Legislature(2009 - 2010)HOUSE FINANCE 519
04/13/2010 08:15 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB222 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 222 | TELECONFERENCED | |
| + | TELECONFERENCED |
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."
8:19:22 AM
SUE MACLEAN, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW
explained the changes to the proposed legislation since the
last hearing. Section 4, Page 3 creates a Class A
misdemeanor crime of harassment. Section 17, Page 8 now
adds to the definition of sex offender "a person who has
been convicted two or more times of the Class A misdemeanor
crime of harassment which involves touching a person's
genitals, buttocks, or female breast." Section 17 has been
modified to state that out of state sex offenders must
register if the crime that they were convicted of is
similar to a sex offense in Alaska.
Ms. Maclean continued with Section 6, Page 4 where the
definition "child pornography including anime characters"
has been removed. She continued with Section 8, Page 5
where the companion definition "appears to depict a child"
has been removed.
8:23:13 AM
Representative Gara asked about Section 6 and the crime of
creating a depiction of an actual child. Ms. MacLean
provided an example of the use of Photoshop to place the
face of a child onto a depiction of the prohibited conduct.
The United States Supreme Court heard a similar case and
held that the harm was to the child whose photograph was
used.
Ms. Maclean continued with Section 18, Page 9, Line 1 which
is a new section added in response to previous hearings in
which the other body concluded that the state receives
inadequate statistics. This section requires all law
enforcement agencies to report sex offenses to the
Department of Public Safety (DPS). This new section adds a
requirement stating that if law enforcement fails to report
data regarding sex offenses, grants will be withheld. She
concluded with Section 19, Page 9, Lines 24-26 which gives
subpoena power to the Attorney General in cases involving
exploitation of children where the internet is concerned.
The section has been narrowed stating that subpoenas can be
issued for the account holder's name, address, and physical
location associated with the account.
8:26:39 AM
Representative Gara discussed crime involving contact
through clothing. He noted that the action is already
defined as a crime in a separate part of the statute. Ms.
MacLean explained that the section refers to a fleeting
contact without consent; the crime is classified as
harassment. This section raises the crime to a Class A
misdemeanor level. Representative Gara expressed a
lingering concern that the mentioned crime would never be
prosecuted as a "fleeting" touch.
Ms. MacLean ascertained that she may have minimized the
crime in her explanation. She explained a case where a
person approached a male in a bar and grabbed his genitals
without permission. The ligation was that the act does not
comprise sexual assault in the second degree, but is
instead classified as harassment.
Representative Gara surmised that touch through clothing is
a crime, but as classified would be punished with a four
year minimum sentence. Ms. MacLean repeated that the law
reads "directly or through clothing." The common thread is
the lack of consent. Representative Gara opined that the
punishment is greater than the crime.
8:29:46 AM
Representative Foster inquired about Page 9, Lines 5-8
regarding the reporting requirement and withholding of
grant funds. He asked if a sex crime is committed in a
village would the Village Public Safety Officer (VPSO) or
state trooper take responsibility for the reporting
requirement. Ms. MacLean replied that nearly all sex crimes
are felonies ultimately handled by the troopers. She
assumed that the trooper would create the report for DPS.
Representative Fairclough asked if "extreme youth" as
stated on Page 7, Section 15 is defined outside of statute.
Ms. MacLean believed that extreme youth referred to
children under the age of 5.
Representative Fairclough referred to Page 2, and shared a
story about a case where a sex offender was exempt from
reporting requirements while travelling. She understood
that the mandate to report does not exist if a sex offender
is traveling. Ms. MacLean deflected the question to DPS.
She thought that a lengthy change of physical location must
require that a sex offender register.
Representative Fairclough stated that the requirement or
limitations on days are not included in the bill. She noted
that the sex offender makes the decision to report a move
or lengthy vacation.
8:34:36 AM
KATHRYN MONFREDA, CHIEF, CRIMINAL RECORDS AND
IDENTIFICATION, DEPARTMENT OF PUBLIC SAFETY (via
teleconference) commented that registration requirements
state that the sex offender must register if residency was
changed for 30 consecutive days or when it is determined
that the sex offender intends to remain in the new
location.
Representative Fairclough asked about DPS prosecuting a
regulation that is not state statute. Ms. Monfreda recalled
that the case mentioned a vacationing sex offender. She
stated that the law does not specify exactly when
notification should occur during vacation.
Representative Fairclough stated that she was seeking
feedback from the committee. Vice-Chair Thomas suggested
that Representative Fairclough work with DPS on the issue.
8:36:57 AM
Vice-Chair Thomas opened public testimony.
QUINLAN STEINER, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION referred to Page 10, Line 18. The section
amended the court rules prohibiting courts from ordering
copies of evidence in child pornography cases. The change
results in the requirement that the law enforcement agency
reviews the material. The anticipated problem comes when
the material requires review by a forensic expert. The
state would fly the expert to Alaska creating a cost issue
of approximately $20,000-$30,000 per case. The fiscal note
has been changed to indeterminate from zero.
