Legislature(1997 - 1998)
04/28/1998 02:09 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
CSSB 323(FIN) am - SEX OFFENSES & OFFENDER REGISTRATION Number 1080 CHAIRMAN GREEN announced the final item of business would be CSSB 323(FIN) am, "An Act relating to sexual offenses, to those who commit sexual offenses, and to registration of sex offenders; amending Rule 6(r)(2), Alaska Rules of Criminal Procedure; and providing for an effective date." Number 1114 KRISTY TIBBLES, Researcher for Senator Drue Pearce, Alaska State Legislature, came forward to present the bill on behalf of the sponsor. She read from the sponsor statement as follows: "The Alaska penalty for distribution of child pornography is a class C felony and is not more than five years. Law enforcement officers are encountering problems in trying to prove distribution, and offenders are often charged with or pled down to possession of child pornography, a class A misdemeanor offense with a penalty of not more than one year in prison, unless the offender is convicted of more than one count and receives a consecutive sentence. Senate Bill 323 increases the offense for possession of child pornography to a class C felony, and the offense for distribution to a class B felony, punishable by not more than ten years in prison. "Senate Bill 323 also creates the offense of indecent exposure in the first degree if the offender knowingly masturbates within the observation of a person under 16 years of age. This crime will be a class C felony offense. The bill makes the existing offense of indecent exposure, indecent exposure in the second degree. The penalty for this offense is a class A misdemeanor when committed before a person under 16 years of age, and a class B misdemeanor when committed before a person 16 years or older. "Senate Bill 323 requires sex offender registration for the offenses of indecent exposure in the first degree, indecent exposure in the second degree if committed before a minor under the age of 16 for the second offense, and possession of child pornography. Currently, only offenders who are convicted for distribution of child pornography are required to register. "The existence [and] distribution of child pornographic images creates the potential for many types of harm in the community and presents a clear and present danger to all children. Strengthening the penalties ... for these crimes sends a clear message that the degradation and exploitation of our children will not be tolerated. Agencies in support of Senate Bill 323 include the Department of Public Safety, the Alaska Peace Officers Association, the Anchorage Police Department, the UAF police, STAR, the Juneau Police Department, and the UAA police." Number 1222 REPRESENTATIVE BERKOWITZ asked what changes the bill makes to the elements of proving distribution cases. MS. TIBBLES answered that one addition, in Section 6, is language that allows possession of 100 or more pieces of child pornographic material as prima facie evidence of distribution. REPRESENTATIVE BERKOWITZ referred to Section 9 on page 3 and said there is no statute of limitations for pursuing a criminal. MS. TIBBLES explained that is current statute. She stated that Section 9 adds the offense of indecent exposure in the first degree to that statute. REPRESENTATIVE BERKOWITZ said that he understands that. He referred to Section 1 and said there is a civil statute. You could conceivably be in a position where you're prosecuting a criminal case after the civil period has expired. Representative Berkowitz said if the state is allowed to pursue a criminal case, then a victim ought to be permitted to pursue a civil case, even if the civil statute of limitations might have lapsed. CHAIRMAN GREEN said that is current law. Number 1333 REPRESENTATIVE ROKEBERG questioned what the rationale was of raising possession of child pornography from a misdemeanor to a class C felony. MS. TIBBLES said it was raised at the request of the Alaska Peace Officers Association. She explained that it was originally raised to a class B felony and the Department of Law asked that it be reduced to a class C felony because of the penalty of it being a class a misdemeanor. REPRESENTATIVE ROKEBERG said, "The way I read the bill is if you ... have one photograph depicting anything that might be interpreted to be child pornography which, as I understand it - I have not seen it, but maybe even be able to download it off the World-Wide Web I think. So if you had a youngster who did that, brought it up on the web and downloaded it onto the printer you'd be committing a felony. Is that what we're intending to do here? I mean it seems a little radical to raise it all the way up to that (indisc.--coughing) one piece or something. If you're in possession of it, you're committing a felony whether your brandish it or whatever, you're committing a felony." Number 1405 REPRESENTATIVE BUNDE said he realizes the potential is there for bringing a charge, but would they choose to bring a charge and would there be a conviction? REPRESENTATIVE ROKEBERG said, "If you seize it, you're busted and if you got it then you're guilty." He said he would like to know what constitutes child pornography. CHAIR GREEN asked, "This was because of Anchorage PD (Police Department) you said?" MS. TIBBLES answered in the affirmative and noted that Officer Glen Klinkhart is signed up to testify. REPRESENTATIVE BUNDE referred to trying to define child pornography and said he came across information where there was a suntan lotion ad of a young girl playing on the beach with a puppy playfully pulling on her diaper or swimming trunks. That was child