 142(c), ch. 4, FSSLA
2019) related to requiring sex offenders who are
required to register in another state to also register
with Alaska when they are present in the state
retroactive. This will allow that requirement to apply
to individuals who were required to register in
another state at the time that HB 49 became effective.
MS. SCHROEDER clarified that these provisions are retroactive,
so people who were already required to register in another state
would need to register in Alaska, regardless of their arrival
date.
Section 17. This is the repealer section.
2:22:34 PM
Section 18. This is the applicability section.
MS. SCHROEDER said the bill is prospective, but two areas are
retroactive, including the information sex offenders and child
kidnappers have to provide to DPS and teaching certificates.
This would capture those already required to register as sex
offenders and provide additional information. If someone has a
teaching certificate in Alaska but was previously convicted of
distributing or possessing child pornography, they will face
mandatory revocation.
Section 19. This is the effective date section. The
bill is effective July 1, 2022.
2:23:33 PM
SENATOR HUGHES referred to Section 7 and asked if penalties
apply if the sex offender does not comply with the notification
requirements.
MR. SKIDMORE answered yes. He stated that penalties would be
imposed when a sex offender refuses to comply with registration
requirements.
2:24:29 PM
SENATOR HUGHES referred to Section 8 and asked how tolling
works.
MS. SCHROEDER answered that tolling means the clock stops if a
sex offender does not comply with the sex offender registration
requirements. Suppose the person needs to register for 15 years,
but on year five, the sex offender is out of compliance. In that
case, an additional day will be tacked on at the end of the
registration requirement for each day the sex offender is out of
compliance.
2:25:30 PM
SENATOR HUGHES referred to Section 9 regarding sending or
posting an explicit image to the internet. She stated that
images could be circulated in other ways. For example, an
explicit image could be posted in a bathroom, on a bulletin
board, or mass texted. She asked if the administration was open
to public display language rather than just the internet.
MR. SKIDMORE responded that per AS 11.61.116, taking an explicit
photo and displaying it, the penalty would be a class B
misdemeanor when it is simply shared with someone else. For
example, if a person emailed the explicit photo to someone else,
it would be a class B misdemeanor. SB 187 refers to the sex
offender registration requirement, making it a class A
misdemeanor to post an explicit image on a website. He stated
the department absolutely would be open to other concepts.
2:26:58 PM
CHAIR HOLLAND referred to Section 12, which would add a new
subsection regarding a probation officer's power to arrest. He
asked if probation officers currently have the power to arrest.
MR. SKIDMORE answered that some officers in the Department of
Corrections have the authority to file charges. Probation
officers always have the authority to arrest for probation
violations. This provision would allow them to file a criminal
charge in court, which will be referred to the prosecutor's
office.
2:27:46 PM
SENATOR KIEHL referred to Section 7 regarding sex offender
registration. He asked for the interaction between other states'
registries and federal registries and if they share information
among the states.
MR. SKIDMORE answered that when Alaska prosecutes cases, some
information is shared. He deferred to Lisa Purington, Department
of Public Safety (DPS) to respond to specific questions about
the registry.
2:28:50 PM
SENATOR KIEHL wondered if the intent was that someone subject to
the registry would be able to file in Alaska and satisfy their
federal registration or if the person needed to file the
information twice.
MR. SKIDMORE answered that the person would not need to file on
the federal and Alaska registries. The federal registry applies
to someone who committed a federal crime that requires a
registry. The state registry applies to someone who commits a
state crime that requires a registry. The significance of
bringing the state into compliance is because the federal
government sets out guidelines for states and attaches purse
strings to those requirements. For example, Alaska will receive
specific federal dollars, but because the state is not 100
percent compliant, the state gets slightly less in certain
federal grants. This bill attempts to bring the state into
further compliance to receive that funding. Second, the state
would seek travel information. Suppose the sex offender intended
to travel from Alaska to Seattle for some time. This provision
would allow Alaska to share the additional details with Seattle,
so the State of Washington could monitor that offender. He
stated the hope would be to reduce the likelihood of the person
committing a sex crime against a victim in their state.
