Legislature(1997 - 1998)
05/05/1998 07:30 PM House FIN
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* first hearing in first committee of referral
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SENATE BILL NO. 323
"An Act relating to sexual offenses, to those who
commit sexual offenses, and to registration of sex
offenders; amending Rule 6(r)(2), Alaska Rules of
Criminal Procedure; and providing for an effective
date."
KRISTIE TIBBLES, STAFF, SENATOR DRUE PEARCE, explained that
the use of children in the production of sexually explicit
material, including photographs, films, videos, and
computer images is a form of sexual abuse that can result
in physical or psychological harm to the children involved.
Individuals who utilize children as sexual objects or are
sexually attracted to children often seek out and collect
sexually explicit materials for their own sexual
gratification.
Ms. Tibbles pointed out that access to the Internet has
become one of the preferred methods of distributing and
collecting child pornographic materials; several
investigations across the country have revealed thousands
of pieces of child pornography in the hands of child
pornographers. Congress passed the Child Pornography
Prevention Act in 1996 and several states are taking action
to strengthen their pornography laws.
Ms. Tibbles continued, the Alaska penalty for distribution
of child pornography, a Class C felony, is not more than
five years. Law enforcement officers are encountering
problems in trying to prove distribution. Offenders are
often charged with or plead down to possession of child
pornography, a Class A misdemeanor offense with a penalty
of not more than one year in prison, unless the offender is
convicted of more than one count and receives a consecutive
sentence. SB 323 would increase the offense for possession
of child pornography to a class C felony, and the offense
for distribution to a Class B felony offense, punishable by
not more than 10 years in prison.
Ms. Tibbles pointed out that SB 323 also would create the
offense of indecent exposure in the first degree if the
offender knowingly masturbates within the observation of a
person under 16 years of age. The crime will be a Class C
felony offense. The bill makes the existing offense of
indecent exposure, indecent exposure in the 2nd degree.
The penalty for this offense is a Class A misdemeanor when
committed before a person under 16 years of age, and a
Class B misdemeanor when committed before a person 16 years
or older.
Ms. Tibbles explained the SB 323 would require sex offender
registration for the offenses of indecent exposure in the
first degree, indecent exposure in the second degree if
committed before a minor under the age of 16 for the second
offense, and possession of child pornography. Currently,
only offenders who are convicted for distribution of child
pornography are required to register.
Ms. Tibbles summarized that the existence and distribution
of child pornographic images creates the potential for many
types of harm in the community and presents a clear and
present danger to all children. Strengthing the penalties
for these crimes send a clear message that the degradation
and exploitation of our children will not be tolerated.
Agencies in support of SB 323 include the Department of
Public Safety, the Alaska Peace Officers Association, the
Anchorage Police Department, UAF Police, and STAR.
JAYNE ANDREEN, EXECUTIVE DIRECTOR, COUNCIL ON DOMESTICE
VIOLENCE AND SEXUAL ASSAULT, JUNEAU, voiced support of the
proposed legislation.
Representative Grussendorf questioned the proposed title of
offense of "possession" of child pornography. He thought
that "possession" was proposing a bit too stiff penalty.
Ms. Andreen pointed out that there is a network that takes
place for people who are interested in these types of
materials. These are materials that are explicitly set up
to sexualize children. She stressed how frightening it is
that people are preying upon children for sexual
gratification.
Representative Martin echoed the avalability of vicious
materials taking advantage of children. Representative J.
Davies inquired the placement in statute of the definition
of "child pornography". Ms. Tibbles replied that the
statute that pertains to possession refers back to that
definition under the exploitation of a child. The statute
site for possession of pornography is AS 11.61.127, and was
included on Page 3 of the bill.
Representative Grussendorf reiterated that current state
law seems adequate when addressing "possession". He
questioned the need to escalate it to a Class C felony.
Representative J. Davies agreed that the "effort" should be
made to "stamp out" those people who are producing the
materials. He asked if there was evidence which correlates
the possession of child pornography to other kinds of
exploitation of children. Ms. Andreen replied that there
is a very significant connection between them, which is
part of the entire cycle occurring at this time. She
emphasized that with the Internet accessibility, it has
become an industry.
Representative J. Davies warned the possibility of those
who are curious, surfing the Internet, and the need to
establish the gray areas, so that the otherwise innocent
are not tracked. He asked if there was a way to draw a
line and limit, perhaps including a rebuttal defense.
Representative Kelly asked if possession would include the
casual surfer pursuing the Internet.
REPRESENTATIVE ETHAN BERKOWITZ responded that it was
possible to possess without intending to "possess". He
agreed this could create problems and that these issues
were discussed in the House Judiciary Committee.
Representative J. Davies asked if including "intentional"
or "knowing" possession could address the problem on Page
3, Line 2. Representative Kelly thought that "knowingly"
would be easier to prove. Representative Berkowitz
explained that "possession" was the exercise of dominion
and control over an object. Representative J. Davies
inquired if storing an images on the computer would be
classified as possession. Representative Berkowitz could
not answer that.
Representative Kelly MOVED to adopt Amendment #1.
Representative Mulder OBJECTED. Representative Berkowitz
asked that Lines #1 - #3 be deleted from the amendment. He
explained that the amendment would address indecent
exposure in a crowded situation. He stated that such an
act would be difficult to prove that it was directed at a
specific individual. Representative Kelly MOVED to amend
Amendment #1. There being NO OBJECTION, it was amended.
There being NO OBJECTION to the amended Amendment #1, it
was adopted.
Representative Mulder questioned the point at which a
person would move beyond curiosity and into collection.
Representative Berkowitz advised that testimony in the
House Judiciary Committee indicated that a collection of
over 100 was clearly a serious collector with a high
correlation of trading and sexual assaults.
Following discussion regarding trading and possession,
Representative J. Davies MOVED to amend Page 3, Line 2,
inserting "knowing" before "possession". There being NO
OBJECTION, it was adopted. Co-Chair Therriault noted that
the Legislative drafters should phrase that language
appropriately.
Representative J. Davies questioned if there should be a
distinction between "possession" as a Class A misdemeanor
and "knowing possession" as a Class C felony.
Representative G. Davis pointed out that distribution is
the problem, not the possession. Representative Berkowitz
elaborated that there is no limit to the number of counts
that a person could possess.
Representative Mulder spoke to the fiscal note.
BRUCE RICHARDS, PROGRAM COORDINATOR, OFFICE OF THE
COMMISSIONER, DEPARTMENT OF CORRECTIONS, noted that the
Department had submitted an unsigned fiscal note.
(Tape Change HFC 98-157, Side 1).
Mr. Richards remarked that he had spoken with the Anchorage
Police Department asking them what the anticipated caseload
would be, based on previous experience. They anticipate
three cases a year. The Department's submitted analysis
provides the cost to cover that projected average.
Representative Mulder noted that he would support the
original fiscal note which represented a lesser amount.
Mr. Richards pointed out that the proposed bill would
transfer the cost of incarcerating people from the federal
government to the State government. Ms. Tibbles
acknowledged that Senator Pearce had not seen the new
fiscal note. Co-Chair Therriault noted that the bill would
be HELD in Committee in order to discuss the fiscal impact
with Senator Pearce.
SB 323 was HELD in Committee for further consideration.
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