Legislature(2021 - 2022)BUTROVICH 205
03/09/2022 01:30 PM Senate JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| SB187 | |
| SB189 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 187 | TELECONFERENCED | |
| += | SB 189 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 187-HARASSMENT; SEX OFFENDERS & OFFENSES
1:34:20 PM
CHAIR HOLLAND 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."
[SB 187 was previously heard on 2/23/22, 2/25/22, 3/4/22, and
3/7/22. Public testimony was opened and closed on 3/4/22.
1:34:37 PM
SENATOR SHOWER moved to adopt the committee substitute (CS) for
SB 187, work order 32-GS2031\G, as the working document.
CHAIR HOLLAND objected for discussion purposes.
1:34:57 PM
ED KING, Staff, Senator Roger Holland, Alaska State Legislature,
Juneau, Alaska, reviewed the changes in the committee substitute
(CS) for SB 187, Version A to Version G, on behalf of the
committee.
[Original punctuation provided.]
1:35:06 PM
SUMMARY OF CHANGES
(VERSION A TO VERSION G)
I. Version G adds new sections (1-7) altering the
language in AS 11.41.410 - 11.41.530 (sexual assault)
to change the definition of consent, close the
loophole regarding nonconsensual sexual contact
without the use of force, and to create a clear
gradation of sexual assault classifications.
II. Sections 1 and 2 of version A were deleted to
conform to the reclassification of the class C Felony
level behavior from AS 11.61.117 (harassment) to AS
11.41.425 (sexual assault).
III. Section 3 of version A is now section 9 of
version G. It now removes the areas of the body
covered under sexual assault and adds the pelvis and
inner thigh to the class A misdemeanor harassment law.
IV. Section 8 of version G is new language to update
what it means to publish an image of a minor to the
Internet.
V. Conforming changes were made to section 4 of
version A (now section 10 of version G).
1:36:03 PM
VI. No changes were made to section 5 or 6 of version
A (now sections 11 and 12 of version G).
VII. Section 7 of version A is now section 13 of
version G. The requirement to appear in person when
making or changing travel plans was deleted.
VIII. Section 8 of version A is now section 14 of
version G. Technical drafting changes were made to
this section.
IX. Section 9 of version A is now section 15 of
version G. The sex offender registration requirement
for AS 11.61.116(c)(2) (publishing certain images of a
minor to the Internet) was amended so that it is
registerable on the first offense if the image
includes the victim's name and on the second offense
otherwise.
1:36:37 PM
X. Technical drafting changes were made to sections 10
14 of version A (now sect-ions 16 20 of version G)
XI. Section 15 of version A was deleted due to the
deletion of the proposed AS 11.61.117 (class C Felony
harassment).
II. No change to section 16 of version A, which is
section 21 of version G.
XIII. Section 17 of version A was deleted to preserve
the class A misdemeanor harassment law.
XIV. No change to the applicability or effective date
sections.
1:37:15 PM
CHAIR HOLLAND removed his objection; he heard no further
objection, and Version G was before the committee.
1:37:39 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, Juneau, Alaska,
noted the significant changes related to the sexual assault
provisions in statute. The department has redefined "without
consent" and has rewritten the harassment statutes. As Mr.
Skidmore mentioned, in order for something to qualify as sexual
assault in Alaska, there must be the threat of force or the use
of force. Without that, any type of sexual contact or
penetration does not qualify as sexual assault. The current
definition ignores how these offenses generally happen,
including the freeze response from the victim. The original
version of SB 189 attempted to address this issue with the
harassment statutes. However, that did not address the heart of
the matter. The administration approves this approach, one that
has been discussed by some members of the legislature since
2019. This approach has been adopted by several other states.
Some of the language in Version G is almost verbatim to Montana
statutes.
1:39:20 PM
SENATOR HUGHES commended the department for the amendments to
the bill that elevated sexual assault penalties beyond the
harassment level.
1:40:00 PM
SENATOR SHOWER asked whether the department had statistics from
other states using the approach taken in SB 187 that showed any
reductions in sexual assaults. He expressed an interest in
achieving a balanced approach to avoid capturing behavior such
as innocent touching that might happen when students are dancing
at a college party. He emphasized that the legislature doesn't
want to ruin someone's life by criminalizing behavior because
someone had too much to drink at a college party.
1:41:50 PM
SENATOR KIEHL asked if the department could review how the
severity of offenses differ with the use of force or without
consent.
MS. SCHROEDER directed attention to Section 5 on page 4, lines
28-30. She read the definition of "without consent."
"without consent" means that, under the totality of
the circumstances surrounding the offense, there was
not a freely given, reversible agreement specific to
the conduct at issue;
MS. SCHROEDER emphasized that those elements are important ones
and are used in other states that have adopted this approach to
address sexual assault. Consent needs to be freely given,
reversible, and analyzed under the totality of the
circumstances. She read the definition for "freely given."
"freely given" means a positive expression of
agreement, by word or action, given under the person's
free will.
