Legislature(2021 - 2022)BUTROVICH 205
03/02/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB182 | |
| SB189 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 189 | TELECONFERENCED | |
| += | SB 187 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 182 | TELECONFERENCED | |
SB 189-CRIME OF SEX/HUMAN TRAFFICKING
2:00:17 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 189
"An Act relating to sex trafficking; establishing the crime of
patron of a victim of sex trafficking; relating to the crime of
human trafficking; relating to sentencing for sex trafficking
and patron of a victim of sex trafficking; establishing the
process for a vacatur of judgment for a conviction of
prostitution; and providing for an effective date."
[SB 189 was previously heard on 2/28/22.]
2:00:43 PM
SENATOR MYERS referred to vacating a conviction. He related his
understanding that this is the first instance in which the
department will allow vacating convictions. He asked how the
Alaska Court System would treat it and how the department would
interact during the process.
2:01:17 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Criminal Division, Department of Law, Anchorage,
Alaska, responded that he could not speak on behalf of the
Alaska Court System. However, he outlined the process he
envisioned would occur if someone were to file a petition to
have a judgment vacated. He anticipated that the court system
would generate a form that would have the case information and
allow the prosecutor to indicate whether they oppose or do not
oppose the petition. If the petition were not opposed, the court
would likely grant it. If it were opposed, the court would set a
hearing, and the petitioner would present evidence to the court.
The person opposing the petition, presumably the prosecutor,
would examine the evidence, give their view, and ultimately a
judge would decide whether to vacate the conviction based on
legal standards.
2:02:58 PM
SENATOR MYERS surmised that most people convicted of
prostitution would likely qualify for a public defender.
MR. SKIDMORE answered that he was unsure but agreed that some
probably would qualify for a public defender.
SENATOR MYERS asked whether those applying to have their
conviction vacated would be eligible for a public defender.
MR. SKIDMORE answered that he had not examined the public
defender statutes to determine if that would fall within their
statutory authority but surmised that it probably was not
currently authorized. He indicated that it was possible to do so
if the committee decided it was appropriate to afford someone a
public defender or an attorney. He pointed out that under the
Alaska Constitution and the US Constitution, a person is
entitled to a defense attorney if they cannot afford one. Since
this vacates a conviction, this is not a matter of what the
Alaska Constitution requires. He noted that he was neutral on
the matter.
2:04:41 PM
SENATOR MYERS offered his view that it makes sense to do so. He
stated that he would like to ask the Alaska Court System for
comments.
2:05:44 PM
NANCY MEADE, General Counsel, Administrative Offices, Office of
the Administrative Director, Alaska Court System, Anchorage,
Alaska, agreed that the Alaska Court System would create a form
and process for vacating judgments. She referred to page 21,
lines 9-10, which states that the prosecuting authority shall
file a response within 45 days. She highlighted that many of the
cases for prostitution were prosecuted by the Municipality of
Anchorage (MOA). She reported that the database has over 1,000
convictions for prostitution, but most were municipal cases, not
state cases. This bill would require the MOA to file a response.
It may be helpful that if no response is filed or the response
is that MOA does not oppose vacating the conviction, it might be
more expedient to state in statute that the court shall grant
it.
2:08:03 PM
MS. MEADE said since someone would need to dig up the file from
an earlier date to vacate a class B misdemeanor issued years
ago, it likely would not be a great use of the court's time.
Otherwise, the court may need to set it for a hearing if MOA or
the department says this person was not a victim of sex
trafficking and that the conviction should stand.
MS. MEADE acknowledged Senator Myer's point on providing a
public defender for those seeking to vacate their convictions.
She offered her view that if the prosecuting authority doesn't
oppose it, it could be resolved quickly. She reported that the
public defender statutes do not include this authority. She
suggested that it would need a subsection to state that if the
person is indigent, the public defender is authorized to defend
them.
2:09:27 PM
SENATOR SHOWER asked whether changing the standard of proof from
a preponderance of the evidence to clear and convincing evidence
would reduce the amount of court time.
