04/09/2010 09:00 AM Senate FINANCE

SENATE BILL NO. 222                                                                                                           
                                                                                                                                
     "An  Act   relating  to   the  crimes   of  harassment,                                                                    
     possession  of child  pornography, and  distribution of                                                                    
     indecent material  to a  minor; relating  to suspending                                                                    
     imposition of  sentence and conditions of  probation or                                                                    
     parole   for   certain   sex  offenses;   relating   to                                                                    
     aggravating   factors   in  sentencing;   relating   to                                                                    
     registration  as a  sex  offender  or child  kidnapper;                                                                    
     amending Rule  16, Alaska Rules of  Criminal Procedure;                                                                    
     and providing for an effective date."                                                                                      
SUE MCLEAN,  DIRECTOR, CRIMINAL DIVISION, DEPARTMENT  OF LAW                                                                    
explained  that SB  222 makes  important changes  to several                                                                    
different   provisions  within   the  criminal   laws,  some                                                                    
necessitated  by court  decisions,  oversights,  or for  the                                                                    
purpose  of improving  criminal law  as it  pertains to  sex                                                                    
offenses.  The  bill  provides elements  for  the  crime  of                                                                    
failure to register as a  sex offender, which clarifies that                                                                    
the  mental state  for the  crime is  that the  person knows                                                                    
that  they must  register. She  stated that  this creates  a                                                                    
Class  A   misdemeanor  defense  of  harassment   for  those                                                                    
situations in which a victim  is subjected to a sexual touch                                                                    
over the  clothing but does  not have  time to voice  his or                                                                    
her lack  of consent.  If a  person has  two such  crimes of                                                                    
harassment  the  second  requires   registration  as  a  sex                                                                    
offender.  The  bill  amends the  distribution  of  indecent                                                                    
materials to  minors provision to prohibit  any distribution                                                                    
of pornography to minors. One  added section provides that a                                                                    
portion  of  the  proof  must  show  that  the  pornographic                                                                    
material  is  harmful  to  minors.   The  bill  corrects  an                                                                    
oversight   regarding  state   regulation   in  respect   to                                                                    
pornography. She mentioned that  Section 13 removes the word                                                                    
substantially   when   describing   a   crime   in   another                                                                    
jurisdiction  that would  disallow  the use  of a  suspended                                                                    
imposition  of   sentence.  The  bill  adds   conditions  of                                                                    
probation  so  that  courts may  require  sex  offenders  to                                                                    
provide  email  or  other electronic  network  addresses  to                                                                    
their  probation  officer  and  the  probation  officer  may                                                                    
provide  them to  the police.  The bill  amends the  current                                                                    
aggravating   factors  providing   that  the   sentence  was                                                                    
aggravated by a factor in  which the victim was particularly                                                                    
vulnerable.  A   requirement  was   added  that   local  law                                                                    
enforcement report  sex crimes  to the department  of public                                                                    
safety for  statistical purposes and providing  that DPS has                                                                    
the authority to  withhold funding if reports  are not made.                                                                    
One  section permits  the Attorney  General to  administrate                                                                    
subpoenas to internet providers in  crimes in which there is                                                                    
reason to  believe that  an internet  account has  been used                                                                    
for the exploitation  of children. The bill  amends the rule                                                                    
pertaining   to  crimes   involving  child   pornography  to                                                                    
prohibit  the  court  from  ordering  that  the  pornography                                                                    
itself be  discovered directly to  the defense  or defendant                                                                    
preventing further distribution. The  bill adds a section to                                                                    
the  uncodified law  of Alaska  clarifying  that the  mental                                                                    
state for failure  to register as a sex  offender is knowing                                                                    
that  one had  to  register, one  failed to  do  so and  the                                                                    
mental state does not attach to the failure to do so.                                                                           
                                                                                                                                
9:55:19 AM                                                                                                                    
                                                                                                                                
Senator Thomas observed that  the mentioned changes "tighten                                                                    
up"  the  existing  legislation  to  allow  for  appropriate                                                                    
prosecution.  Ms.  McLean  concurred   and  added  that  the                                                                    
department  has seen  court cases  in which  the court  held                                                                    
that  a  person  who  accesses child  pornography  with  the                                                                    
intent to  view it  does not possess  it. This  bill changes                                                                    
the law to read that  if a person accesses child pornography                                                                    
with the intent to view it, which is also a crime.                                                                              
                                                                                                                                
Senator Olson asked how many  people will be affected by the                                                                    
tightening  of these  loopholes. Ms.  McLean responded  that                                                                    
she  had   difficulty  quantifying  the  number   of  people                                                                    
affected by  the legislature. She noted  that the department                                                                    
has prosecutions that cannot go  forward without the changes                                                                    
in  the law.  Alaska has  a high  rate of  sexual abuse  and                                                                    
sexual assault  leading to  a variety  of offenses  to which                                                                    
these changes will apply.                                                                                                       
                                                                                                                                
