Legislature(2021 - 2022)ADAMS 519

05/12/2022 09:00 AM House FINANCE

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09:38:05 AM Start
09:38:40 AM HB5
11:49:51 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to 10:15 am --
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
HOUSE BILL NO. 5                                                                                                              
     "An Act relating  to sexual abuse of  a minor; relating                                                                    
     to  sexual assault;  relating to  the code  of military                                                                    
     justice; relating  to consent; relating to  the testing                                                                    
     of sexual  assault examination kits; and  providing for                                                                    
     an effective date."                                                                                                        
9:38:40 AM                                                                                                                    
Co-Chair Merrick  reported that the committee  heard a brief                                                                    
overview  of HB  5  on May  10, 2022.  She  MOVED to  RECIND                                                                    
action on  the adoption of the  work draft for CSHB  5 (FIN)                                                                    
32-LS0065\U (Radford, 5/10/22).                                                                                                 
Representative  Carpenter OBJECTED  and asked  why the  work                                                                    
draft was being rescinded.                                                                                                      
Co-Chair Merrick  explained the  reason for the  motion. She                                                                    
voiced  that the  Committee Substitute  (CS) work  draft was                                                                    
not the referred version.                                                                                                       
Representative Carpenter WITHDREW the OBJECTION.                                                                                
There being NO OBJECTION, it was so ordered.                                                                                    
Co-Chair  Merrick indicated  the  House Judiciary  Committee                                                                    
(HJUD)  Committee  Substitute,  version F,  was  before  the                                                                    
9:39:42 AM                                                                                                                    
REPRESENTATIVE GERAN  TARR, SPONSOR, pointed to  the handout                                                                    
titled  HB  5 Versions  (copy  on file). She noted  that the                                                                    
original bill contained provisions  regarding rape kits, the                                                                    
definition of consent, sexual abuse  of a minor, and rape by                                                                    
fraud. She  indicated that there were  modifications made to                                                                    
the bill  when it  reported out of  the House  State Affairs                                                                    
Committee (HSTA),  but the four  provisions remained  in the                                                                    
bill. She  furthered that during  the time  HB 5 was  in the                                                                    
Judiciary  Committee, the  bill  was  altered and  contained                                                                    
only  two of  the  original provisions,  rape  kits and  the                                                                    
definition  of  consent.  The   Chairman  of  the  Judiciary                                                                    
Committee  wanted to  remove  the sexual  abuse  of a  minor                                                                    
provisions due to  the late date of  the legislative session                                                                    
and the long  length of time the bill had  remained in HJUD;                                                                    
therefore, she  had agreed. She  had wanted to  reinsert the                                                                    
rape by fraud  provisions that were included in  the CS work                                                                    
draft version that  was rescinded. She related  that she had                                                                    
worked on the  bill and there had been  17 previous hearings                                                                    
with  much deliberation.  She  had  worked with  Legislative                                                                    
Legal Services and  the Department of Law  (DOL) and studied                                                                    
what had been  done and how things were defined  in 12 other                                                                    
states. They  attempted to define  the scope of the  rape by                                                                    
fraud  definition very  narrowly.  The  definition had  been                                                                    
affirmed by a  law professors  prior testimony  in HSTA, who                                                                    
was  involved   in  drafting  the  model   penal  code.  She                                                                    
delineated that the two elements  that were necessary in the                                                                    
definition  of rape  by  fraud  were: impersonating  another                                                                    
person  and the  rapist was  known to  the victim  to obtain                                                                    
consent.  She  relayed  that  the  Chair  of  the  Judiciary                                                                    
Committee wanted to draft HB  5 aligned with the model penal                                                                    
code. She  noted that  the model penal  code had  been under                                                                    
revision for a  number of years, and she  had been following                                                                    
changes during  the four years  she had been working  on the                                                                    
bill in  conjunction with DOL.  She wondered if  members had                                                                    
any questions  regarding what  was in  the HJUD  version and                                                                    
the CS that had been rescinded.                                                                                                 
9:43:22 AM                                                                                                                    
Co-Chair Merrick  clarified that  the finance version  was a                                                                    
request by  the bill  sponsor and not  by the  House Finance                                                                    
Representative Wool  was trying  to understand  the process.                                                                    
He  was confused  and asked  for clarification.  He did  not                                                                    
understand why  the committee was exclusively  talking about                                                                    
the Judiciary version versus the  CS work draft version when                                                                    
it was not  before the committee. He wondered if  it was the                                                                    
sponsors  desire  to reintroduce the CS  work draft version.                                                                    
Representative Tarr responded that she  spoke of the rape by                                                                    
fraud element  when she  introduced the  bill and  wanted to                                                                    
clarify that it was not included in the HJUD version.                                                                           
9:45:03 AM                                                                                                                    
Representative  Wool thought  that the  version of  the bill                                                                    
that had been rescinded was a moot point.                                                                                       
Co-Chair Merrick restated that  the version under discussion                                                                    
was   the  HJUD   version.  She   stated  that   she  wanted                                                                    
Representative  Tarr  to  present  the  Judiciary  Committee                                                                    
version and the  House Finance Committee could  modify it as                                                                    
it desired.                                                                                                                     
Representative  Carpenter  wanted  to  know  what  bill  the                                                                    
sponsor  wanted.  He  wondered   what  version  the  sponsor                                                                    
9:46:33 AM                                                                                                                    
Representative  Tarr apologized  about the  confusion around                                                                    
the  different  versions.  She   felt  urgency  because  the                                                                    
session was  6 days away  from ending. She noted  that there                                                                    
was a companion bill in the  Senate, SB 187 that included an                                                                    
updated consent definition. She  was attempting to match the                                                                    
language with the Senate version  due to the short time left                                                                    
in the session.                                                                                                                 
9:48:11 AM                                                                                                                    
AT EASE                                                                                                                         
9:48:20 AM                                                                                                                    
Representative  Tarr   pointed  to  the   current  statutory                                                                    
definition  of  consent.  She  explained  that  the  current                                                                    
definition  was insufficient  and  problematic and  included                                                                    
elements  of the  use  of  force, and  did  not capture  the                                                                    
trauma response of fight, flight,  or freeze and was over 40                                                                    
years  old. She  declared  that  the nonfunctional  "broken                                                                     
statute  routinely denied  justice to  victims. She  offered                                                                    
that the group Standing  Together Against Rape requested the                                                                    
updated definition.  She began working  on the bill  in 2019                                                                    
and the  specific goal was  to remove the element  of threat                                                                    
or use  of force  or coercion  from the  consent definition.                                                                    
She  pointed to  Section 1,  of the  bill and  remarked that                                                                    
once the  use of  force was removed  from the  definition it                                                                    
was placed  as a factor  in the  crime. The new  language in                                                                    
Section  1 read,   by the  use of  force or  the express  or                                                                    
implied threat of  force against any person.   It placed the                                                                    