MS. MEADE responded that this was not something she had
considered. She offered her view that the department and MOA
would not oppose vacating convictions for sex trafficking cases.
She noted that the Alaska Court System did not ask for
additional clerical support in its fiscal note. She did not
think that the typical cases would be burdensome. She suggested
that in cases where the prosecuting authority opposes vacating
the conviction, the committee could clarify if it would like a
jury trial. She related that jury trials would add expense,
complexity, and additional time. She explained they are factual
findings, but the statute could say judges could rule on these
cases.
2:11:14 PM
MS. MEADE stated that concerning the burden of proof, the
preponderance of the evidence is just over 50 percent and that
the higher standard is clear and convincing evidence. She said
she would be skeptical that it would affect the court system's
workload.
2:12:03 PM
SENATOR SHOWER asked the Department of Law to comment.
MR. SKIDMORE opined that raising the burden of proof should not
be done. He offered his belief that it needs to remain a
preponderance of the evidence to protect the victims. He
explained that one reason to suggest that the judge make the
decision is to make it easier to vacate a conviction rather than
making it more complex by having a jury. He stated that a judge
could make a factual determination. He agreed with Ms. Meade
that the vast majority of the cases are MOA cases that would be
handled by the municipal attorney's office, not the Department
of Law.
2:13:18 PM
SENATOR HUGHES referred to page 21, lines 15-20, to the language
that presumes someone under the age of 18 is a victim. She asked
whether it would be helpful to identify instances when the sex
trafficker provided housing or drugs. She noted that Ms. Meade
suggested the process could be straightforward and avoid a
lengthy process such as a jury trial.
MS. MEADE responded that identifying those under the age of 18
at the time of the offense would be an entirely objective
determination. She related that this falls under rebuttable
presumption. However, people may disagree with the facts once it
gets beyond an objective determination. However, if the petition
stated the victim was on drugs and the sex trafficker only gave
the victim drugs if they engaged in the sexual behavior, it
would be a factual assertion, and the municipality or Department
of Law might disagree.
2:15:08 PM
MR. SKIDMORE agreed with Ms. Meade. He referred to page 6 to the
definition of "victim of sex trafficking," which lists the
criteria that guide the courts, petitioners, and prosecutors to
evaluate whether a person is a victim. He questioned whether
adding it someplace else might make it more cumbersome. He
deferred to the committee to determine if someone under the age
of 18 was coerced or coached but not willingly engaged in
prostitution.
SENATOR HUGHES asked whether the list should be referenced or if
it would be automatically referenced.
MS. MEADE opined that it would be automatic. The person must
prove that they were a victim of sex trafficking under AS
11.41.370(12). She stated that would be the cite people would
refer to, and when the court system creates the form, it would
ask if any of the criteria applied to the person. She envisioned
that the form would consist of checkboxes and fill-in lines for
information.
2:17:06 PM
MR. SKIDMORE responded that he viewed it as a bill drafting
issue. He deferred to Legislative Legal or the Department of Law
drafters as to whether it would be helpful and how they would go
about doing so. He couldn't think of a statute that makes that
connection.
2:17:49 PM
SENATOR KIEHL referred to page 21, Vacatur of judgment. Once the
court grants the petition, the Department of Public Safety may
not release information related to the conviction for
prostitution under AS 11.66.100(a)(1). He asked what the cross-
reference covers.
MR. SKIDMORE asked for clarification on the question.
SENATOR KIEHL asked what the cross-references to AS
11.66.100(a)(1) and AS 12.62(160(b)(6),(8), or (9) referred to
and what was left.
2:19:11 PM
MR. SKIDMORE answered that AS 12.62.160 refers to when the
Department of Public Safety (DPS) information is released. He
noted that DPS handles requests for this type of information for
the department.
SENATOR KIEHL noted he did not need the information immediately.
2:20:15 PM
MR. SKIDMORE explained that Ms. Purinton handles requests for
all types of information for job applications and other matters.
This statute guides what information the department can release.
