Legislature(1997 - 1998)
04/29/1998 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 323(FIN) am - SEX OFFENSES & OFFENDER REGISTRATION Number 0104 CHAIRMAN GREEN indicated the next order of business would be CSSB 323(FIN), "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," sponsored by the Senate Finance Committee. KRISTY TIBBLES, Researcher to Senator Drue Pearce, Alaska State Legislature, came before the committee. She indicated that at the meeting the previous day there was concerns regarding the bill. REPRESENTATIVE CROFT said he reviewed the bill with Mr. Guenali and it is as difficult as people thought to define this area of the law much further. He said they could not find federal guidelines. There were some federal statutes, federal cases and some old state cases that gave some more illumination to it. Representative Croft said there may be a way to do this better, but there probably isn't a way to do it better in the next day or even two weeks. He said he appreciates the chairman giving him a day to try and figure out if there is someway to define it better. Number 0243 REPRESENTATIVE ETHAN BERKOWITZ indicated he had a proposed amendment and moved to adopt it. CHAIRMAN GREEN objected for the purpose of discussion. REPRESENTATIVE BERKOWITZ explained what he is trying to do with the amendment is to ensure that if the state brings a criminal charge against the sexual perpetrator, the victim similarly situated can also seek redress at that time as the statute of limitations would have otherwise expired. Number 0321 REPRESENTATIVE BRIAN PORTER questioned what the current statute of limitations is. REPRESENTATIVE BERKOWITZ responded that it is three years after discovery and it is located in Section 1 of the bill. He referred to Section 9 and said, "Even if the general time limit of limitations expires the prosecution for sexual offenses - for an offense committed against a person under the age of 18 may be commenced at any time." REPRESENTATIVE JAMES said she doesn't know why the amendment is needed. REPRESENTATIVE BERKOWITZ explained the criminal charge can be brought at any time but the civil case can't be. A person could be in a situation where the state would be bringing a criminal charge, but an individual might not be permitted to bring a civil case. Number 0430 REPRESENTATIVE CROFT said it seems to be particularly appropriate in dealing with sexual offenses involving children. There are various reasons why a child or guardian may not bring that action within three years. REPRESENTATIVE PORTER said if he understands the meaning of the amendment, there will be no statute of limitations for a civil case brought by an alleged sexual assault victim against the alleged offender. REPRESENTATIVE BERKOWITZ responded, "If the victim was under 18 at the time of the offense." REPRESENTATIVE PORTER said, "All of the reasons that we discussed about adding reasonable statutes of limitations, the statutes of repose come into play. As much as child sexual abuse is a despicable thing, bringing one of these cases 25 years later creates problems that I don't think they're outweighed by the benefit." He stated he can't support the amendment. REPRESENTATIVE BERKOWITZ stated that is true, but we've made exception in the criminal law. If there is a discovery 25 years later, we're allowing the state to pursue an action. For all the reasons talked about earlier, for eliminating actions would logically apply to the state for a criminal action. He said he believes a limitation should be put on the state's ability to bring a criminal action or loosen the ability of an individual to bring civil action. Number 0590 CHAIRMAN GREEN suggested, as a friendly amendment, that on line 8 if instead of "at any time," change it to say "within three years after the victim reaches the age of majority." He said, "In other words, this 5-year-old has been put upon. Now he reaches 21 and so that then gives him nearly 20 years find, plus the fact that whatever suppressed his ability to bring the cause of action earlier - now he's an adult and would not be subject perhaps parental or at least family-type abuse." REPRESENTATIVE BERKOWITZ said he believes that is a step in the right direction. He pointed out that the limitation operates under the assumption that people leave home when they're 18. He noted that are a lot of people who don't for various reasons. CHAIRMAN GREEN referred to a person who was to bring a civil action for abuse that happened many years ago and asked if that same person would stay in that household after they were an adult. REPRESENTATIVE BERKOWITZ stated there could be circumstances where an individual would such as to protect a younger sibling. CHAIRMAN GREEN said that open-endedness is probably more than he can handle. REPRESENTATIVE JAMES stated criminal law is punishable by fines or imprisonment or both. Civil law seems to be only punishable by money. She said sees this as opening the door for family distress. Representative James said when people go to court on a civil case two things have to be measured, "What is the result going to be? And how much money you want to get?" Representative James said she understands the argument by Representative Berkowitz that if the criminal act is okay, that the civil act should be okay. She stated she doesn't see any connection between the two. There might be a case when a child had been sexual assaulted when they under six and by the time the child gets into the hands of the state, they are a teenager. There may be some costs incurred by the state because of something that happened to a child a long time ago. She said she doesn't have any real