element of behavior into the  crime of sexual assault in the                                                                    
first degree. She  discussed Section 2 referring  to the use                                                                    
of force language  that was added and referred  to the crime                                                                    
of  sexual assault  in the  second degree,  regarding sexual                                                                    
contact.  She  read the  following  language  in Section  2,                                                                    
 under circumstances not proscribed  under AS 11.41.410, the                                                                    
offender engages  in sexual penetration with  another person                                                                    
without  consent  of that  person.   She  detailed that  the                                                                    
sexual penetration crimes not captured under sexual assault                                                                     
1 were covered under Section 2 describing the crime of                                                                          
sexual assault 2.                                                                                                               
9:50:46 AM                                                                                                                    
AT EASE                                                                                                                         
9:53:49 AM                                                                                                                    
Co-Chair Merrick indicated the committee would stand at                                                                         
recess until 10:15 a.m.                                                                                                         
9:53:58 AM                                                                                                                    
AT EASE                                                                                                                         
10:19:27 AM                                                                                                                   
Co-Chair Merrick recognized Co-Chair Foster, Representative                                                                     
McCabe, and Representative Cronk had joined the meeting.                                                                        
10:19:54 AM                                                                                                                   
Representative Tarr appreciated the flexibility of giving                                                                       
her time to gather documents. She reviewed the sectional                                                                        
analysis for version F:                                                                                                         
     Section 1:                                                                                                                 
     AS 11.41.410. Sexual assault in the first degree.                                                                          
     Establishes sexual assault in  the first degree. Amends                                                                    
     subsection (a)(l)  to make sexual assault  in the first                                                                    
     degree encompass sexual  penetration without consent by                                                                    
     the  use  of  force/implied  use  of  force  against  a                                                                    
     Section 2:                                                                                                                 
     AS 11.41.420. Sexual assault in the second degree.                                                                         
     Establishes  sexual  assault   in  the  second  degree.                                                                    
     Amends subsection (a)(l) to make  sexual assault in the                                                                    
     second degree encompass  sexual contact without consent                                                                    
     by  the use  of force/implied  use of  force against  a                                                                    
     person. Amends subsection                                                                                                  
     (a)(S)  to make  sexual  assault in  the second  degree                                                                    
     encompass  sexual  penetration  without  consent  under                                                                    
     circumstances not proscribed in sec. 1.                                                                                    
     Section 3:                                                                                                                 
     AS 11.41.425. Sexual assault in the third degree.                                                                          
     Establishes sexual assault in  the third degree. Amends                                                                    
     subsection (a)(7)  to make sexual assault  in the third                                                                    
     degree  encompass   sexual  contact   without  consent,                                                                    
     excluding  an offender  knowingly causing  a person  to                                                                    
     come  into   contact  with   semen.  This   change  was                                                                    
     recommended in  Senate Judiciary to reflect  changes as                                                                    
     a result of HB 14 in the 31st Legislature.                                                                                 
Representative Tarr  reviewed Section 3. She  pointed to the                                                                    
language  excluding  an offender knowingly causing  a person                                                                    
to  come  into contact  with  semen.   She referred  to  the                                                                    
Schneider  case  that  discovered deficiencies  in  statute,                                                                    
which was why  the language was included.  She recalled that                                                                    
in the case, the perpetrator  masturbated on the victim, and                                                                    
it was  unable to be  classified as a crime.  However, there                                                                    
were other  circumstance where the  same thing  might happen                                                                    
and did not  include the element of  force. She exemplified,                                                                    
the  situation in  a correctional  facility where  an inmate                                                                    
threw  bodily  fluids  including   semen  at  a  guard.  She                                                                    
expounded  that the  language was  included  because of  the                                                                    
Schneider  case   and  the  distinction   between  knowingly                                                                    
causing someone  to come  into contact  with semen  with the                                                                    
use of force  and defining that in a  sexual assault context                                                                    
versus knowingly  causing the contact  with semen in  a non-                                                                    
force circumstance.                                                                                                             
10:23:29 AM                                                                                                                   
Representative   Wool   clarified  that   the   correctional                                                                    
facility incident  would not be considered  a sexual assault                                                                    
but  would  be  considered harassment.  Representative  Tarr                                                                    
answered in the affirmative.                                                                                                    
Co-Chair  Merrick  recognized  Representative  Thompson  and                                                                    
Representative Ken McCarty in the room.                                                                                         
Representative Tarr  continued with the  sectional analysis.                                                                    
She reviewed Section 4:                                                                                                         
     Section 4:                                                                                                                 
     AS 11.41.445. General provisions.                                                                                          
     Adds  a   new  subsection  (c)  that   establishes:  an                                                                    
     expression  of  lack  of  consent  means  there  is  no                                                                    
     consent; absence of verbal  or physical resistance does                                                                    
     not  establish  consent;  consent  may  be  express  or                                                                    
     inferred; consent  may be revoked  or withdrawn  at any                                                                    
     time; a  clear verbal refusal establishes  a revocation                                                                    
     of prior consent; lack of  consent may be overridden by                                                                    
     subsequent  consent prior  to the  conduct at  issue; a                                                                    
     person who  is incapacitated as  a result of an  act of                                                                    
     the defendant cannot consent.                                                                                              
Representative  Tarr  noted  that Section  4  provided  more                                                                    
clarity around the  elements of consent. She  pointed to the                                                                    
reversable concept  in the  third element  of Section  4 and                                                                    
concluded that  via discussions with  DOL it  was redundant.                                                                    
She continued to Section 5:                                                                                                     
     Section 5:                                                                                                                 
     AS 11.41.470. Definitions.                                                                                                 
     Adds  a  definition  of "consent"  to  mean  "a  freely                                                                    
     given, reversible agreement specific  to the conduct at                                                                    
     issue."  This section  also defines  "freely given"  to                                                                    
     mean "agreement to cooperate in  the act was positively                                                                    
     expressed by word or action.                                                                                               
Representative  Tarr expounded  that the  modernized version                                                                    
takes  the  definition  of  consent from  a   no  means  no                                                                     
paradigm  to  a  yes  means  yes   paradigm and  represented                                                                    
affirmative  consent.  The  goal  of  updating  the  current                                                                    
definition  was to  replace it  with an  affirmative consent                                                                    
definition.  She emphasized  that  she had  no intention  of                                                                    
criminalizing   normal  consensual   sexual  behavior.   She                                                                    