pornography and was relished as a pin-up. Representative Bunde said that has to be a difficult, as all pornography is, definition. REPRESENTATIVE PORTER indicated he just reviewed the definition and that depiction would not be child pornography. REPRESENTATIVE BUNDE said it is used to stimulate people even though it was not originally created for that purpose. Number 1620 REPRESENTATIVE ROKEBERG said, "Mr. Chairman, I was just reading the definition here and it comes to mind -- there is here subsection (6), 'the lewd exhibition of the child's genitals'." He said he remembers a classic Victorian piece of landscape architecture of a water fountain with a young child urinating water from a well. Therefore, if you were in possession of that, you would be subject to a class C felony." Representative Rokeberg said his major concern is that if you are in possession of any of items listed in the bill -- if you buy it on the newsstand and you're in possession of it, it might be a felony. REPRESENTATIVE BUNDE said, "Magazines and newspapers that are specifically designed for that information." REPRESENTATIVE PORTER noted they aren't lawfully for sale. REPRESENTATIVE CROFT said, "I guess I'm confused between unlawful exploitation, which is, in this state, getting a child to do this - and possession of wherever produced. Section 11.41.455, which was the definition we were worried about for lewd exhibition." He stated he can understand unlawful exploitation. There is a distinction between getting a minor to do this and being in possession of pictures of it. CHAIRMAN GREEN informed Mr. Klinkhart that the committee is concerned about page 3, which speaks to the fact that we now have gone to a class C felony. He asked what would constitute the possession of enough material that would require such a stiff penalty. He cited the example of downloading a picture off of the Internet. He also asked, "Would your interpretation of this be that if somebody had a picture that would possibly be considered a pornographic ... picture of a 17-year-old, if that would constitute a felony?" GLEN KLINKHART, Anchorage Police Department, testified via teleconference from Anchorage. He referred to policy procedures that they go through on state and federal levels and said most of the district attorneys that he has spoke to on different cases he has been involved with are all in agreement that you need to have more than just one. One could be constituted as a mistake. Mr. Klinkhart referred to a case he was involved in where a woman was looking on the Internet for a recipe. She clicked on a picture and up came a photograph of a nude female, approximately 12 years old. He said in order for the woman to report it to him, he had to go to her house and view it on the computer. He said that was accidental on the part of the woman looking for the recipe. She was right to report it to the police. Mr. Klinkhart said the department then started a case involving the person who posted it. In speaking with several prosecutors he works with, they don't just want one or two, they want ten photographs. Finding more than a couple has never been a problem in the cases he has worked. [Due to the teleconference connection, part of Mr. Klinkhart's testimony was indiscernible]. MR. KLINKHART said there was a gentleman who was trading pictures like baseball cards. That is how they are being distributed and generally, they don't buy them. They actually have whole series of different photographs that have been taken from the 1950s, 1960s and the 1970s. He indicated that the old photographs that are around 20 or 30 years ago have become collector items. REPRESENTATIVE BUNDE asked Mr. Klinkhart if in his experience nobody has ever been prosecuted for possessing fewer than ten photographs. MR. KLINKHART responded in the affirmative. He said he currently has, on his case-load, four or five cases. Last year, they've actually charged and have begun (indisc.) proceedings for others over the last year. There are usually more than ten pictures involved. He stated they will find one or two pictures which leads them to more. Mr. Klinkhart indicated most instances involve the Internet. Number 2073 REPRESENTATIVE BERKOWITZ said it has been indicated that there has been some proof problems with some cases. He asked Mr. Klinkhart where he thinks the hard parts are of proof are in distribution cases. MR. KLINKHART pointed out that distribution is somewhat of a problem because like drugs, you have to do a buy. You have to be able to get into the organization or at least be able to do (indisc.). With child pornography, that is something they have to be really careful of. You can somewhat control the money that you give people by serial numbers going from one person to another. He said, "Our big fear and problem with child distribution of child pornography that if you become unlawfully involved in ... (indisc.), unfortunately, we (indisc.) provide them the money for -- in most cases they trade photographs of children. And I, myself, and I've talked with our chief of police here in Anchorage and other law enforcement agencies, we don't want to get into that mainly because if I go send a photograph to somebody, and basically set up some sort of (indisc.), within seconds they can turnaround and distribute that to literally thousands of people. And I think that that situation we don't want to get into. I could definitely show you over the time period that I was investigating these cases that these people are not selling them, they are trading them. Last night I was on the Internet and did a search for Alaskans, people here in Alaska, who are on these