discomfort in allowing the criminal action to be carried forward because it has a different motive. A civil case only has the issue of money. If there isn't money, a lawsuit probably wouldn't be filed and if there is, there would be a lawsuit filed. Representative James stated she isn't comfortable with the amendment. REPRESENTATIVE BERKOWITZ said, "Maybe I can offer an amendment that combines the friendly amendment you had which would be something, 'Within three years of majority or within three years after the onset of criminal prosecution.'" Number 0852 REPRESENTATIVE PORTER asked if that doesn't just extend what the current law provides by one year. KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, Alaska State Legislature, came before the committee. He explained that in AS 09.10.140 it states you would have two years after you become the age of majority. If the causing event happens while under the age of majority, it is towed until you reach the age of majority in which time you have two years to bring the action. There are also two special provisions for sexual abuse. He stated that it seems that if you have an injury or illness, being psychological he would imagine, that you discover and you relate it back to an event, you have three years from the time you make that connection that your psychological problems are related to the sexual abuse. Mr. Jardell stated that there are provisions. REPRESENTATIVE BERKOWITZ said, "The loophole is there might be a situation, and I've seen them in other states, where a victim makes a decision not to pursue a case, fully cognizance of the effect it's had him. Yet, after a period of time, the state pursues a criminal case, maybe not against this individual victim but a case that would involve this victim, in which case the victim has, in a sense, been forced to confront ... their past in a way they might not have otherwise chosen to do, in a time they otherwise (indisc.) chosen to. And at that point, their own personal statute of limitations has lapsed, but they've been brought back into all the abuse that occurred before." Number 0994 REPRESENTATIVE PORTER said, "I guess you could come up with a 'what if' and just about an exception to every rule that we have. But that individual what if - is not going to happened enough to change my mind on this being appropriate position that is in without this amendment." REPRESENTATIVE CROFT said Representative James discussed that we can fine or imprison with criminal or solely fine with civil. He said it seems that if you're going to throw someone in jail based on evidence getting stale, you're going to do the greater thing, but you're not going to allow the victim recover. It seems backwards in that if you want to close off something at some point, you close off the one with the more egregious consequences and not the one with the less egregious consequences. He said he isn't sure why there is an unlimited statute of limitations on this. Representative Croft stated, "I think there are good reasons. This is a thing that children often don't understand, sometimes can't fully understand, or that it takes them a long time because they're so embarrassed to tell. And so it is an area that is particularly ill suited to restrictive statute of limitations - put the other way, it's particularly well-suited to giving them a lot of ... time." Number 1090 CHAIRMAN GREEN said if this was such a crime that it would cause monetarily correctable damage, the current statute allows for two years past the majority. If it were going to be something where they would come back when they're 55 years old, it makes you wonder if the damage that was caused is correctable by some sort of monetary disposition as opposed to incarceration. REPRESENTATIVE BERKOWITZ explained that another reason why a lot of these cases proceed to civil court and that is so the victims feel like they get their day in court and have the opportunity to make their accusation and to have a jury validate their injuries which is above and beyond the money on many occasions. REPRESENTATIVE JAMES said the other one is the O. J. revisited as the evidence is more severely reviewed in a criminal case than it is in a civil case. The burden of proof is different. They could lose in a criminal case and then file a civil case. REPRESENTATIVE PORTER said he thinks that is one of the reasons that a distinction between an unlimited amount of time to go back on a criminal case and trying to do the came thing for a civil case. It significantly different as there is a very high burden of proof in criminal cases. Representative Porter said he would venture to say that you could count on one hand the amount of successful prosecutions in this kind of situation that goes back 30 or 40 years. At the time that was put into statute, he would guess the repressed memory syndrome was popular. Over the last few years, it is becoming more and more evident that is a unlikely occurrence. He stated he would not support the amendment. CHAIRMAN GREEN stated there is an amendment before the committee and an objection is maintained. He requested a roll call vote on Amendment 1. Representatives Rokeberg, Porter, James, Bunde and Green voted against the adoption of the amendment. Representatives Berkowitz and Croft voted in favor the amendment. Amendment 1 failed to be adopted by a vote of 5-2. Number 1271 REPRESENTATIVE CROFT made a motion to move CSSB 323(FIN) am out of committee with individual recommendations and with the attached fiscal notes. There being no objection CSSB 323(FIN) am moved out of the House Judiciary Standing Committee.
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