1:43:05 PM
MS. SCHROEDER related that Section 4 identified further
descriptors. She read AS 11.41.445(c)(1).
(1) and expression of lack of consent through words or
conduct, including in action, means there is no
consent; And expression of lack of consent to under
the paragraph does not require verbal or physical
resistance;
MS. SCHROEDER stated that under the current law, if a victim
says no and there is no force, it does not constitute a sexual
assault. This provision would remedy that conduct.
1:43:29 PM
MS. SCHROEDER referred to Section 4, page 4, line 18, noting
that paragraph (2) reads:
(2) a current or previous dating, social, or sexual
relationship or the manner of dress of the person
involved with the defendant in the conduct at issue
may not by itself constitute consent;
MS. SCHROEDER highlighted that paragraph (3) speaks to the
professional purpose. For example, this would relate to an
instance in which a person would say that they needed to touch
the other person in this way because it is therapeutic. Thus,
the victim is basically coerced by fraud to believe that it is
therapeutic when it actually is a sexual assault.
MS. SCHROEDER reiterated that the current definition in statute
for "without consent" does not mention force or the threat of
force.
1:44:15 PM
MS. SCHROEDER referred to Section 1, page 1, lines 9-12, to
sexual assault in the first degree, which would be when an
offender engages in sexual penetration with the use of force or
the threat of force, or if the defendant causes the victim to
become incapacitated. This bill does not change this
unclassified offense in current law.
1:44:37 PM
MS. SCHROEDER stated that Section 2, AS 11.41.420(a)(1)(A) on
page 2 relates to sexual contact with the use of force or the
express or implied threat of force or if the offender causes the
person to become incapacitated. She further stated that this
provision is current law. She directed attention to page 3, line
8, to new language related to an offender engaging in sexual
assault in the second degree, a class B felony. This relates to
engaging in sexual penetration without the use of force but
without consent. She referred to page 4, line 9, which relates
to an offender engaging in sexual contact without the use of
force, but without consent, which would be a class C felony.
MS. SCHROEDER explained that the department still classified the
conduct using force at the highest level, but the penalties are
ratcheted down in situations without consent and no force.
1:46:02 PM
SENATOR SHOWER asked how the marriage defense for rape ties into
this bill. He offered his belief that it was House Bill 49.
MS. SCHROEDER agreed that under House Bill 49, the marriage
defense was removed. She elaborated that marriage is no longer
an excuse for sexual assault. However, the defense for marriage
provision relates to whether the person consented to the act for
which the offender is charged, while capable of understanding
the nature and consequences of the offender's conduct. This
means that if there is consent, no offense was committed.
SENATOR SHOWER thanked her for clarifying the provision.
1:47:40 PM
At ease
1:48:10 PM
CHAIR HOLLAND reconvened the meeting.
1:48:20 PM
SENATOR KIEHL turned to Section 4, paragraph (2), which read, "a
current or previous dating, social, or sexual relationship or
the manner of dress may not by itself constitute consent." He
questioned what the language "manner of dress by itself" meant.
MS. SCHROEDER responded that concept had been discussed for many
years by the legislature. It also appears in other states'
statutes, such as Montana. She related that the Department of
Law suggested that there would not be any harm in including it
if the legislature agreed. She cautioned that an absolute bar on
considering the manner of dress would negate some of the
totality of the circumstances analysis. She explained that it
might interfere with some defendants who had a prior
relationship, such that the person wore clothing that signaled
something special to them, so they initiated contact. In those
rare circumstances, a defendant could still use that defense.
Although it would not negate the recklessness entirely, the
person could say that was the signal every other time the couple
engaged in sexual relations.
SENATOR KIEHL stated that it would never be okay for someone to
say that they met a person for the first time, and the person
was scantily clad, which meant the person was consenting to have
sex.
1:50:45 PM
SENATOR KIEHL offered his view that what Ms. Schroeder described
could be elements of a previous dating, social or sexual
relationship, but including the manner of dress wouldn't justify
initiating sexual contact solely. He expressed concern about
having it as an element.
MS. SCHROEDER said she understood his concern. She stated that
articulating the fact pattern was uncomfortable. She explained
that even if a defendant said this element caused them to
believe the act was consensual, the prosecutor would always look
at what else happened. Just because someone wore clothing that
they previously wore does not mean the person consented. She
emphasized that it was up to the legislature to decide; however,
she would caution against a total bar due to the totality of
circumstances analysis the Department of Law conducts. She
cautioned that she does not want to imply that these are
arguments the Department of Law receives in court. If a
defendant made such an argument, they would do so at their
peril. She was unsure this language addressed a problem,
although it seemed important to some to include it, and other
states adopted similar provisions.
1:52:51 PM
CHAIR HOLLAND asked if the term "by itself" appears elsewhere in
this bill.
MS. SCHROEDER answered no. She reiterated that an offender could
not say someone wore "x" and therefore the sexual relations were
consensual. She envisioned that it would rarely arise.