different areas. Usually they're called news groups and chat groups. I was on the Interest relay chat last night, you can watch how people who are within Alaska getting onto these national sites and are entering areas called places like mom/daughter sex, dad/daughter sex, family sex. And going into these areas -- and they're trading. You can literally see these people setting up their computers and allowing people to upload - download files. That, in itself, could be relatively good information because as that could show, 'Hey, I got a computer out here, I want to send you a file, you send me a file.' And that sort of thing works to help prove distribution. But after the fact, once we get in there, unless we can catch you at the keyboard, which can be very difficult in (indisc.) cases. So, as anybody knows, you reach over and hit the power key makes it very difficult to be able to show that that person actually was actually doing a transmission. They look at it like drugs, somebody who have four pounds of cocain. That's not for ... ones own use." Number 2199 REPRESENTATIVE BERKOWITZ referred to the quantity measure of 100 and asked if that measure has been used in other jurisdictions or federally. MR. KLINKHART responded, "Not that I'm aware of ... but that's not to say that it can't." He indicated that Alaska has sort of taken the lead, nationally, in these kind of cases. Mr. Klinkhart referred to the Alaska sex offender registry on the computer said and indicated that sex offenders absolutely hate it. A lot of other states have been asking Alaska how we did it. He discussed a case he worked on and said it related to a gentleman who is what they call "a boy lover." They don't call themselves pedophile but do call themselves "boy lovers" or "girl lovers." He noted those people don't think that people who love children, sexually, should be on the sex offender list. Mr. Klinkhart said that we're just telling those people, "If you're going to be collecting this stuff and trading it that we're not going to allow it." Number 2265 REPRESENTATIVE CROFT referred to Victorian era pictures or depictions of naked children and asked Mr. Klinkhart how he distinguishes, in the prosecutions, the adjective "lewd" that is in Section 11.41.455, "the lewd exhibition of the child's genitals." He questioned what a non-lewd exhibition of the child's genitals is. MR. KLINKHART explained that the general rule that they have attempted to apply is they look at the photograph and question what the main focus. Is it a nude child and is it kind of a nature sort of a photograph? Is the focus point of the photograph the gentiles? He stated he has seen enough that when he looks at a photograph he can pretty much tell such the legs are spread or the child looks down at the area. REPRESENTATIVE CROFT asked Mr. Klinkhart if there has been situations where he has decided not to prosecute because it hasn't appeared to be focused on the genitalia and hasn't appeared to be lewd. It appeared to be something else. MR. KLINKHART explained that he wouldn't say that they haven't decided to prosecute as there are currently several open cases that are in the grey area. He said he is waiting for more evidence. He will hold those cases, continue to watch the suspect and monitor certain activities. There are eight other things that fall into that which include older photographs and etchings. It's not enough to have a drawing. A lot of people are surprised to find out that drawings and writing doesn't fit into the child pornography (indisc.). Number 1412 REPRESENTATIVE CROFT asked, "Are those standards, for what is lewd and what is not, written down somewhere - the things that you analyze in making that determination?" MR. KLINKHART explained that he has been using the federal guidelines as those guidelines are a little bit more straight into specifically looking at the focus point being the genitalia. The state uses the words "lewd" and "lascivious" which are very broad. REPRESENTATIVE CROFT asked Mr. Klinkhart to send him a copy of the federal guidelines. He asked if the federal guidelines are regulation or statute. MR. KLINKHART indicated it is in statute. He said he would forward the guidelines to the committee. REPRESENTATIVE CROFT said, "The reason we've increased these penalties to such a point is we're always tying it to a specific child having to have gone through this. So you're point before about stories or cartoons or whatever - the reason we elevate these penalties is because I see even in the..." TAPE 98-75, SIDE B Number 0001 REPRESENTATIVE CROFT continued, "...minor having gone through this. Is that right?" MR. KLINKHART responded, "That's correct. Not only be able to find the minor, however, we are seeing some folks, who think that they're not happy with some of the stuff that's available out there are starting to manufacture child pornography. They're going out and assaulting children and photographing it into their computer. One of the things where the cases that I've done have started out as strictly child porn cases and have reason to believe people were even trading or having possession of it. We have ... how should I tell you, in every case that I've come across, I have reason to believe that those same people have, in the past, or currently are sexually assaulting children." Mr. Klinkhart said when he worked with their "crimes against children" detective, he has found that people who are sexually assaulting children are often times involved in child pornography. He said there seems to be a definite connection. Number 0035 REPRESENTATIVE ROKEBERG asked if in any of the cases Mr. Klinkhart has been