delineated  that the  intention  was to  include verbal  and                                                                    
physical  affirmative behaviors  and not  exclusively verbal                                                                    
consent. It  was important that  freely given be  defined as                                                                    
positively expressed  through words or actions.  She pointed                                                                    
to the  words  reversible  agreement  and noted  that people                                                                    
had the right to do one thing but not another.                                                                                  
10:28:28 AM                                                                                                                   
Representative Tarr moved to Sections 6 through 8:                                                                              
     Section 6:                                                                                                                 
     AS  11.56.  765.  Failure to  report  a  violent  crime                                                                    
     committed against a child.                                                                                                 
     Adds the definition of consent found in sec. 5.                                                                            
     Section 7:                                                                                                                 
     AS  11.56.  767.  Failure to  report  a  violent  crime                                                                    
     committed against an adult.                                                                                                
     Adds the definition of consent found in sec. 5.                                                                            
     Section 8:                                                                                                                 
     AS 26.05.900. Other sexual misconduct; indecent                                                                            
     viewing, visual recording, or broadcasting.                                                                                
     Adds the definition of consent found in sec. 5.                                                                            
Representative  Tarr indicated  that Sections  6 and  7 were                                                                    
conforming sections.  She furthered that Section  8 referred                                                                    
to the military code of  justice. She cited AS 26.05.900 and                                                                    
reminded the  committee that the state  updated the Military                                                                    
Code of  Justice which occurred  in 2014, which  updated the                                                                    
definition of  consent at the  time and was very  similar to                                                                    
the one in the bill. She  relayed that AS 26.05.890 (h) very                                                                    
closely matched the bills  definition.  It was passed by the                                                                    
Alaska Legislature in 2016.                                                                                                     
10:30:37 AM                                                                                                                   
Representative Tarr moved to Section 9 regarding rape kits:                                                                     
     Section 9:                                                                                                                 
     AS 44.41.065. Sexual assault examination kits.                                                                             
     Amends  subsection  (a)(2)(1)   to  decrease  the  time                                                                    
     allowed  for law  enforcement agencies  to ensure  that                                                                    
     laboratories conduct serological or  DNA test on sexual                                                                    
     examination kit  from one year  to six months  from the                                                                    
     laboratory  receiving  the sexual  assault  examination                                                                    
Representative   Tarr  recounted   that   since  2014,   the                                                                    
legislature  had adopted  4 pieces  of  legislation and  two                                                                    
budget provisions  that addressed  the problems  of untested                                                                    
rape  kits.  She considered  it  a  bipartisan success.  She                                                                    
elucidated  that   there  were   2  crimes  that   had  been                                                                    
prosecuted because of the rape  kit legislation. She favored                                                                    
the victim  centered policy and  noted that by  reducing the                                                                    
rape kit testing  timeframe to 6 months,  it facilitated the                                                                    
healing process.                                                                                                                
Co-Chair  Merrick recognized  Representative Laddie  Shaw in                                                                    
the attendance.                                                                                                                 
Representative  Rasmussen asked  whether Section  9 included                                                                    
rape kit testing for children as well as adults.                                                                                
10:32:40 AM                                                                                                                   
Representative Tarr  was uncertain. She deferred  the answer                                                                    
to the Department of Law.                                                                                                       
Representative  Tarr continued  with  the  remainder of  the                                                                    
sectional analysis:                                                                                                             
     Section 10:                                                                                                                
     Repeals AS 11.41.470(10), AS l l.56.765(c)(4), AS l                                                                        
     l.56.767(c)(4), and AS 26.05.900(e)(8). These statutes                                                                     
     contain the previous definition of consent.                                                                                
     Section 11:                                                                                                                
     Uncodi.fied law - applicability                                                                                            
     Amends uncodified law to state that modifications and                                                                      
     repeals apply to offenses committed on or after the                                                                        
     effective date of the bill.                                                                                                
     Section 12:                                                                                                                
     Effective Date                                                                                                             
     Makes sec. 9 effective on July 1, 2023.                                                                                    
Representative  Tarr noted  that  Section  10 contained  the                                                                    
repealers  for   the  prior   definition  of   consent.  She                                                                    
indicated Section 12 dealt with  the processing of rape kits                                                                    
at the  crime lab and it  was always necessary to  provide a                                                                    
full years  time  delay for the effective date  to allow the                                                                    
lab time  to hire the new  positions and put into  place the                                                                    
measures necessary to comply with the bill.                                                                                     
10:35:06 AM                                                                                                                   
Representative Tarr reverted  to a prior topic  and read the                                                                    
code of military justice definition of consent:                                                                                 
      Consent means a freely given agreement to the conduct                                                                     
     at issue by a competent person.                                                                                            
10:35:51 AM                                                                                                                   
JOHN SKIDMORE,  DEPUTY ATTORNEY GENERAL, DEPARTMENT  OF LAW,                                                                    
explained that  Alaskas  statutes concerning  sexual assault                                                                    
were  a tiered  structure.  There were  different levels  of                                                                    
conduct   and  different   penalties  associated   with  the                                                                    
conduct.  He delineated  that it  was important  to keep  in                                                                    
mind  the  tiered  approach  when  altering  sexual  assault                                                                    
statutes  because  there  were cascading  affects  from  the                                                                    
changes.  He  also  highlighted that  it  was  important  to                                                                    
consider the mental  state or the intention  or knowledge of                                                                    
wrongdoing that constitutes part  of a crime otherwise known                                                                    
as the   mens rea.  He  clarified that the mental  state was                                                                    
addressed  in   a  statute  separate  from   sexual  assault                                                                    
statutes. He  instructed the  committee that  when referring                                                                    
to sexual assault  the statute states that  lacking a mental                                                                    
state the  conduct was  done knowingly  and the  conduct was                                                                    
reckless as to the  circumstance. Therefore, when addressing                                                                    
sexual assault in  statute it always meant  that the conduct                                                                    
was engaged  in knowingly,  but the  circumstance had  to be                                                                    
proven  to be  reckless. He  emphasized that  they were  the                                                                    
fundamental  principles  to  keep in  mind  when  discussing                                                                    
sexual assault  statutes. He voiced that  the department was                                                                    
supportive  of  redefining  the definition  of  consent.  He                                                                    
elaborated that under  current law, the use of  force or the                                                                    
threat  of force  was required,  which was  problematic. For                                                                    
instance,  if   a  victim  stated,   "no"  as  a   means  of                                                                    
communicating she did  not want to engage  in sexual conduct                                                                    
it was  not enough  to be considered  sexual assault  and it                                                                    
