Legislature(1999 - 2000)
04/07/1999 01:27 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
HB 34 - REPORTING CRIMES AGAINST CHILDREN
CHAIRMAN KOTT announced the first order of business is HB 34, "An
Act relating to the crime of misprision of a crime against a
child."
CHAIRMAN KOTT called on Representative Fred Dyson, sponsor of the
bill.
Number 0100
REPRESENTATIVE FRED DYSON, Alaska State Legislature, referred to a
newspaper article regarding a crime in Las Vegas, Nevada whereby
other people knew about a child being assaulted and ultimately
murdered, but didn't do anything about it. In looking at that
situation, HB 34 was drafted. It sends a very clear message that
there is a requirement to go to the aid or report a felonious
assault on a child that's in progress. The companion bill in the
Senate, SB 5, is broader in that it includes adults as well. If
the two bills get through the houses there might have to be some
compromise on that. He noted that he has three small amendments:
one takes it from a felony to a misdemeanor, one adds a positive
defense for not reporting in fear of one's own safety, and one adds
a small change. Most people assume in this culture that most
people will aid a child that is being hurt, but there is no
requirement to do so. As a professional mariner, he is required by
law to aid another vessel. He believes that aviators have similar
responsibilities as well. He reiterated the bill adds a provision
for citizens to go to the aid of a child who is being assaulted.
Number 0399
AMOS KISSEL testified in Juneau. He commented that he is for the
bill, but the wording needs to be changed. It is unconstitutional
in two ways. Firstly, it forces people to speak thereby violating
their First Amendment right. Secondly, he wondered whether the
"commiter" of a crime would also be a witness; and, if so, it would
put that person in double jeopardy prohibited in the Fifth
Amendment. He suggested the following language:
Any person other than the 'commiter' of the crime that saw and
then fails to report the sexual abuse, murder, kidnapping, or
felony assault of a minor commits a class C crime.
MR. KISSEL noted that the suggested language might still be in
violation of the First Amendment, however.
Number 0486
REPRESENTATIVE GREEN expressed how proud he was of Mr. Kissel for
testifying today.
Number 0502
REPRESENTATIVE ROKEBERG asked Mr. Kissel whether amending the bill
to allow an excuse for the failure to report a crime would help the
constitutionality issue. Therefore, if a witness felt that his
well-being was in jeopardy, he would not commit a crime if he
failed to report a crime.
MR. KISSEL replied yes.
Number 0552
REPRESENTATIVE CROFT asked Mr. Kissel whether he sees any way to
fix the First Amendment problem. The government sometimes forces
the people to speak. For example, a person has to file a tax
return which tells the government how much money he has made.
MR. KISSEL replied most people are scared that their life would be
in danger. If there was protection for speaking out that would
probably make people more willing to call in a crime.
Number 0667
COREY DAYTON testified in Juneau. He commented that he personally
likes the bill. He thinks it is good that somebody should report
a crime against a child, but he finds it unconstitutional because
of the First Amendment. House Bill 34 is a violation of any United
States citizen. Alaska is part of the United States and passing
the bill is a violation of a person's freedom of speech. He thinks
that if somebody sees a crime against a child, he should report it,
but if he doesn't the state shouldn't make him.
Number 0753
REPRESENTATIVE CROFT said the police say on television, "You have
the right to remain silent", but under this bill a person wouldn't
have that right.
MR. DAYTON said when the police don't read a person his
rights...(indisc.--coughing).
Number 0797
REPRESENTATIVE GREEN asked Mr. Dayton how he would react after
witnessing his buddy get "whopped up on."
MR. DAYTON replied he would report it.
REPRESENTATIVE GREEN asked Mr. Dayton whether he would still report
it if the person who did the whopping saw him.
MR. DAYTON replied yes.
Number 0836
REPRESENTATIVE ROKEBERG asked Mr. Dayton if he saw a fight before
school started would he have committed a crime under this bill if
he didn't report it to a police officer or the principal.
MR. DAYTON replied he was told that his student rights are
different at school. In other words, a fight like that has to be
reported. The constitution also says that student rights are
different than public rights when a student is away from school.
Therefore, it would be a crime if he saw a fight during school
hours and he didn't report it. But, if school hadn't started yet
it probably wouldn't be a crime.