involved in has it ever been asserted an affirmative defense about whether a person was knowingly in possession or not. MR. KLINKHART indicated a person ha to knowingly locate child pornography and they have to go through several steps to find it, and then they take it from their computer and the put it somewhere else, either on their computer or on an external disk. Some people have gone so far as to sort and organize it. Knowingly has never been a problem, especially in some cases where they have to literally go through hundreds of photographs. REPRESENTATIVE ROKEBERG referred to the term "lascivious" and said he doesn't see it in statute. MR. KLINKHART indicated he didn't bring any of his information with him. REPRESENTATIVE ROKEBERG asked if there are other statutory citations where lascivious is used conjunctively with lewd. MR. KLINKHART responded, "I think you're thinking of the federal guidelines which is kind of why were here because we have to -- in order to get these guys charged as a felony, we have to go through the federal. So I've actually (indisc.) of going federally with some of these." Number 0133 REPRESENTATIVE ROKEBERG suggested that if the standard for possession was increased to 10 or 12 items, would that hinder the department's ability to prosecute the offenders? MR. KLINKHART said he doesn't believe so. He said the only thing is that you get into those people who are going to save "nine here, nine there," and what not. He noted the federal attorneys have asked for nine or ten, (indisc.) show a pattern. That goes back to "knowingly." One or two could be an accident. Three or four could be in that grey area. REPRESENTATIVE ROKEBERG asked Mr. Klinkhart if it would help him do his work if the crime were raised from a class A misdemeanor to a class C felony. Number 0181 MR. KLINKHART said in speaking with other officers, he believes raising the class would do a couple of things. It would let people in Alaska know that this is a serious crime. He said not only do we have people who are assaulting children and photographing them, but they trade those photographs. He continued to give testimony which was indiscernible on the tape. Number 0278 REPRESENTATIVE CROFT stated he supports the legislation and believes it is the right approach. He said, "I'd like to take that federal definition of what is lewd and give us more guidance on it and I'd like to get that and see if it fits into here so that we can know, in that area, what it is and what it isn't. I don't want to delay the bill, but I don't know how quickly I can get that and get it turned around in to a proposal." CHAIRMAN GREEN asked Mr. Klinkhart if he is going to fax the information. He also asked if it is more than one page. MR. KLINKHART responded that he will have to find it and noted it is back at the police station. REPRESENTATIVE ROKEBERG asked, "Christy [Ms. Tibbles], when you looked at this, did you consider any kind of a two-tier system on this possession? (Indisc.) like the first offense would be a misdemeanor and then there after be a penalty. Did you ever consider that?" Number 0317 MS. TIBBLES said they didn't consider that in the beginning. She noted she did speak to Mr. Klinkhart about the amount of photographs possessed and, like he stated, it's hard to draw the line. If you have ten, why is nine okay? REPRESENTATIVE ROKEBERG said he thinks that creates a loophole. REPRESENTATIVE BUNDE referred to the definition of "lewd" and said if Representative Croft felt that was necessary and wanted to offer that as a floor amendment, he would co-sponsor it. REPRESENTATIVE PORTER stated he is hesitant to fix things that aren't broke. He said the penalty is being increased in existing statute with an existing definition. If there haven't been prosecutorial with establishing it, he isn't anxious to start any. Number 0357 REPRESENTATIVE CROFT stated that we haven't had prosecutorial problems because good officers, like Mr. Klinkhart, have been referring to the federal definitions. That is probably proper but not required by the statute. The very thing that Mr. Klinkhart is doing is what Representative Croft wants to make sure is done in that there be some kind of a definition for the standards. The very fact that an officer has to look some place other than the Alaska Statutes seems to be an indication that there is a problem. He was filling that whole properly with the federal definition. Number 0398 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, came before the committee to testify in support of CSSB 323(FIN) am. It is an important piece of legislation and the link between child pornography and child abuse is much too prevalent for us to ignore. CHAIRMAN GREEN referred to testimony from Mr. Klinkhart regarding there being a reference to federal guidelines. He asked Mr. Guaneli if he finds that necessary in prosecution or is there enough in statute. Number 0419 DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law, came before the committee. He stated it sounds like, from what Mr. Klinkhart said, there really isn't much of a problem in terms of establishing what pictures are so bad that they constitute child pornography. He said although federal definitions might be helpful for purposes of law enforcement and guiding investigations, he isn't convinced that we have a particular problem with these cases. He said, "It sounds like they're getting enough pictures that people are willing to come in an admit -- I don't know of cases that have actually gone to trial where people want any of those pictures shown to the jury. I think they're probably going to come in and cut whatever deal