2:21:01 PM
SENATOR SHOWER related his understanding from previous hearings
on the bill, that a significant amount of sex trafficking
happens to minors. He noted the statistics showed 72 percent of
children were living at home. He asked whether the
administration had a willingness to provide funding for
education. He wondered how to better inform school age children
how to get help, such as counseling.
MR. SKIDMORE answered that the topic was being discussed within
the administration. He was unsure whether the current education
included Bree's law since it highlights the warning signs of
dating violence and abusive behavior while focusing on
developing healthy relationships. He expressed the
administration's willingness to entertain suggestions. He
pointed out that some things can happen without changing the
law.
2:23:16 PM
SENATOR SHOWER clarified that he didn't want to change the bill
related to criminal penalties, but it seemed glaringly obvious
that the state should do better. He asked whether there was any
nexus with other states, federal or international laws, or
treaties since some activity crosses state lines or boundaries.
He wondered if he could highlight areas the committee should
consider in this bill or another bill. He offered to discuss
this further offline.
MR. SKIDMORE responded that the federal Mann Act criminalizes
the transportation of any woman or girl for prostitution,
debauchery, or any other immoral purpose across state lines. He
noted that other federal laws exist, although he is not an
expert on them. He stated that the US Attorney's Office was
already engaged in those prosecutions. These statutes were meant
to provide the tools for prosecutors within the state to address
the things that don't necessarily fall within the federal
jurisdiction. He reported that the Department of Law has
excellent and regular communication with state and federal
counterparts. He said nothing came to mind, but he offered to
make inquiries and report to the committee. He noted that this
was not the focus of SB 189.
2:26:13 PM
LISA PURINTON, Chief, Criminal Records and Identification
Bureau, Department of Public Safety (DPS), Anchorage, Alaska,
responded to Senator Kiehl's question on the release of
information in AS 12.62.160(b)(6),(8), or (9). She explained
that this provision references criminal history background
checks for employment or licensing purposes authorized by
another statute, or as Mr. Skidmore mentioned, for individuals
seeking a background check, such as a landlord seeking to check
out a potential renter.
2:27:17 PM
SENATOR KIEHL asked when the department would release
information about a vacated conviction.
MS. PURINGTON answered that the information would be available
for law enforcement criminal investigations and criminal justice
employment, in instances where the department was hiring
troopers or other law enforcement officers. She related that the
information on vacated convictions would still be viewable in
those instances.
2:27:53 PM
SENATOR HUGHES recalled Ms. Meade stating that a conviction of
prostitution could not be removed from CourtView if the person
had other convictions. She wondered if that could be addressed
to allow the administration to remove the prostitution portion
of the conviction.
MS. MEADE answered that the Alaska Court System could not remove
parts of a case from CourtView because, technologically, it
isn't possible. She explained that what the public sees on the
Alaska Court System's CourtView is a subset of the entirety of
CourtView, which is ACS's case management system. She explained
that ACS could not post things on the public portion since the
public portion is a subset of the court system's database. They
are not two separate databases. ACS cannot remove items from
CourtView without removing them from the official court records
in their entirety. She highlighted that it is essential for ACS
to keep accurate records of what occurred.
2:29:20 PM
MS. MEADE emphasized that this must get resolved in the bill.
She noted that other bills that the legislature is considering
or has passed state that a conviction could be removed from
CourtView if it is the only criminal conviction in that case.
She suggested that language would be easy to draft.
Alternatively, the committee could draft language to remove the
conviction from CourtView even if the person was convicted of
other criminal charges in the case. She viewed this as the
legislature's policy call. She maintained that the court system
could remove the entire case from CourtView or not at all. She
stated that she compiled data on the number of cases with
practicing prostitution convictions with other charges. As she
mentioned earlier, there are about 1000 cases with convictions
for prostitution, and of those, about 65 have other convictions
in the same case. She suggested that the committee might want to
consider vacating convictions of prostitution only if there were
no other convictions in the same case.
2:30:43 PM
SENATOR HUGHES asked for a range of other charges for the 65
cases.
MS. MEADE answered that she did not have that data. She surmised
that it might be a drug charge related to sex trafficking.