2:30:40 PM
SENATOR KIEHL asked if the expectation is that other states will
monitor sex offenders who have served their sentences and are
off probation and parole but are still on the Sex Offender
Registry.
MR. SKIDMORE answered that each state could decide what efforts
it will make to monitor sex offenders. He highlighted that when
Alaska is notified of those coming to Alaska, the state tries to
ensure that the person does not end up in an apartment right
next to a school. The determination of how much monitoring
occurs is a state-by-state policy call.
2:31:36 PM
SENATOR MYERS stated that this bill significantly increases the
amount of information sex offenders must supply to register on
the Sex Offender Registry. He said he is aware of at least one
case where someone used the Sex Offender Registry to target sex
offenders. He expressed concern about identity theft, especially
since the state experienced several data breaches. He asked if
requiring sex offenders to turn over this additional information
would subject the state to civil liability.
MR. SKIDMORE responded that the information that an offender
must provide to DPS does not equate with the information made
available to the public. For example, the offender would need to
provide their social security number. That information would
never be posted online. He explained that information is for law
enforcement to investigate or monitor the sex offender. The
department is always concerned about identity theft, but he did
not believe that having the additional information would subject
the state to additional civil liability. He stated that this
information is stored in the state's criminal justice databases
with greater protections than most other databases in the state
system. He acknowledged that this does not mean it is foolproof.
Still, the Federal Bureau of Investigation's Criminal Justice
Information System (CJIS) requires states to adhere to
additional steps to protect the information.
2:33:52 PM
SENATOR HUGHES related that the state has the worst sexual
assault problem in the nation. She further related that this is
one of three bills to address the issue. She expressed an
interest in the department providing an overview of the problem,
although she acknowledged that the state had taken steps to make
Alaska a safer state. She recalled that surveys had been given
to those impacted. She remarked that victims are not always
women.
SENATOR HUGHES asked if it was necessary to prove force or the
threat of force for sexual assault involving penetration.
MR. SKIDMORE answered yes.
SENATOR HUGHES recalled that victims sometimes freeze up due to
shock or fear. She envisioned that what started as harassment
could progress. In the less egregious situation, the bar is
higher, yet the person could freeze up and be sexually assaulted
to a worse degree. She asked for clarification.
2:36:13 PM
MR. SKIDMORE agreed that conduct could start off as sexual
contact that can progress to sexual penetration. Alaska's sexual
assault laws require force, per the Alaska Supreme Court ruling
in Dorsey v. State. He explained that SB 187 could address both
of those conducts. If sexual penetration occurs, the person
would be engaging in sexual contact. He characterized this as a
step in the right direction, but SB 187 would not solve
providing a new crime or a greater penalty for penetration.
However, SB 187 would criminalize that conduct. This type of
sanction could be argued during sentencing for the more
egregious conduct.
2:37:21 PM
SENATOR HUGHES acknowledged that this might not be solvable. She
stated that if this conduct started as contact and led to
penetration, it could lead to arrest, but that penalty is minor.
She said it seems that linkage was needed. The person should
receive a harsher penalty without proving force or threat of
force for sexual penetration. She asked if the department had
any ideas of how to accomplish this.
MR. SKIDMORE responded that this is an issue the Department of
Law has considered internally and with the administration. He
said he was unsure whether the administration and DOL had
decided on the approach to take. He agreed this issue needs
attention.
2:38:40 PM
SENATOR HUGHES asked if the department could provide different
options for the legislature to consider. She surmised that the
department had reviewed approaches taken by other states.
MR. SKIDMORE offered to do so, but he said he could not do so
today.
2:39:25 PM
CHAIR HOLLAND asked whether Alaska has statutory rape laws.
MR. SKIDMORE answered yes. Alaska has four different degrees of
sexual abuse of a minor, depending on the sexual contact or
sexual penetration. Other states sometimes refer to this law as
statutory rape.
2:40:15 PM
SENATOR KIEHL referred to harassment in the bill. He agreed all
of the conduct is bad behavior and should not be ignored. The
descriptions given in the presentation, including unwelcome
contact with genitals, are more severe than the language in the
bill. He expressed concern that an unwelcome hug between two
adults might be offensive, but it is chest-to-chest contact. He
asked whether the intention was to make that conduct a sex
felony.