was  not illegal  for the  perpetrator to  engage in  sexual                                                                    
misconduct. Alaska  led the nation in  sexual assault cases,                                                                    
and it was  very concerning that the  states  sexual assault                                                                    
law was  so outdated. He  believed the issue was  a priority                                                                    
that needed correcting.                                                                                                         
10:39:13 AM                                                                                                                   
Mr. Skidmore continued that in  version F the bill attempted                                                                    
to change the  definition of consent. He  pointed to Section                                                                    
1, page 1,  line 8 of the bill and  pointed to the language,                                                                    
 by the  use of force  or the  express or implied  threat of                                                                    
force against  any person.  He  informed the  committee that                                                                    
the  definition of   without  consent  previously  described                                                                    
the  use  of  force.  Therefore, in  order  to  broaden  the                                                                    
definition of  without consent and redefine  consent and the                                                                    
lack of consent,  the elements in the  definition would need                                                                    
to be  moved somewhere  else. The  bill moved  the language,                                                                    
"by the  use of force  or the  express or implied  threat of                                                                    
force against  any person   into the  elements of  the crime                                                                    
itself.  However,  what  version  F  failed  to  do  was  to                                                                    
incorporate  two other  aspects of  current law  and thereby                                                                    
weakened  the  effect  of current  law  on  sexual  assault.                                                                    
First,  the  concept  of incapacitation  was  necessary.  He                                                                    
delineated  that  under  current   law,  the  definition  of                                                                    
without  consent implied  that if  an individual  causes the                                                                    
incapacitation of another person  i.e., slipping a drug into                                                                    
a drink  at a bar  to sexually  assault them. He  noted that                                                                    
under  current law  the  crime would  be  charged as  sexual                                                                    
assault in  the first degree  but under the  current version                                                                    
of the bill  it would no longer be the  case and was reduced                                                                    
to sexual assault in the second degree.                                                                                         
10:41:22 AM                                                                                                                   
Representative  Wool   asked  for  an  explanation   of  the                                                                    
difference  between  first  degree and  second  degree.  Mr.                                                                    
Skidmore  responded  that  a  first  degree  sexual  assault                                                                    
carried  a penalty  of 25  to  35 years,  and second  degree                                                                    
sexual assault carried a penalty of 5 to 15 years.                                                                              
Co-Chair Merrick  indicated Representative David  Nelson had                                                                    
joined the meeting.                                                                                                             
Mr.  Skidmore  continued  to explain  that  the  concept  of                                                                    
incapacitation was found in almost  every other state's laws                                                                    
and in the model penal  code. He recounted his discussion of                                                                    
tiers. He elaborated that  besides causing incapacitation it                                                                    
was  also  a crime  to  engage  in  sexual contact  with  an                                                                    
incapacitated person  that was not caused  by the defendant.                                                                    
Currently, and  in version F  of HB 5,  it was the  crime of                                                                    
sexual  assault  in  the second  degree.  He  exemplified  a                                                                    
victim  who  consumed too  much  alcohol  or was  under  the                                                                    
influence  of   drugs.  His  point  was   that  causing  the                                                                    
incapacitation was  now grouped  with coming  across someone                                                                    
who was  already incapacitated and  taking advantage  of the                                                                    
situation. The  bill would eliminate the  distinction, which                                                                    
was why it  was important to factor in tiers.  He added that                                                                    
the model  penal code  had the distinction  as well  as most                                                                    
other states.                                                                                                                   
10:43:53 AM                                                                                                                   
Mr. Skidmore  continued with the  second lacking  element of                                                                    
without  consent; property.  He  detailed  that current  law                                                                    
also  included  threats against  property  such  as pets,  a                                                                    
home,  etc.  If  someone   threatened  to  damage  someones                                                                     
property in order to persuade  someone to have sex with them                                                                    
it was  a first degree  sexual assault. Under version  F, it                                                                    
was  eliminated  in the  bill  and  weakened current  sexual                                                                    
assault  statutes.   He  offered  the  information   so  the                                                                    
committee  could consider  whether to  weaken or  strengthen                                                                    
sexual assault statutes.                                                                                                        
10:45:14 AM                                                                                                                   
Mr.  Skidmore  addressed  the   definition  of  consent.  He                                                                    
reported that the  definition was in Section 5  of the bill,                                                                    
but he  drew attention to Section  4, on page 4,  of version                                                                    
F. He considered  the issues he would  discuss were  nuanced                                                                    
and complex.   He explained that  under current  law consent                                                                    
was  defined by  what  was not  consent  or without  consent                                                                    
versus what was consent. He  noted that it was considered by                                                                    
some  to  be the  same  thing.  He  emphasized that  from  a                                                                    
prosecutors  perspective there  was an important distinction                                                                    
because they  had the burden of  proof and had to  prove the                                                                    
elements of a  crime beyond a reasonable  doubt. Proving the                                                                    
lack of something  was proving in the negative,  which was a                                                                    
more  complicated  process.  He further  explained  that  if                                                                    
consent was defined as a  person consenting through inaction                                                                    
it suggested that  someone frozen with fear  during a sexual                                                                    
assault might  be considered  as having  consented. Whereas,                                                                    
in the  opposite direction by defining  that without consent                                                                    
could include  inaction it suggested  that freezing  was not                                                                    
consenting.   He  stressed   that   it   was  an   important                                                                    
distinction for a prosecutor and  was an issue brought up by                                                                    
state  prosecutors,  the  Department  of  Justice,  and  the                                                                    
National  Women's  Judges  Conference. He  believed that  it                                                                    
was  troubling that  a statute  suggested  that freezing  or                                                                    
inaction was consent. He maintained  that there was a better                                                                    
way to define  consent than how it was defined  in Section 4                                                                    
of the  bill. He offered  to present suggestions  to improve                                                                    
the consent definitions. He also  commented on Subsection 3,                                                                    
Section  4, page  4  line  11. He  outlined  that the  words                                                                    
 withdrawn  or  revoked  could be  eliminated because it was                                                                    
included in Section  5. He also pointed out  that in Section                                                                    
4, page 4, lines 15  through 16, Subsection 4, the language,                                                                    
 a person who is incapacitated as  a result of an act of the                                                                    
defendant  cannot   consent   where   it  was   located  was                                                                    
problematic  and  resulted  in  the downgrade  to  a  sexual                                                                    
assault  in  the second  degree  rather  than in  the  first                                                                    
degree. His  focus was on  the current bill, but  noted that                                                                    
provisions regarding fraud was lacking in version F.                                                                            
10:50:06 AM                                                                                                                   
BRENDA  STANFILL,  EXECUTIVE  DIRECTOR,  ALASKA  NETWORK  ON                                                                    
DOMESTIC   VIOLENCE  AND   SEXUAL   ASSAULT,  informed   the                                                                    
committee that she would not  read from her prepared remarks                                                                    
because it had all been  stated by the prior testifiers. She                                                                    