Representative Kelly asked for the recommendation from Mr.
Steiner regarding a solution to the great expense. Mr.
Steiner remarked that without change to the statute as
written, there could be no solution.
8:41:19 AM
Representative Gara asked if the issue included having
copies sent to DPS. Mr. Steiner informed that the statute
prohibits the court from ordering a copy that is normally
sent out of state. A court order and agreement are
typically formed regarding the copying of this type of
material. Representative Gara understood that one concern
regarded selling of the material. Mr. Steiner stated that
he was unaware of any instances where a defense attorney
lost control of the discovery. Representative Gara
speculated that that the victim was further victimized by
the copying of the material.
8:42:37 AM
Representative Kelly expressed concern about both justice
and dollars.
Representative Fairclough commented that children can
experience re-victimization knowing that the material is
viewed by others.
Mr. Steiner expressed concern about Page 10, Line 31 and
the legislative statement concerning the culpable mental
state of failing to register as a sex offender. There is a
requirement to register but the mens rea that relates to
that moment is eliminated.
8:45:21 AM
Representative Gara asked about Section 19 and the Attorney
General's permission to obtain a subpoena without a court
order. He asked about other circumstances that endow the
Attorney General with similar power. Mr. Steiner replied
that he was unaware of other circumstances endowing the
Attorney General with such power. Representative Gara asked
about any policy concerns regarding the fairness of the
decision. Mr. Steiner responded that he had no position on
policy but expressed concern that the subpoena is issued
correctly. He stated that there is a reasonable cause
requirement for issuing the subpoena, which ultimately
leads to a warrant.
Representative Gara clarified that the warrant would be
accepted after the evidence was obtained.
8:47:31 AM
Mr. Steiner commented on Page 7, Line 27-29, which creates
an aggravator for crimes concerning dating or sexual
relationships. Dating relationship might lead to
litigation, as it is undefined. Dating might mean different
things in different communities, which he expected would
engender a fair amount of litigation.
8:49:02 AM
Ms. MacLean remarked that one concern about the first
version of bill applied to exploitation of children and has
since been changed to include the phrase "or defined as
child pornography under federal law." She explained that
the state does not prosecute cases under federal law. She
supposed that difficulty might occur if federal law varied
from state law in the definition of child pornography. The
state can only prosecute child pornography as defined by
our law. She did not expect a great increase in the number
of cases posed by the change in statute. She pointed out a
rule change at the end of bill. This rule change tracks
federal law, which notes that the copying of child
pornography can lead to re-victimization, but the main
issue is redistribution of the material. The concern
regards the offering of materials to the defense attorney.
The DOL would provide that the material is viewed at a law
enforcement agency and the DOL must be present.
8:52:42 AM
JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION OF ALASKA (via teleconference) addressed
concerns on Page 4, Line 2-17, Section 6 and 7 regarding
the crime of possession of child pornography. If the
section is compared to Page 5, Section 12 which defines
"harmful to minor" takes away first amendment concerns in
the section. The Supreme Court found that obscene material
lies outside the ambit of the first amendment. The standard
is that the material has no artistic value and offends
committee interests. He provided an example. He recommended
that additional language be added clarifying that the
section applies to obscene material.
Mr. Mittman continued with Page 9, Line 14, Section 19 and
subpoena power, which is generally used for administrative
matters to obtain records. He pointed out that the power is
generally not used for criminal investigations. He provided
written examples to the committee with the United State's
Department of Justice reviewing these powers at the federal
level and finding that they were abused. The American Civil
Liberties Union (ACLU) has not heard testimony regarding
reasons the judge is unable to review the subpoenas. He
provided an example of an affidavit. He recommended that
the bill be amended to include an annual review to
determine how the power is used.
Mr. Mittman continued with Page 10, Section 20. He
explained that the court in Washington made it clear that
the defense council is responsible for any copies made. He
advised that the bill state the court shall order that
defense council is responsible for the copies. He concluded
with concerns on Section 21 and the elimination of "any
mental state whatsoever." He opined that use of "the
criminally negligent mental state" is a more
constitutionally appropriate standard than simple knowing.
8:58:48 AM
Ms. Maclean discussed the court ordering the defense to
have copies of the actual images of child pornography. She
provided an example in which defense attorneys accidentally
left behind huge posters of the victim's naked body,
without any intention to offend. The section is not
designed to gain an advantage, but instead to deal with the
fact that giving child pornography to another person
constitutes redistribution.
9:00:37 AM
Representative Doogan asked if the provision prevails will
the department support the funding to accomplish the task
of allowing experts to analyze the material. He asked if
the department supports legislative request to cover the
costs.
Ms. MacLean informed that the law reference was included,
which adds more cases to the agencies caseload regarding
child pornography. She realized that the public defender
agency is funded to supply experts when needed.