However, it could be an assault charge, evading arrest, or
murder.
2:31:27 PM
SENATOR KIEHL directed attention to page 18, which defines
sexual felony. Most of the language in Section 24 of SB 189
seems to conform to other changes in the bill. He noted that
language relating to the distribution of indecent materials to
minors was inserted. He stated that it was pretty broad.
MR. SKIDMORE asked if the question was what the crime currently
covers or the reason the language was added to the statute.
SENATOR KIEHL clarified that he was interested in what the crime
currently covers.
2:32:52 PM
CHAIR HOLLAND noted the intent was to take invited testimony and
set the bill aside.
2:33:13 PM
MR. SKIDMORE directed attention to AS 11.61.168 to the
distribution of indecent materials. This refers to someone
intentionally distributing material known to violate AS
11.41.455, which is the unlawful exploitation of a minor. This
crime would be a person producing a film or photo of someone
under the age of 18 engaged in simulated or actual sexual
penetration, touching, masturbation, bestiality, lewd
exhibition, sexual masochism, or sadism and distributing it to
another young person. He related his understanding that this
section had a drafting error, which he would provide to the
committee after reviewing it.
2:34:14 PM
CHAIR HOLLAND turned to invited testimony.
2:34:44 PM
TONY WEGRZYN, Sergeant, Alaska State Troopers, Department of
Public Safety (DPS), Wasilla, Alaska, provided invited testimony
supporting SB 189. He has served as a trooper for over 19 years,
assigned as a supervisor for the Special Crimes Investigation
Unit, responsible for investigating sex trafficking throughout
Alaska. He currently works in various roles to combat sex
trafficking, including working undercover, which provides
insight into the operational realities of prostitution and sex
trafficking. He previously worked as the unit supervisor for the
Major Crimes Unit, responsible for investigating serious felony
offenses such as homicide and sexual assault.
SERGEANT WEGRZYN stated his testimony would focus on supply and
demand and the risks to the public regarding sex trafficking. As
members know, SB 189 would create the new crime of patron of a
victim of sex trafficking. He emphasized the importance of
targeting sex traffickers and patrons that create the demand for
the victims of sex trafficking, especially underage victims. He
said sex trafficking relies on supply and demand. In the case of
sex trafficking, traffickers force sex workers for money. The
"johns" or patrons of the prostitutes provide the funding source
for sex trafficking. Law enforcement cannot combat sex
trafficking solely by targeting the supply; it must attack the
demand. This means the state must hold those who fund sex
traffickers accountable. Through investigative interviews, he
found many patrons ignore that their behavior supports sex
trafficking or that the prostitute was forced to perform the
sexual conduct under duress.
2:37:22 PM
SERGEANT WEGRZYN noted that some patrons knowingly or recklessly
disregard the victim's age. He related a recent assignment where
he posted an advertisement portraying a young female on an
escort website dedicated to advertising sex for money. He
reported that during the first 8 hours, he received interest
from 50 unique contact numbers, which indicates the demand for
this type of activity. Very few ever asked about the
prostitute's age or if they were being managed or acting
independently.
SERGEANT WEGRZYN explained that voluntary compliance with the
law requires several components. He stated that the Special
Crimes Investigation Unit is committed to investigating sex
trafficking and holding sex traffickers and patrons accountable.
He offered his belief that the penalty must be commensurate with
the public safety risk.
2:38:50 PM
SERGEANT WEGRZYN highlighted that sex traffickers institute
countermeasures to avoid detection. The patrons outnumber
traffickers 100 to 1. This bill proposes to elevate the conduct
of prostitution from a class B misdemeanor to a class A
misdemeanor, graduating the penalty to a felony if the person is
convicted three times within five years. He offered his belief
that updating these statutes is vital to deter patrons of sex
trafficking. Otherwise, the commission of the crime of
prostitution does not have a penalty commensurate with other
crimes. For example, during sting operations, potential patrons
of sex workers showed up armed with a handgun. The johns bring
the firearms for fear of being robbed. He explained that
prostitutes know johns engage in unlawful behavior, so they are
less likely to report a robbery. In 2017, he investigated a
murder where a john was assaulted, robbed, and his handgun was
stolen when he answered a prostitution advertisement. Shortly
after the john's handgun was stolen, a 16-year-old boy was
murdered. He noted that one website allows patrons to create a
username and enter a forum to discuss their encounters with
prostitutes. The website has a "rip-off" section, where patrons
can warn potential patrons by identifying which prostitute stole
their keys or wallets, which is a common occurrence during these
"dates."