offered that some of what  members never heard in committees                                                                    
was  testimony  from the  victims.  As  an advocate  for  25                                                                    
years,  she could  determine when  an assault  would not  be                                                                    
prosecuted  because  the  victim froze.  She  described  the                                                                    
repeated trauma  victims experienced during a  forensic exam                                                                    
and  often  times  they  could  not go  home  in  their  own                                                                    
clothes. She wanted the committee  members to understand the                                                                    
experience of sexual assault for  a victim and what words on                                                                    
a paper cannot  express. She shared that  sexual assault was                                                                    
often  described as  murder without  murdering someone.  She                                                                    
stated  that  there  was something  about being  violated in                                                                    
this way that goes to the core  of who you are  and it often                                                                    
took survivors years to  regain  what was taken.  She wanted                                                                    
legislators to  think of the  real experiences of  the types                                                                    
of things  Mr. Skidmore  described and  how it  affected the                                                                    
decisions a  victim made during  the assault. She  wanted to                                                                    
make sure  that the voices  of those who  experienced sexual                                                                    
violence  were  with  the   members  when  making  decisions                                                                    
regarding HB 5.                                                                                                                 
Co-Chair  Merrick invited  Mr.  Skidmore and  Representative                                                                    
Tarr back to the table.                                                                                                         
10:53:27 AM                                                                                                                   
Representative   Josephson   asked    Mr.   Skidmore   about                                                                    
Section 1.  He deemed  that it  reflected  the worst  sexual                                                                    
conduct  committed against  an  individual excluding  sexual                                                                    
crimes against  children and was  highlighted by the  use of                                                                    
force    language.    Mr.   Skidmore    responded,    "Yes."                                                                    
Representative  Josephson  recalled   that  an  unclassified                                                                    
felony  was  so  bad  it  defied  classification.  He  asked                                                                    
whether there was  a sexual assault that was  an  A  felony.                                                                    
Mr.  Skidmore  answered   in  the  negative.  Representative                                                                    
Josephson  inquired whether  a sexual  assault in  the first                                                                    
degree would be  an A felony. Mr. Skidmore  responded in the                                                                    
affirmative.  Representative  Josephson  guessed that  an  A                                                                    
felony  might be  useful under  Section 1  of the  bill. Mr.                                                                    
Skidmore responded that an attempt  reduced the level of the                                                                    
crime  by  1   degree.  There  were  no   other  sex  crimes                                                                    
classified  as an  A. There  were proposals  in other  bills                                                                    
that  provided for  A level  sexual crimes,  but nothing  in                                                                    
current law or version F classified an A level crime.                                                                           
10:55:52 AM                                                                                                                   
Representative Josephson pointed to the  bottom of page 2 of                                                                    
the bill [provisions regarding sexual  assault in the second                                                                    
degree].  He described  sexual  assault  as contact  without                                                                    
penetration.  He  suggested  that  sexual  assault  was  bad                                                                    
conduct but  was not  the worst of  the worst.  However, for                                                                    
offenders that committed sexual  penetration without the use                                                                    
of  force  it would  only  be  treated  as  a B  felony.  He                                                                    
wondered  if it  was  due to  a proof  problem  at trial  or                                                                    
whether it was considered not  as egregious as rape with the                                                                    
use  of  force. Mr.  Skidmore  responded  that criminal  law                                                                    
approached   offenses   in   degrees  of   conduct   through                                                                    
evaluation of three  concepts: mens rea, the  actual act and                                                                    
the egregiousness  of the act,  as well  as  the surrounding                                                                    
circumstances of  the act. He indicated  that sexual assault                                                                    
statutes dealt  with sexual penetration and  sexual contact.                                                                    
Sexual contact  was considered a  lower severity  crime than                                                                    
penetration. In the  legislation, redefining without consent                                                                    
   broadening the  law beyond  the  use of  force, the  bill                                                                    
followed the  paradigm established  in the model  penal code                                                                    
and  by many  other  states that  the  circumstances of  the                                                                    
penetration   carried   different    levels   of   severity.                                                                    
Therefore, the bill classified  penetration without force as                                                                    
sexual  assault in  the second  degree. The  tiered approach                                                                    
was established  in current statute,  the model  penal code,                                                                    
and  most  other  states. Representative  Josephson  deduced                                                                    
that most  people would think penetration  would warrant the                                                                    
use  of the  currently unused  A Felony  because penetration                                                                    
was the worse  sexual conduct, even lacking  force. He asked                                                                    
why penetration was not an  A felony. Mr. Skidmore cautioned                                                                    
against  mixing multiple  concepts.  He  responded that  the                                                                    
difference  between   penetration  and  contact   should  be                                                                    
differentiated and  remained the same under  current law and                                                                    
the F  version. He believed that  use of force was  the same                                                                    
whether  there was  penetration or  contact. The  force used                                                                    
could be the  same but the sexual act  of either penetration                                                                    
or  contact differentiated  the tier  of crime.  He believed                                                                    
that  whether penetration  with  the lack  of force  coupled                                                                    
with a  lack of consent should  be an A felony  was a policy                                                                    
call to be made by  the legislature. The current bill placed                                                                    
it in the  same category that it already  existed. He warned                                                                    
against categorizing  it as  an unclassified  felony because                                                                    
use  of force  and no  force  were two  different levels  of                                                                    
crime  and   were  recognized  as   such  in   all  American                                                                    
jurisprudence. However,  regarding penetration,  he believed                                                                    
that it was a policy call to be made by the legislature.                                                                        
11:02:24 AM                                                                                                                   
Representative  Josephson  referred  to  page  4,  lines  15                                                                    
through   16,  regarding   incapacitation.  He   provided  a                                                                    
hypothetical situation  where 2 individuals on  a date drank                                                                    
2 glasses of wine and  became incapacitated. He asked if the                                                                    
incapacitation  provisions  applied  in  the  scenario.  Mr.                                                                    
Skidmore deduced that  a couple of drinks  generally did not                                                                    
result   in  incapacitation.   However,   if   one  of   the                                                                    
individuals purchased 2 or 3 liters  of wine on the date and                                                                    
had sex with the other person it was prosecutable.                                                                              
11:03:36 AM                                                                                                                   
Representative  Josephson  wondered   what  was  missing  in                                                                    
subsection (C) 4  that did not accomplish  what Mr. Skidmore                                                                    
wanted regarding  incapacitation. Mr. Skidmore  replied that                                                                    
it  began  with language  regarding  sexual  assault in  the                                                                    
first  degree on  page 1,  lines 8  through 9.  He read  the                                                                    
following language:                                                                                                             
      by the use of force or the express or implied threat                                                                      
     of force against any person                                                                                                
Mr. Skidmore  maintained that the language  should include a                                                                    
threat to property. He suggested  that a subsection 2 should                                                                    