Representative Doogan stressed that he simply wanted to
know whether the department supports the cost of either
analyzing the material or sending it away for analysis. Ms.
MacLean responded that if public defenders require an
expert DOL will not argue the point. The DOL will not pay
for the public defender's experts.
Representative Doogan asked the department's position with
future finance committees when added costs for expert
reviews come before the legislature. Ms. MacLean responded
that DOL will review the fiscal notes presented and note
whether the proposed spending comports with statistics. If
the request comports, DOL will be supportive.
9:04:54 AM
Vice-Chair Thomas clarified that the public defender's
budget is not under DOL, but instead under the Department
of Administration (DOA) for a supplemental budget in the
event of cost increases.
Representative Salmon expressed concerns regarding Sections
6, 7, and 8 regarding possession of material. He asked to
know the definition of possession. Ms. Maclean responded
that the law adds accessing a computer with intent to view
child pornography. The state must therefore prove that the
viewing was more than accidental.
Representative Salmon asked if the material was sent to a
person via the computer would it be defined as possession.
Ms. Maclean responded that possession is the knowing that
the material is on the computer.
Representative Salmon clarified that a person must open the
email message and view the material.
9:07:22 AM
Representative Joule recalled certain computer systems that
require a message to be viewed prior to deletion. Ms.
Maclean explained the difference with possession involves
downloading and keeping the material or simply downloading
it.
Representative Salmon described potential scenarios in
which a person may open a message on a handheld mobile
phone to quiet the phone in public without carefully
viewing the message. Ms. MacLean recalled a court case in
which a person viewed a site without downloading
information. She elucidated that repeated access to a site
proves the intent to view.
9:09:33 AM
Representative Fairclough pointed out Section 3, Page 2,
regarding the language barrier issue for failure to
register as a sexual offender.
Ms. Maclean stated that several state agencies have
subpoena power. The Attorney General would not issue a
subpoena for any cause other than the items listed. The
purpose is to deduce the computer's owner. She explained
that the Commissioners of Labor, Health and Social
Services, and Revenue have subpoena power. The Attorney
General has subpoena power for unfair trade practices or
consumer protection and the Alaska Police Standards Council
also has subpoena power. Failure to register as a sex
offender has a knowing mental state that involves realizing
that registration is mandatory. The state must disprove the
reasons that the person did not register, which is an
impossible burden.
9:13:17 AM
Representative Foster revisited Page 10, Section 20
regarding the duplication of material. He noticed the
restriction on the availability of certain material. He
asked if the section restricts the defendant's attorney.
Ms. Maclean informed that the section applies to court
procedures where a defense attorney and defendant are in
place when the rules come into play.
Representative Foster asked if the section applies to all
involved in the trial. Ms. Maclean expounded that DOL's
preference is to view the evidence at the police station,
but otherwise no person can duplicate the material.
Representative Foster understood that the danger of
duplication includes the possibility of multiple copies
seen by others leading to re-victimization. He asked if the
material was sent away for expert analysis, would others
view the material. Ms. MacLean believed that the section
tracks federal law, which decrees that the distribution of
the child pornography must stop.
9:16:29 AM
Representative Fairclough discussed the addition of a
clause describing art. Ms. MacLean explained that the
section "harmful to minors" was added with respect to the
crime of distribution of pornography to children. The
section initially stated "electronic distribution of
pornography to children," but is changed in the bill to
"any distribution of pornography to children." Because the
section encompasses pornography not limited to child
pornography, the state must define the type of pornography
specified. The definition is found in the section "harmful
to minors." Section 6 refers to the definition of child
pornography. This describes the conduct regarded as child
pornography. She read the statute.
Representative Fairclough directed attention to Section 19,
which insists on an annual review to allow the legislature
information about the use of the subpoena power. Doubt
about the process comes to the court in the form of a
motion to suppress evidence. If there is a problem with the
use of the subpoena power, that will be revealed.
9:20:00 AM
Vice-Chair Thomas closed public testimony.
Co-Chair Hawker spoke to the fiscal notes. He mentioned one
indeterminate note from the public defender agency, one
indeterminate note from the public advocacy agency, and one
position identified by DPS for a total of $123.500 in
additional expenses related to record keeping. He mentioned
the Department of Corrections (DOC) and the fiscal note for
$200 thousand per year to incarcerate those found guilty.
He mentioned zero fiscal notes from DOL and zero fiscal
notes from the Court System.
Representative Fairclough informed about a national
reporting system that she opined would be helpful.
Representative Fairclough MOVED to report CSSB 222(JUD) out
of Committee with individual recommendations and the
accompanying fiscal notes.
CSSB 222(JUD) was REPORTED out of Committee with a "do
pass" recommendation and with two new indeterminate fiscal
notes by Department of Administration and previously
published fiscal notes: FN2 (COR), FN4 (LAW), FN5 (CRT),
and FN7 (DPS).