Number 0922
CHAIRMAN KOTT noted that kids at school don't have any rights.
Number 0992
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, noted that
the department supports, for the most serious crimes, a bill like
HB 34. The department would suggest clarifying the bill to make it
clear that a victim is not required to report an offense if that
victim chooses not to. In comparison to SB 5, the department
supports the provision of reporting a crime against a child because
it further limits the bill. The department would suggest trying
only murder in the first and second degrees and kidnapping. She
understands the concern of requiring parents who know that their
children are being sexually abused to report it to the police.
However, last year the legislature adopted a law that addresses
endangering the welfare of a child in the first degree, which makes
it a class C felony for a parent to leave a child with any person,
including another parent, knowing that that person has hurt a child
either sexually or physically and the child suffers an injury. As
long as a parent is protecting a child, it is best to leave
reporting an incident to the discretion of a parent. There are
other things that can be done to remove a child from danger, such
as counseling, that may be in the best interest of that particular
child. The department would suggest removing sexual abuse of a
minor and sexual assault thereby leaving it up to the parent or
individual involved. The department would also support the
amendment reducing it to a misdemeanor. Hindering prosecution in
the first degree makes it a class C felony to witness or know about
a crime, or to aid a person who has committed a crime, or in some
way benefit from the commission of a crime.
Number 1227
MS. CARPENETI further said the First Amendment argument expressed
by the earlier testifiers is a wonderful argument. There are some
justices on the Alaska Supreme Court that say Congress may adopt no
law hindering the freedom of speech. But, laws have been held up
in the past that require teachers and physicians to report child
abuse, and to her knowledge, those laws have not been overturned
using a First Amendment argument. She thinks a court would hold
that the interest of the freedom of speech would be overridden in
the interest of child protection.
Number 1270
REPRESENTATIVE CROFT noted that Mr. Kissel also brought up double
jeopardy and the Fifth Amendment.
MS. CARPENETI said that is an interesting argument. She thinks
that probably wouldn't be applied to a person who has committed a
crime, and it probably wouldn't be upheld in court. She doesn't
think that it would be a problem in practicality.
Number 1311
REPRESENTATIVE DYSON said he thought double jeopardy was being
tried twice for the same crime, not concurrent charges of the same
crime.
REPRESENTATIVE CROFT noted that Representative Dyson is right, but
there is a possible Fifth Amendment violation by adding another
crime of misprision. The right to remain silent is the right to
shut up.
Number 1353
REPRESENTATIVE DYSON said the bill doesn't require a defendant or
perpetrator to speak up.
REPRESENTATIVE CROFT commented that Representative Dyson is correct
because of the term "another" [page 1, line 9].
Number 1373
REPRESENTATIVE GREEN wondered whether most people understand what
"assault punishable as a felony" is, where to go to immediately
report a crime, and can determine if a person is under the age of
18. It would be tough to distinguish between a 17 year old and a
19 year old, for example.
Number 1450
REPRESENTATIVE DYSON said a person would only be charged if it was
determined that a person was under the age of 18. He suspects that
a person could use, as a positive defense in court, ignorance and
misperception of the reality of a person's age. Most folks know
that a felony assault is pretty serious, however. It's not a
playground scuffle. He is sure that a court would only require a
reasonable effort to help a victim.
Number 1550
CHAIRMAN KOTT asked Ms. Carpeneti to discuss the concern of
immediately reporting a crime. He can think of instances in rural
Alaska where a person might not be able to report a crime until the
next day or for several hours, for example.
MS. CARPENETI replied the Senate included unclassified person
felonies as the type of offenses that have to be reported: murder
in the first degree, murder in the second degree, kidnapping, and
arson. The Senate considered the problem of immediately reporting
[a crime] because in some circumstances there would be a need to
get the child to a safe place before calling the police or law
enforcement agency. The Senate did not limit it to a person under
the age of 18 because it is sometimes hard to tell the age of a
child, and because unclassified person felonies are a small group
of crimes that are easy to...There is no assault crime that is an
unclassified felony.
Number 1633
REPRESENTATIVE GREEN said that issue has been brought up with other
types of reporting for the bush communities. He asked Ms.
Carpeneti whether that would apply for several days, until the
Village Public Safety Officer returns, for example.