MR. SKIDMORE answered that it would not be considered a sex
felony for several reasons. First, any prosecutions for
harassment in the first degree would not be considered a sex
crime for the enhanced penalties. He related that harassment in
the first degree would be a class C felony with 0-2 years,
whereas a sex felony would have a penalty of 2-12 years for a
first offense.
SENATOR KIEHL commented that it would be a registerable sex
offense the second time.
MR. SKIDMORE referred to a registerable sex offense, using the
hypothetical of an unwelcome hug. He explained that what
protects the person giving a hug is the mens rea, which requires
intentional engagement in the contact while being reckless that
the other person does not want that conduct. If the person is
not reckless to that fact, then no crime has been committed. He
pointed out that the first offense does not require
registrations, but a second offense would be registerable
because it creates a pattern, not that the department would want
to prosecute someone for an unwanted hug. However, when someone
consciously engages in offensive behavior by touching one of
three parts of the human body, it would be a crime but not a
registerable offense. When a person engages in that behavior for
a second time, ignoring what is offensive to someone by touching
one of three parts of the body establishes a pattern of sexual
offender behavior and would require registering on the Sex
Offender Registry.
2:43:37 PM
SENATOR KIEHL pointed out that this only relates to bad
behavior. He acknowledged that this was an overview, so he
preferred not to dig deeper. He asked why the bill specified
three areas of the body but did not include others, such as an
employer touching the person's inner thigh without contact to
their genitals or unwelcome kissing or licking.
MR. SKIDMORE answered the department took what the legislature
had already grouped and followed that same pattern. He stated
that touching the inner thigh, kissing, and licking can be
offenses, but they can be prosecuted as harassment. One change
made in Section 3, "knowingly subjects another person to offense
physical contact," constitutes criminal conduct, but it would
not be elevated to a higher level of touching the genitals, the
buttocks, or the female breast previously described. Second,
other laws indicate certain conduct or contact is not allowed in
the workplace. It is not criminalized, but substantial civil
penalties can be imposed for creating a hostile work environment
or sexual harassment in the workplace.
2:46:38 PM
SENATOR KIEHL stated he was less interested in criminalizing
what happens in the workplace than on a bus or in a movie
theater.
2:46:59 PM
CHAIR HOLLAND asked for the difference between the municipal
crimes of harassment compared to the proposed state crimes of
harassment.
MR. SKIDMORE related that some years ago, the Municipality of
Anchorage aligned its municipal code with the state code.
However, municipal codes can criminalize misdemeanor conduct,
but since this bill would create a felony penalty, it is not
something municipalities would be able to address. He was unsure
what MOA's current laws are related to harassment without
looking them up.
2:48:51 PM
CHAIR HOLLAND held SB 187 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 187 Highlights 2.14.22.pdf |
SJUD 2/23/2022 1:30:00 PM SJUD 2/25/2022 1:30:00 PM |
SB 187 |
| SB 187 Transmittal Letter.pdf |
SJUD 2/23/2022 1:30:00 PM SJUD 2/25/2022 1:30:00 PM |
SB 187 |
| SB 187 v.A Sectional 2.14.22.pdf |
SJUD 2/23/2022 1:30:00 PM SJUD 2/25/2022 1:30:00 PM |
SB 187 |
| Jason Wilson Resume_Redacted.pdf |
SJUD 2/23/2022 1:30:00 PM |
|
| Jedediah Cox functional CV_Redacted.pdf |
SJUD 2/23/2022 1:30:00 PM |
|
| Jeff Brown - APSC Interest.pdf |
SJUD 2/23/2022 1:30:00 PM |
|
| Jedediah Cox Application_Redacted.pdf |
SJUD 2/23/2022 1:30:00 PM |
|
| Jeff Brown Resume_Redacted.pdf |
SJUD 2/23/2022 1:30:00 PM |
|
| Jason Wilson Board Application_Redacted.pdf |
SJUD 2/23/2022 1:30:00 PM |
|
| Michael Craig Application_Redacted.pdf |
SJUD 2/23/2022 1:30:00 PM |