be  inserted with  the language,   where incapacitation  was                                                                    
also included  caused by the  offender was also  included in                                                                    
sexual  assault  in  the  first  degree.   Regarding  sexual                                                                    
assault to someone already  incapacitated, he drew attention                                                                    
to Section 2, page 2, lines  21 through 24, which in current                                                                    
law  described  an  offender encountering  an  incapacitated                                                                    
individual  and  engaging  in sexual  penetration,  but  the                                                                    
incapacitation was  not caused by the  offender. In response                                                                    
to  Representative Josephsons   question, he  cited Page  4,                                                                    
lines  15   through  16   that  read,    a  person   who  is                                                                    
incapacitated as a result of  an act of the defendant cannot                                                                    
consent,   which  defined  lack of  consent.  The  provision                                                                    
would be  folded into  page 2,  lines 30  to 31,  that read,                                                                    
 under circumstances not proscribed  under AS 11.41.410, the                                                                    
offender engages  in sexual penetration with  another person                                                                    
without  consent  of that  person,   resulting  in the  same                                                                    
level  of  offense.  He stressed  that  the  situation  just                                                                    
described  ignored   the  tier  structure  resulting   in  a                                                                    
weakening  of current  law. He  contended that  not amending                                                                    
the bill  was a  policy call,  but it was  not what  DOL had                                                                    
11:06:22 AM                                                                                                                   
Representative  Wool restated  that Alaska  had the  highest                                                                    
rate of sexual crime and he  had head that the state had the                                                                    
harshest penalties  in the country. Mr.  Skidmore replied in                                                                    
the  negative. He  concluded that  the state  still had  the                                                                    
highest  rate of  sex crimes  despite  having the  strictest                                                                    
Representative  Tarr interjected  that  there were  statutes                                                                    
that  defined  the  crimes and  distinguishing  between  the                                                                    
statutes   that  defined   the  crimes   and  the   statutes                                                                    
containing  the  associated  penalties  was  necessary.  She                                                                    
emphasized that  it was necessary  for the  statute defining                                                                    
the  crime   to  be  effective.  The   consent  statute  was                                                                    
ineffective   so  the   punitive  statutes   could  not   be                                                                    
Representative   Wool   had   a   question   about   causing                                                                    
incapacitation  versus   coming  across  a   person  already                                                                    
incapacitated. He  provided an  example of a  college campus                                                                    
where  excessive   alcohol  consumption  happens   and  both                                                                    
parties were drinking heavily but  one person was purchasing                                                                    
the drinks  and the  other blacked out  without a  memory of                                                                    
consenting to  engaging in sexual activity  that took place.                                                                    
He asked whether that was  a worse crime than someone having                                                                    
sexual contact with an already incapacitated person.                                                                            
Mr.  Skidmore responded  in  the  affirmative and  indicated                                                                    
that existed in current law and  in the model penal code. He                                                                    
maintained that  there were two  different tiers  in current                                                                    
law.  Representative  Wool  understood dropping  a  pill  in                                                                    
someone's  drink  versus  two  people  drinking  and  sexual                                                                    
activity resulted, he worried  about the consequences of the                                                                    
scenario  described   above  with   including  too   fine  a                                                                    
definition  of  incapacitation.  He   referred  to  page  4,                                                                    
Section 4, subsection  1 and 2, lines 7 through  10 and read                                                                    
the following:                                                                                                                  
     an expression of lack of consent through words or                                                                          
     conduct means there is no consent                                                                                          
      both a person's action and inaction, in the context                                                                       
      of the circumstances, may be considered                                                                                   
Representative Wool provided an  example of someone freezing                                                                    
where the state of mind  was different, and the inaction was                                                                    
due to shyness or some other  reason but was not intended as                                                                    
a lack  of consent.  He wondered  how it  was differentiated                                                                    
and deemed that the two measures were contradictory.                                                                            
11:12:14 AM                                                                                                                   
Representative Tarr  clarified that  she had no  interest in                                                                    
weakening current  law as it  related to causing  a persons                                                                     
incapacitation or happening on  an incapacitated person. She                                                                    
was not supportive of the  change and agreed with the tiered                                                                    
law  because  there was  an  element  of premeditation  when                                                                    
someone decided  to cause a person  to become incapacitated,                                                                    
which made  it a more  serious crime. She also  commented on                                                                    
the  second  part  of  Representative  Wool's  question  and                                                                    
agreed with his  analysis. She hoped for   an opportunity to                                                                    
address the slightly contradictory language.                                                                                    
11:13:38 AM                                                                                                                   
Mr. Skidmore  appreciated Representative Wools   example. He                                                                    
explained that the bill did  not criminalize engaging in sex                                                                    
under   the   influence   of   alcohol.   He   voiced   that                                                                    
incapacitation  was defined  in statute  as a  very specific                                                                    
level of conduct. He defined  incapacitation according to AS                                                                    
11.41.470  (2), which  meant that  a person  was temporarily                                                                    
incapable of  appraising the nature  of ones   own conduct.                                                                     
He determined that  it was not a couple of  drinks or shots;                                                                    
an  individual had  to be  so drunk  they were  incapable of                                                                    
expressing themselves or talking.  He contended that current                                                                    
law nor the bill was  merely describing having a few drinks.                                                                    
He was  simply saying that  he did not  want to see  the law                                                                    
weakened regarding incapacitation. He  spoke of the scenario                                                                    
in college where  a person knowingly planned  to provide too                                                                    
much  alcohol  to  another  person  and  he  felt  that  the                                                                    
behavior was unacceptable.                                                                                                      
11:15:46 AM                                                                                                                   
Representative Carpenter referred to line  11, on page 3, in                                                                    
Section  4,  subsection  (C) (3),  and  read  the  language,                                                                    
 consent  may  be revoked  or  withdrawn  at any  time    He                                                                    
wondered  if  the section  could  be  construed as  removing                                                                    
consent one week after the  event. Mr. Skidmore responded in                                                                    
the negative. He furthered that  it inferred a withdrawal of                                                                    
consent prior  to the act  occurring for  it to be  a crime.                                                                    
Representative Carpenter pointed to  the words  at any time                                                                     
and read line 12,  any  clear verbal refusal establishes the                                                                    
revocation  or withdrawal  of prior  consent.  He  asked the                                                                    
question  whether the  bill unintentionally  allowed  regret                                                                    
to become a weapon  if the  definition of at any time was up                                                                    
to interpretation. Mr. Skidmore  agreed that it was possible                                                                    
for  the department  to draft  the legislation  more clearly                                                                    
but  did not  think the  law  would be  interpreted the  way                                                                    
Representative Carpenter suggested it.                                                                                          
Representative  Tarr had  recommended  removing the  section                                                                    
altogether because  the actual  consent definition  in lines                                                                    