MS. CARPENETI replied yes there would definitely be a defense of
impossibility to fulfill a responsibility in that case.
REPRESENTATIVE GREEN asked Ms. Carpeneti whether there would be
concern because a person could have used a phone and called
Anchorage, for example, if that person lived 300 miles away.
MS. CARPENETI replied that is a question of fact that a jury would
have to decide. It doesn't seem unreasonable to pick up a phone
and report the death or murder of a child. She hopes that the
courts would charge for using common sense under the circumstances.
She sees the bill as addressing cases like the one in Nevada, but
the law should be written clearly so that everybody knows its
intent.
Number 1695
REPRESENTATIVE GREEN said he is in favor of the concept. He just
doesn't want somebody to get trapped in a class C felony when he
was trying to do what he could for fear of his own safety or
further retribution to the child.
Number 1716
REPRESENTATIVE ROKEBERG said the bill does not distinguish between
juveniles. He asked Ms. Carpeneti whether a juvenile who reports
a crime to a person in authority would fit into the fact-pattern of
the bill. The bill says "assault."
MS. CARPENETI replied she would limit the bill to unclassified
felonies. It is possible for a child, who doesn't report a
schoolyard fight to a teacher or principal, to be reported to DFYS
(Division of Family and Youth Services). It is unlikely, however.
Number 1776
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether misprision is
a felony of common law.
MS. CARPENETI replied misprision is an old crime in common law, but
there are no common law crimes in Alaska.
Number 1798
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether it would be
possible to give rights to a cause of action in tort for monetary
damages if the alleged victim was over 18 years of age and
consented to some type of sexual abuse. In that case no crime was
committed.
MS. CARPENETI replied people can sue for just about anything. She
doesn't feels she is the best person to answer that question. It
is a civil law question.
Number 1837
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether there is
accessories to crimes in Alaska.
MS. CARPENETI replied yes. There is accomplice liability. She
explained when the bill was first introduced she asked the district
attorneys whether these types of situations even arise in Alaska.
The Fairbanks district attorney responded that there had been a few
cases in which people were present at the scene of a bad crime, but
hadn't done anything enough to be liable according to any
accomplice or hindering prosecution theories.
Number 1878
CHAIRMAN KOTT asked Representative Rokeberg whether he is concerned
that if a victim consented and someone reported it as a crime that
person's name could be defamed.
REPRESENTATIVE ROKEBERG replied exactly. The bill creates a new
classification of crime. It is the job of the House Judiciary
Standing Committee to look at the most bizarre fact-patterns to
ensure that the bill fits them.
Number 1915
REPRESENTATIVE CROFT said he is concerned because he sees felonious
assault as encompassing a vehement schoolyard brawl. The people
surrounding that brawl would then be either liable for a class C
felony or class A misdemeanor. It's important to determine whether
or not a child who is a perpetrator or a witness has to report it.
It creates a different tilt on reporting. The bill doesn't say
that a person can either "help" or "report". In other words, if a
person jumps in and beats a perpetrator off and walks away, that
person might be liable for a class C felony.
Number 2017
REPRESENTATIVE DYSON said he doesn't believe that he would have a
problem with putting an age limit on the person guilty of
committing the crime of misprision. There should be discussion on
what age it should be - 18, 21, 16, 14, etc. Obviously, there is
a lower limit where a kid would not be charged because he doesn't
understand this type of responsibility. In addition, he believes
that someone should be there to intervene. Just because the
perpetrator is a child it doesn't mean that there isn't a
responsibility to do the best thing. He doesn't want to exclude
perpetrators on an age-basis. He wants to send a clear signal to
citizens that they have a good Samaritan kind of responsibility to
help out. If a person intervened and stopped a crime in process,
that would accomplish his goal of rescuing the victim. But, if a
crime was precipitated in a person's presence, it rises to the
seriousness of kidnapping, rape and murder, and that person has the
responsibility to report the crime. He suspects that this would
very seldomly be enforced. He suspects it would be enforced for
the very flagrant cases like in Nevada or New York. There may be
people out there who have observed a crime and didn't report it,
and society has a right to know. The bill puts in code a societal
responsibility to be a good citizen, and tries to stop evil from
happening. He also hopes that reporting a crime would cut down on
the recidivism rate, particularly for crimes against children
because folks who get into that tend to like it and there is often
more than one victim.