2:41:46 PM
SERGEANT WEGRZYN related his experience where prostitutes were
assaulted during "dates." Some prostitutes either risk being
assaulted or killed or are recruited by a sex trafficker for the
perceived protection they would provide. He characterized that
as a "lose-lose" situation. He emphasized that one provision in
the bill has language that includes providing or withholding
substances as a mechanism of coercion or force used by sex
traffickers. He reported that in his interviews with independent
sex workers and women who have been sex trafficked, many were
addicted to controlled substances. Although the women are
already engaged in a high-risk lifestyle, their addiction to
controlled substances makes them especially vulnerable to sex
traffickers. He related that often the sex trafficker starts by
being the connection to controlled substances or drugs. Once
connected, the sex trafficker can manipulate and coerce the
women to sell themselves for the drug. This draws a distinct
relationship between the addictions to controlled substances and
human trafficking and sex trafficking. He stated that the bill
also contains other provisions that would provide needed tools
to effectively investigate these crimes and prosecute the
offenders engaged in this conduct.
2:43:54 PM
SENATOR SHOWER asked whether there were any incentives to
motivate those engaged in prostitution or human trafficking to
turn state's evidence against their sex trafficker or pimp.
MR. WEGRZYN answered that he could not identify anything that
would prevent or enhance law enforcement from doing their job.
He noted that he discussed the bill with the Department of Law.
2:45:36 PM
CHRIS DARNALL, Assistant Attorney General, Office of Special
Prosecutions, Criminal Division, Department of Law, Anchorage,
Alaska, provided invited testimony supporting SB 189. He stated
that his practice focuses on cybercrime and crimes with a
technological nexus, including internet crimes against children
and increasingly human and sex trafficking. He said he works
closely with law enforcement at the state, federal and local
levels. These law enforcement officers focus on sex trafficking,
human trafficking, and child sexual exploitation that uses
social media, cell phones, and other digital means to commit
trafficking offenses.
MR. DARNALL related his knowledge from working with law
enforcement partners on sex trafficking cases over the past few
years. First, he emphasized that human and sex trafficking occur
in Alaska. He stated that Alaska has illicit massage parlors,
prostitutes, and people working to the bone without pay wherever
vulnerable workers are employed. Human trafficking and sex
trafficking happen here, even if law enforcement does not see
shipping containers full of people passing through the ports.
2:47:25 PM
MR. DARNALL identified one of the significant problems for
prosecutors, which is that sex trafficking and human trafficking
is a hidden crime. Outside of an occasional sting or operation,
trafficking victims show up in domestic violence assaults, drug
possessions, and theft arrests. He said he rarely encounters
cases that start and end as a sex trafficking investigation. One
reason could be because sex trafficking victims themselves often
avoid law enforcement, and if they do speak, they might not
indicate that they are sex trafficked. He offered his view that
this reluctance may be due to previous bad experiences with law
enforcement, or they've been conditioned to view law enforcement
unfavorably. The result is that even if trafficking is
happening, it may not be as apparent as other crimes because
they are not reported, and the signs of sex trafficking are easy
to miss. If officers do not observe sex trafficking, they may
not refer the cases. If prosecutors do not believe that sex
trafficking statutes have sufficient penalties, they will not
impose charges. Further, there might be other charges with
harsher penalties than for sex trafficking.