they can with the prosecution. So I'm not aware of any problems. It seems as though that particularly the language in the exploitation of minors statutes about the lewd exhibition, and all the rest, probably provides enough guidance in terms of the investigators choosing which pictures fall within ... those parameters. But without having ... seen the federal guidelines, I don't want to say for certain, but it doesn't strike me as though, from what occurred that it's necessary." CHAIRMAN GREEN referred to the picture of the girl with the puppy pulling at her bathing suit and said it is certainly different than some of the other descriptions that have been indicated. MR. GUANELI responded in the affirmative. Number 0485 REPRESENTATIVE BERKOWITZ said Mr. Klinkhart testified that he thought that their might be good reason to have statewide standards for these types of crimes. He said it seems to him that Representative Croft's concept of incorporating the federal regulations, that Mr. Klinkhart is using in Anchorage, might be of some assistance, particularly in the smaller jurisdictions as you don't have officers that have the capacity to specialize in different crimes. MR. GUANELI responded that it might be helpful from a law enforcement standpoint, but he isn't certain that it necessarily needs to be written into statute. It is something that he believes the law enforcement community, if they feel that those are appropriate guidelines, could certainly circulate. He said that whenever you use words to describe conduct or to describe conduct or something like this, there is always going to be grey areas or some vagueness. He said, "I think it's like one supreme court justice said about obscenity, 'You know it when you see it.' And I think the experienced officers, I think, have that ability." REPRESENTATIVE BERKOWITZ said, "The cases we've all heard reference to, though they're based out Anchorage, and Eagle River and that area, which seems to indicate either the rest of the state doesn't suffer this problem or else isn't equipped to prosecute it. And if we were to implement some standards that would allow officers, throughout the state, to pursue these cases, it could be of some assistance." MR. GUANELI informed the committee that he isn't disputing that it might be of some assistance. He thinks that perhaps what the problem may be is that Anchorage has an experienced officer who has been trained to seek this out. He said he recently received a notice for further training for other officers in detecting child pornography and other computer-type offenses. The more training that's available might be part of the solution. Mr. Guaneli stated he isn't objecting to taking a look at them. He is just questioning whether it's absolutely necessary. Number 0602 REPRESENTATIVE PORTER some years back when this area of the law was first being identified as a serious problem, some of these kinds of considerations at the municipal level were looked at. He noted that while he was the chief of police, the municipal assembly spent days writing definitions and running them back and forth against case law in the district attorney's office. It is no simple task. If it is that we have successfully prosecuted with the definitions and understandings of the elements of these crimes as they are currently stated in the books, he would be very cautious about interrupting it. He cautioned that if it's not broke, let's not fix it. REPRESENTATIVE ROKEBERG said it would be changed by raising the punishment and, also, because of the sex offender requirement, another layer is being added. CHAIRMAN GREEN explained the offense is being changed, but not the determination that constitutes it. REPRESENTATIVE ROKEBERG said, "I'm concerned about the planting of material, the lack of knowingly being in possession, no pattern or anything else here that could be used with -- if there is a breakdown in prosecutorial restructuring then there could be a prosecution and would be warranted into a felony situation. So...." REPRESENTATIVE CROFT said he doesn't know whether the case law has further described the word "lewd" to give it more legal depth so that we know some of the things Mr. Klinkhart was talking about, undue focus on the genitalia and other factors that might be looked at. He stated he does think if it doesn't have it, it needs some. The word "lewd" is too subjective for a class B and class C felony. Number 0790 MR. GUANELI explained that there used to be a statute in Alaska called, "Lewd and Lascivious Acts Toward a Child." It was repealed in the 1980 revision of the criminal code, which gave us all our current criminal law. He stated that he doesn't believe that there is any Alaska case law, except from the 1970s, that talks about what lewd is. He indicated he would review that get back to the committee. REPRESENTATIVE CROFT said, "We don't have to hold up this bill for that discussion, but I'll look for that material from the officer and that information from Mr. Guaneli and see whether it needs more definition or not. It is -- both Representative Porter and Rokeberg are right. It's not changing the elements, but it is upping the price pretty substantially ... so it could reasonably increase our concern that we've got the proper definition in there. But it doesn't mean that we have slow this (indisc.)." CHAIRMAN GREEN said, "Well, if you can get that and feel that's important enough to offer an amendment tomorrow, we could take up five minutes of tomorrow's agenda and either pass it with or without that type of a change." [CSSB 323(FIN) am was held over]
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