18 through  20 contained  the reversible  agreement language                                                                    
and  was much  clearer. She  read the  language,  reversible                                                                    
agreement specific  to the conduct at  issue.  She clarified                                                                    
that  the   language  contextualized  it  to   mean  it  was                                                                    
happening at the  time. The idea of the bill  was to provide                                                                    
clarity  rather than  add to  any confusion.  She wanted  to                                                                    
avoid criminalizing healthy behavior.                                                                                           
11:19:29 AM                                                                                                                   
Representative Josephson  mentioned aggravator  AS 12.55.155                                                                    
c (5)  regarding consumption of  alcohol for  a particularly                                                                    
vulnerable  person.  He wondered  if  the  statute would  be                                                                    
ignored  or  never  be  available  for  prosecution  in  the                                                                    
context of  the statutory definition of  incapacitation. Mr.                                                                    
Skidmore provided background  information. He responded that                                                                    
once an offender  was convicted of the elements  of a crime,                                                                    
they  were subject  to sentencing  via a  presumptive range.                                                                    
The conviction could last longer  than the presumptive range                                                                    
using  an  aggravator  or using  a  mitigator,  which  would                                                                    
produce a  sentence below the  range. He answered  that when                                                                    
an  aggravator established  the same  elements of  the crime                                                                    
then the  aggravator was meaningless. He  summarized that if                                                                    
the  elements of  the  crime  were proven  and  part of  the                                                                    
convicting statute then an aggravator  could not be used. He                                                                    
specified  that  the   aggravator  cited  by  Representative                                                                    
Josephson  that concerned  vulnerable victims  could not  be                                                                    
used when  one of the  elements of the sexual  assault crime                                                                    
was incapacitation  because the incapacity already  made the                                                                    
victim vulnerable.                                                                                                              
11:21:44 AM                                                                                                                   
Representative Josephson returned to  the Schneider case. He                                                                    
referred  to the  bill on  page 4,  lines 2  through 3,  and                                                                    
read,  "sexual   contact"  does  not  include   an  offender                                                                    
knowingly  causing  a  person  to  come  into  contact  with                                                                    
semen.  He  was trying  to grasp  the concept.  Mr. Skidmore                                                                    
replied  that   the  scenario  that  was   resolved  in  the                                                                    
Schneider case was  that contact with semen was  not part of                                                                    
the definition  of sexual contact.  The matter  was resolved                                                                    
by adding  contact  with semen  to the  definition of sexual                                                                    
contact. He used the example  of an inmate throwing semen or                                                                    
bodily  fluids at  guards cited  earlier. He  furthered that                                                                    
under  current law,  sexual  contact  included contact  with                                                                    
semen,  which   was  addressed   as  harassment.   When  the                                                                    
definition of  without consent  was  changed in the bill, so                                                                    
that  force   was  no  longer  required,   the  inmate/guard                                                                    
scenario  would  be  turned   into  a  sexual  assault.  The                                                                    
language  referenced by  Representative Josephson  preserved                                                                    
current  law  from  the   Schneider  fix   and  the  offense                                                                    
remained a felony but was  not turned into a sexual assault.                                                                    
Representative  Josephson   had  previously   discussed  his                                                                    
concern  about pairing  sexual  penetration without  consent                                                                    
but lacking  use of force with  a  B  felony. He  pointed to                                                                    
page 3,  containing the  same policy call  for a   C  felony                                                                    
for sexual  contact. Mr. Skidmore  summarized Representative                                                                    
Josephsons  question  regarding the  policy call  for sexual                                                                    
penetration with  and without the  use of force  and lacking                                                                    
consent resulting  in two tiers  of crimes and  was repeated                                                                    
for   sexual  contact.   Mr.   Skidmore   answered  in   the                                                                    
affirmative that the bill followed  the same tiered approach                                                                    
for sexual contact.                                                                                                             
11:25:04 AM                                                                                                                   
Representative  LeBon  cited  Page  4,  Line  11,  regarding                                                                    
revocation of consent. He had  a question following the same                                                                    
lines  of   questioning  as  Representative   Carpenter.  He                                                                    
wondered how he  would advise a college age  son who engaged                                                                    
in  casual sex.  He wondered  whether the  son should  use a                                                                    
consent form  and enter  into a  contract before  the sexual                                                                    
act  with   additional  consent  afterwards.   Mr.  Skidmore                                                                    
answered  in  the negative  and  voiced  that was  not  what                                                                    
anyone described  nor what the  bill required.  He suggested                                                                    
that  most   sexual  activity   was  more   spontaneous.  He                                                                    
advocated for a discussion about  the issue and advising his                                                                    
son to ensure that both parties   were on the same page.  He                                                                    
furthered  that the  discussion  should  happen for  college                                                                    
bound  women  as  well.  He noted  that  there  were  sexual                                                                    
interaction  discussions   with  students  in   some  sexual                                                                    
education programs in the state that taught his advice.                                                                         
11:27:58 AM                                                                                                                   
Representative  Tarr interjected  that  the college  student                                                                    
would  likely   learn  the  FRIES  acronym,   freely  given,                                                                    
reversible, informed,  enthusiastic, and specific,  that was                                                                    
considered  the accurate  way to  describe consent  to young                                                                    
adults.  She  indicated  that  she  attempted  to  have  the                                                                    
language  in the  law match  what was  being taught  and was                                                                    
understood as  consent. She  mentioned prior  testimony from                                                                    
the  Alaska School  Activities  Association  that coached  a                                                                    
boys  into  men  program  that   spoke  about  consent.  The                                                                    
association favored a synchronized  definition of consent in                                                                    
law. She hoped the bill  would provide more clarity that was                                                                    
more consistent  with human behavior and  what was expected.                                                                    
She thought that  the most exciting part  of the legislation                                                                    
was to  be able to  have the conversation with  young people                                                                    
and prevent harm through education.  The criminal part of it                                                                    
meant that someone was already harmed.                                                                                          
11:29:57 AM                                                                                                                   
Representative    LeBon   was    concerned   about    unjust                                                                    
accusations. He suggested that  encouraging a dating history                                                                    
and a  friendship that evolved  into consensual sex  was the                                                                    
safest approach.                                                                                                                
Representative Wool concurred  that Representative LeBon and                                                                    
deemed that  a written  contract might  be necessary  in the                                                                    
future. He asked if someone  could give consent if they were                                                                    
intoxicated   and  then   revoked  the   consent  afterwards                                                                    
claiming  they were  drunk.  He wondered  whether  it was  a                                                                    
valid defense.                                                                                                                  
Mr.   Skidmore   responded   that   intoxication   did   not                                                                    
necessarily disallow  consent and  repeated that  the timing                                                                    
of the revocation had to take place before the sexual act.                                                                      
Representative  Tarr added  that mens  rea was  a factor  to                                                                    