2:48:48 PM
MR. DARNALL stated that sex trafficking cases are resource-
intensive with lower penalties than other crimes so that
prosecutors may pursue other cases. For example, he prosecutes
internet crimes against children, including unlawfully
exploiting a child by creating a recording of a child engaged in
sexual activity. He estimated that prosecuting someone for that
offense would involve two or three law-enforcement witnesses, a
records custodian, and the trial would take about one week. This
could convict someone of an unclassified sex felony sentence,
with a penalty of 15 to 25 years' incarceration, depending on
the victim's age. However, sex trafficking or human trafficking
cases use far more resources to prosecute and investigate. The
investigations take multiple officers, numerous interviews, and
numerous civilian witnesses, all of which takes considerable
time to prosecute. He recalled that the most recent human
trafficking case had 10 years of records. Simply reading and
organizing the case would take a prosecutor and investigator
days or weeks to complete.
2:50:35 PM
MR. DARNALL said it was difficult to decide to prosecute these
cases when prosecutors have a docket full of other equally
important cases with sentences that range up to 99 years. In his
experience, sex trafficking victims take up more time after
charges are filed than victims of other crimes. He recalled one
case in which sex trafficked victims sent story after story to
the prosecutor or called supervisors or other officers in an
attempt to exonerate the defendant. Each encounter required
providing discovery to the defense. These issues tend not to
happen in other cases. Further, the current penalty provisions
result in a sex felony sentence if someone under the age of 20
is being trafficked. He concluded that law enforcement officers
or prosecutors might arrest sex traffickers for other crimes
that could be more effectively applied than sex trafficking.
2:51:58 PM
MR. DARNALL suggested that the changes in the bill should make
it easier to bring sex trafficking cases to trial. He offered
his view the instituting felony penalties for committing sex
trafficking crimes helps justify law enforcement and prosecutors
spending significant time and resources preparing and
investigating these cases. He pointed out that prosecutors can
only handle a certain number of cases, so they must evaluate the
amount of work it will take.
2:52:48 PM
MR. DARNALL highlighted that the bill would allow law
enforcement to target illicit massage parlors. He commented that
there are online "reviews" of massage parlors discussing the
sexual services offered. He stated that operators of these
establishments are sometimes connected to organized crime.
Others are just savvy business owners, making illicit massage
parlors challenging to investigate. It often requires sending in
an undercover agent to make a prosecutable case. These cases put
officers at risk, require proving an owner intended to
facilitate prostitution, and currently result in a class C
felony. He remarked that it is difficult to prove specific
intent beyond a reasonable doubt.
2:53:45 PM
MR. DARNALL offered his view that the tiered system addresses
the most serious forms of human trafficking and sex trafficking.
He spoke in support of the expungement option since at trial,
witnesses can't be questioned about prior offenses that they
were forced to commit. He favored increasing punishments for
johns in a graded way that might actually help curb demand.
MR. DARNALL stated this bill creates a logical separation
between human trafficking and sex trafficking crimes. He
highlighted that the current statutes have some degree of
overlap for the commercial sex component. This bill will
strengthen the human trafficking statutes, which will enable
prosecutors to prosecute this activity. He highlighted that
people are being forced by human traffickers to work without pay
and not divulge their information. Traffickers coerce victims by
threatening to steal documents, report them to the authorities,
or go after them for a debt.
2:54:53 PM
CHAIR HOLLAND thanked Mr. Darnall.
2:54:56 PM
SENATOR KIEHL expressed concern that the prosecutor's office was
basing criminal justice on the amount of time and resources it
takes to prosecute cases and the potential length of prison
sentences. He stated that his work on the bill has nothing to do
with that approach to criminal justice or public safety in
Alaska.
CHAIR HOLLAND thanked the invited testifiers.
2:56:11 PM
CHAIR HOLLAND held SB 189 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 182 Summary of Changes (SJUD).pdf |
SJUD 3/2/2022 1:30:00 PM |
SB 182 |
| CS for SB 182 (SJUD).pdf |
SJUD 3/2/2022 1:30:00 PM |
SB 182 |
| CSSB 182 amendment 1 (SJUD).pdf |
SJUD 3/2/2022 1:30:00 PM |
SB 182 |