1:54:01 PM
SENATOR HUGHES commented that some men have pointed out that a
male can be a sexual assault victim, and a male could also be
scantily dressed. She highlighted that those offenses might not
always be reported since for cultural reasons.
SENATOR HUGHES asked whether the number of reported sexual
assaults would initially go up once the need to prove force or a
threat of force was removed. She offered her belief that some
offenders have been using this to their advantage to assault
multiple victims sexually. She surmised that the rates of
incidence would go down over time.
1:55:40 PM
SENATOR HUGHES referred to Section 9, on page 6, lines 9-10 of
Version G. The original bill included the language "genitals,
buttocks, or female breast." She had suggested adding the
language "pelvis" and "inner thigh," and to remove the word
"female." She said she had anticipated the committee substitute
would read, "genitals, buttocks, pelvis, inner thigh, or
breast." She asked why the language "genitals, and breast" were
removed from this provision.
MS. SCHROEDER responded that the Department of Law has no
comment on whether the committee would like to address "male
breasts" in the bill. She explained that the department removed
the language "genitals, female breasts, and semen" to separate
the sexual assault statutes from the harassment statutes.
Currently, the language includes intent to harass or annoy and
the use of force element. She stated that removing the use of
force element from the sexual assault statutes creates some
overlap. The Department of Law would like to avoid a rule of
lenity argument, such that the offender argues that lower
offense was what they committed, so it wasn't a sexual assault
and they must be charged with harassment. The department
included the mental state "intentional," language "under
circumstances not prescribed," and a separation of body parts to
achieve a clear separation. If the committee had concerns, one
option would be to decide what body parts should fall under the
harassment statutes. The department would still like to retain
the intentional mental state and the "under circumstances not
proscribed." She offered her view that those changes would
provide enough separation; however, it would be less precise
than the current language in Version G.
1:58:25 PM
SENATOR HUGHES asked her to identify what crime is "touching
directly or through clothing another person's genitals or
breasts" would become.
MS. SCHROEDER answered that the crime would be a sexual assault
if it were without consent.
1:58:44 PM
SENATOR KIEHL referred to Section 9, which raises the question
of how to treat unwanted contact with semen. He recalled
discussions the committee held on House Bill 49 in 2019. He
offered his view that those statutes had a tiered level of
severity. This bill would unintentionally remove part of when
any undesired contact becomes a felony sex offense. He expressed
concern that what gets elevated, inconsistent with other
criminal behavior, is the nonsexual contact. The various body
fluids in the harassment statutes originated, in part, when
inmates were having bodily fluids thrown at them. He
acknowledged that behavior deserves to be criminalized, but it
is not sexual conduct. He suggested the committee might amend
this provision, so flinging semen would not be in the same class
as sexual felonies. Otherwise, he found the committee
substitute's approach to this unwelcome contact has an
appropriate structure to the crimes.
2:01:02 PM
MS. SCHROEDER responded to Senator Shower's earlier concern
about college students attending a party and miscommunication
occurred. She related that the department must consider mental
states not specific in this bill. However, the offender's mental
state will guide the Department of Law away from
miscommunications. She stated that the mental states for sexual
assault require that the person act knowingly, meaning the
offender must know they are engaging in a sexual act. The person
must also have a reckless disregard for the lack of consent. She
paraphrased a portion of the definition [AS 11.81.900(a)(3).
(3) a person acts "recklessly" with respect to a
result or to a circumstance described by a provision
of law defining an offense when the person is aware of
and consciously disregards a substantial and
unjustifiable risk that the result will occur or that
the circumstance exists; the risk must be of such a
nature and degree that disregard of it constitutes a
gross deviation from the standard of conduct that a
reasonable person would observe in the situation;
MS. SCHROEDER stated that the department believes that this
definition will prevent prosecutors from charging someone when
miscommunications occur. The prosecutors will consider the
totality of the circumstances. However, the department doesn't
want people to be afraid to date or engage in sexual behavior
that is normal and healthy for people. Further, the department
must prove these cases before a jury beyond a reasonable doubt,
which is the highest standard in the law. She cautioned members
that while the department might charge more cases under this
language, proving them will not be easier. She stated that
sexual assault is the only area in the criminal code that, but
for the circumstances surrounding the offense, the conduct would
be legal. Consenting people engage in sexual activity all the
time, but the circumstances that surround the act differ. Often
sexual assaults occur with few witnesses and without substantial
evidence, physical or otherwise, making these cases challenging
to prove.
2:03:16 PM
SENATOR SHOWER highlighted that the committee discussions will
show that the committee was cautious in its approach. He
expressed concern about capturing and ruining the lives of
younger individuals who might do something stupid that they
might not have done if they were older or more mature. He
offered his belief that legislative intent matters. The
committee intends to give the Department of Law the tools it
needs, to respect everyone in the process, but not to hurt
citizens.
2:04:37 PM
CHAIR HOLLAND held SB 187 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CS for SB 187 (SJUD).pdf |
SJUD 3/9/2022 1:30:00 PM |
SB 187 |