evaluate  the   behavior  and   believed  that   there  were                                                                    
protective layers  that prevented  any accusations  found in                                                                    
criminal behavior.                                                                                                              
11:33:21 AM                                                                                                                   
Mr. Skidmore furthered that the  law was designed to protect                                                                    
against miscommunications.  The law  required proof  that an                                                                    
offender acted  recklessly in terms  of lack of  consent. He                                                                    
offered that if the individual  agreed at the time there was                                                                    
consent  and admitted  to revocation  after  the act  proved                                                                    
there was  prior consent.  Representative Wool  relayed that                                                                    
there were many  cases where a person had  been drinking and                                                                    
seemed totally coherent  and later they blacked  out and did                                                                    
not  remember anything.  He used  an example  of an  extreme                                                                    
case related  to a person not  remembering murdering another                                                                    
person.  He  asked  whether  that  was  incapacitation.  Mr.                                                                    
Skidmore  replied that  it did  not meet  the definition  of                                                                    
incapacitation. He was familiar  with the concept of alcohol                                                                    
blackouts and even  though the victim would say  she did not                                                                    
recall  consenting but  there were  other witnesses  stating                                                                    
that the two  people were equally engaging  made those types                                                                    
of  cases  very difficult  or  impossible  to prosecute.  He                                                                    
reminded the committee that mens  rea was considered and the                                                                    
law required proof beyond a reasonable doubt.                                                                                   
11:36:23 AM                                                                                                                   
Representative  Rasmussen asked  for an  explanation of  the                                                                    
current process where the Department  of Public Safety (DPS)                                                                    
brought  a case  forward  and asked  DOL  to prosecute.  She                                                                    
heard a lot of concern  from certain committee members about                                                                    
the need to get a contract  to engage in sexual activity and                                                                    
she was  not fully understanding  why the concern  was being                                                                    
raised.  Mr.   Skidmore  responded   that  in   an  incident                                                                    
involving a  sexual act,  the victim  in the  scenario would                                                                    
first  have  to  report  to law  enforcement  and  then  law                                                                    
enforcement  would  investigate   and  gather  evidence.  He                                                                    
explained that  law enforcement would then  consider whether                                                                    
the situation violated current laws  and if so, the case was                                                                    
referred  to  the  prosecutors    office.  The  state  would                                                                    
consider  whether the  elements of  the case  was enough  to                                                                    
prove  something  beyond a  reasonable  doubt.  He said  the                                                                    
process would  not change under  the proposed  law. However,                                                                    
what would  change was  the law and  actions that  should be                                                                    
criminalized or not. Representative  Rasmussen used a future                                                                    
scenario  where her  daughter was  at a  party, and  someone                                                                    
tried to  engage in  sexual activity,  and she  stated  no.                                                                     
Currently, it was  completely legal for the  other person to                                                                    
engage in sexual  activity with the daughter.  She asked for                                                                    
verification  that it  was  currently  completely legal  for                                                                    
someone  to engage  in sexual  activity with  her under  the                                                                    
scenario. Mr. Skidmore answered in the affirmative.                                                                             
11:39:58 AM                                                                                                                   
Representative  Carpenter  provided  a  scenario  that  took                                                                    
place in a  rural setting. He asked where a  victim could go                                                                    
if law  enforcement was the  problem. Mr.  Skidmore answered                                                                    
that  the individual  would  go to  the  state troopers.  He                                                                    
indicated that  if an officer  was involved  in perpetrating                                                                    
any crime against an  individual it warranted investigation.                                                                    
He  detailed  that  each  law   enforcement  agency  had  an                                                                    
internal affairs  department to investigate  internal crimes                                                                    
however,  if it  happened  in a  rural  village, the  person                                                                    
would turn  to the state  troopers. He added that  the state                                                                    
prosecutors  had   a  special   unit  called   the   Special                                                                    
Prosecutions Unit   that handled crimes by  law enforcement.                                                                    
Representative  Carpenter  commented  that  someone  in  the                                                                    
situation  would  be reluctant  to  trust  reporting to  law                                                                    
enforcement. He  wondered if there  were other  places where                                                                    
they could  report a crime  outside of law  enforcement. Mr.                                                                    
Skidmore suggested  the scenario would be  difficult because                                                                    
it required  an investigation, which  had to be done  by law                                                                    
11:43:17 AM                                                                                                                   
Representative  Josephson thought  the reason  the bill  was                                                                    
important had  to do  with its effect  in a  courtroom where                                                                    
the jury instructions would look  different. He guessed that                                                                    
the bill  would cause potential  new cases. He  deduced that                                                                    
there  would still  be a  need  to decline  many cases.  Mr.                                                                    
Skidmore replied that changing the  law would allow for more                                                                    
cases to move forward. However,  the bill would not make the                                                                    
cases  any easier  to  prosecute and  he  expected that  the                                                                    
cases would remain difficult to  prosecute. The question was                                                                    
not how to make the  process easier but what behavior should                                                                    
be  illegal.  He  thought  that  the  cases  would  be  very                                                                    
difficult but it was not a reason not to modify the law.                                                                        
11:45:33 AM                                                                                                                   
Representative Wool  exemplified someone  who froze  and was                                                                    
too scared to  say no or fight back but  there was no force.                                                                    
He wondered if the delineation  was no consent and no force,                                                                    
but the  act proceeded because  there was no  resistance and                                                                    
no fight.  He asked if that  was the no crime  scenario. Mr.                                                                    
Skidmore  answered  in  the  affirmative.  However,  it  was                                                                    
always  difficult   to  provide   a  definitive   answer  in                                                                    
prosecution because each case   was different. He noted that                                                                    
he had  never seen the  same fact pattern twice.  There were                                                                    
similarities in cases, but there  were always nuances. There                                                                    
were  likely  many more  facts  than  what was  provided  in                                                                    
hypothetical situations.  He suggested that  the legislature                                                                    
set policy around conduct it  deemed should be criminalized.                                                                    
He was cautious  with hypothetical scenarios. Representative                                                                    
Wool indicated  he asked the  question because  Mr. Skidmore                                                                    
unequivocally  stated   no   to  Representative  Rasmussens                                                                     
question. Mr. Skidmore stated in the affirmative because he                                                                     
believed it was the category the bill covered. However, the                                                                     
nuances of the case had to be understood as well.                                                                               
Co-Chair Merrick commented that the committee liked                                                                             
hypothetical scenarios.                                                                                                         
Representative Tarr thanked the co-chair for hearing the                                                                        
Co-Chair Merrick reviewed the agenda for the afternoon.                                                                         
HB 5 was HEARD and HELD in committee for further                                                                                

Document Name Date/Time Subjects
HB 5 Supporting Document 051222.pdf HFIN 5/12/2022 9:00:00 AM
HB 5
HB 5 Sectional Analysis HJUD v. F0 51222.pdf HFIN 5/12/2022 9:00:00 AM
HB 5