9:56:59 AM                                                                                                                    
                                                                                                                                
Senator Ellis  asked about Section  19, which appears  to be                                                                    
an expansion  of power  for the  Attorney General.  He asked                                                                    
about  the current  state of  the law  and the  expansion of                                                                    
administrative subpoena  powers. He  stated that he  did not                                                                    
know the  difference between an administrative  subpoena and                                                                    
a  regular  subpoena.  Ms.  McLean  replied  that  with  the                                                                    
current state  of the law, internet  providers are unwilling                                                                    
to provide  information about an internet  account without a                                                                    
search warrant or subpoena. The  department has no authority                                                                    
for issuing  a subpoena  except to  subpoena materials  to a                                                                    
grand jury and  the grand jury must already  be convened and                                                                    
investigating. The  power to  the Attorney  General prevents                                                                    
the  law enforcement  officers  from  entering the  involved                                                                    
process  of  obtaining  a  search  warrant  for  the  simple                                                                    
purpose  of determining  who owns  an internet  account used                                                                    
for the exploitation of children.                                                                                               
                                                                                                                                
9:59:01 AM                                                                                                                    
                                                                                                                                
SEARGENT   DEREK  DEGRAFF,   ALASKA   STATE  TROOPERS   (via                                                                    
teleconference)  summarized  the   process  of  acquiring  a                                                                    
search warrant  to obtain  subscriber records.  The subpoena                                                                    
would  provide  a  tremendous  savings  to  law  enforcement                                                                    
officers  in terms  of man  hours while  identifying suspect                                                                    
accounts.                                                                                                                       
                                                                                                                                
Senator Thomas asked  about the language on  Page 3, Section                                                                    
4. He  asked about the  removal of language and  whether the                                                                    
material regarding the crime of  distribution remains in the                                                                    
CS. Ms.  McLean stated that  the law limits the  conduct and                                                                    
cleans up  the language. The  language on Page 3,  Section 4                                                                    
is covered in other parts of the bill.                                                                                          
                                                                                                                                
10:03:20 AM                                                                                                                   
                                                                                                                                
Co-Chair  Hoffman pointed  out six  fiscal notes,  four from                                                                    
the  Department of  Administration, Department  of Law,  and                                                                    
the Alaska Court  System. He continued with  one fiscal note                                                                    
from  the  Department  of  Public  Safety  for  $123.500  in                                                                    
general funds to  enhance data collection and  hire one full                                                                    
time  criminal justice  specialist.  The  final fiscal  note                                                                    
from the Department  of Corrections begins in  FY12 when the                                                                    
department anticipates additional funding  to cover the cost                                                                    
of increased numbers of prisoners.                                                                                              
                                                                                                                                
10:04:09 AM                                                                                                                   
                                                                                                                                
JEFFREY   MITTMAN,   EXECUTIVE   DIRECTOR   AMERICAN   CIVIL                                                                    
LIBERTIES   UNION   (ACLU),  ALASKA   (via   teleconference)                                                                    
highlighted   Section   19  regarding   the   administrative                                                                    
subpoena  power.  The  ACLU takes  seriously  the  issue  of                                                                    
sexual abuse. When  a neutral third party who  has the power                                                                    
to  oversee the  requests is  removed a  door is  opened for                                                                    
abuse.  He mentioned  documentation from  the United  States                                                                    
Department   of   Justice    showing   that   when   similar                                                                    
administrative  subpoenas   were  allowed  to   the  federal                                                                    
government,  in  fact  abuses  did  occur.  The  records  of                                                                    
reporters were  accessed. The records of  innocent Americans                                                                    
were  accessed  when  irrelevant to  an  investigation.  The                                                                    
problem  is  not  the  intention of  the  section,  but  the                                                                    
problem   is  that   it   opens  the   door   to  abuse   by                                                                    
implementation of  the section.  Alaskan judges  realize the                                                                    
value of  warrants and  serve as  the necessary  third party                                                                    
check  to ensure  that  improper activity  by  DOL does  not                                                                    
occur.  He   pointed  out  Section  16   where  evidence  is                                                                    
restricted  to  be  viewed by  defense  attorneys  or  their                                                                    
experts  in   the  offices  of   a  prosecutor  or   of  the                                                                    
government. The rule change places  at risk convictions that                                                                    
could  be obtained  at  trials of  those  involved in  child                                                                    
pornography by providing a necessary appeal.                                                                                    
                                                                                                                                
10:07:32 AM                                                                                                                   
                                                                                                                                
DAVID  KAZARIAN, CITIZENS  FOR  CHANGE (via  teleconference)                                                                    
stated  that Section  17  states that  sex  offense means  a                                                                    
crime or  similar law of  another jurisdiction in  which the                                                                    
person committed or attempted to  commit a sexual offense or                                                                    
similar  offense  under the  law.  He  opposed the  bill  as                                                                    
written in that  holding persons in Alaska to  laws of other                                                                    
states   imposes  unconstitutionally   imposed  registration                                                                    
requirements  upon individuals  who  have  been labeled  sex                                                                    
offenders.  If  a  person  lives   in  another  state  which                                                                    
retroactively requires  that person to register  for a crime                                                                    
committed 50 years ago in  another state to then register in                                                                    
Alaska.  The  Alaska  Supreme  Court  ruled  ex  post  facto                                                                    
registration requirements  to be unconstitutional  and added                                                                    
punishment to  a person  who already  served out  a complete                                                                    
sentence. If a person lives  crime free for decades, he does                                                                    
not deserve harassment or punishment.                                                                                           
                                                                                                                                
10:11:06 AM                                                                                                                   
                                                                                                                                
SB  222  was  HEARD  and   HELD  in  Committee  for  further                                                                    
consideration.