Number 2179
CHAIRMAN KOTT asked Ms. Carpeneti whether a mother would have to
report a crime of sexual assault by her husband that her daughter
confessed to her.
MS. CARPENETI replied the term "witnesses" signifies being in the
presence of the offense or close enough to hear it. The Senate
bill says "witnesses or has actual knowledge of the crime." The
term "witnesses" would avoid criminal responsibility of a mother if
she learns later from her child of the crime. Under endangering
the welfare of a child Act, that the legislature adopted last year,
that mother could not leave the child again [with the perpetrator]
and escape criminal charges if the child is sexually assaulted or
abused again.
Number 2247
REPRESENTATIVE DYSON said he wouldn't object to deleting the
phrases, "sexual assault of a child" or "sexual abuse of a minor".
That was dealt with in HB 375 last year.
Number 2262
REPRESENTATIVE JAMES said she is extremely concerned about the
broadness of this bill. She understands the concerns, but she also
understands that "you cannot make a perfect world." The more the
legislature tries to make this a perfect world the more government
is built in, which is distressing to her. It is difficult to
believe that she wouldn't report a crime, except in the case of two
people observing a crime and one of them is the mother of the
victim. In that scenario, she believes it's the responsibility of
the mother to report the crime, and she hopes that there would be
other choices for that mother. She is concerned about exacerbating
the complications for the mother and the child if the second person
who witnessed the crime reported it and the mother didn't in that
same scenario. In addition, if a perpetrator is a "big, bad
hombre" a person might take caution and notice of that person's
protection before reporting a crime. She wants to see a new
drafting of the bill encompassing some of the concerns discussed
today. She's not pleased with how it is written now.
Number 2364
REPRESENTATIVE MURKOWSKI referred to the language, "assault
punishable as a felony", and cited a scenario whereby a witness saw
a fight outside a hub bar but didn't report it, and one of the
persons involved ended up dead. It is an issue of timing. At what
point does a person intervene? she asked.
Number 2428
REPRESENTATIVE DYSON noted that a person is only guilty of
misprision if that person knows a crime is being committed. A
prosecutor would have to prove that a person knew there was a crime
being committed. It's just like slander. There has to be
malicious intent.
Number 2460
CHAIRMAN KOTT said that's not the way he reads the bill. The bill
doesn't say, "knowingly witnesses".
MS. CARPENETI said, if the statute doesn't give a culpable mental
state, the courts must read in "knowingly" under those
circumstances.
TAPE 99-22, SIDE B
Number 0001
MS. CARPENETI continued. It might not be a bad idea to clarify
culpable mental state as knowing that the act being witnessed is a
crime.
Number 0020
REPRESENTATIVE DYSON said the bill sends a message of
responsibility in helping a child who is either being raped, killed
or kidnaped, if a person witnesses it. The only other choice is
the status quo, which is utterly unacceptable.
Number 0055
CHAIRMAN KOTT noted that all the committee members agree with
Representative Dyson, according to their comments. The committee
members are just trying to make the bill clear and concise for a
defense.
Number 0067
REPRESENTATIVE GREEN cited a scenario whereby a perpetrator
threatens both a witness and the victim for reporting an crime, but
the victim eventually reports it. He asked whether either or both
of them are liable of a class C felony.
MS. CARPENETI replied she thinks so. It could probably be argued
that this doesn't include a victim's responsibility to report [a
crime], but it needs to be made clear. In addition, the felonious
assault needs to be considered and possibly...
Number 0138
REPRESENTATIVE CROFT interjected and stated, under American theory
of liberty, the government only has the right to stop a person from
conduct that harms another. "If we're to retain any bit of
liberty, I have the ability to walk through without impacting, but
without corresponding obligations, that you're making a fundamental
change in an American, possibly English, but now largely American
idea of liberty that I didn't cause that, I did nothing to aid it,
but I'm not gonna do nothing to stop it. And, where do you get off
telling me I have to?"
Number 0176
REPRESENTATIVE DYSON replied it is the same argument of leaving a
burning building without saying anything and everybody burned to
death. He reiterated this bill is for a crime against a child. A
child is not a fully responsible person, and adults have an extra
responsibility to look out for their welfare. Children are on a
continuum from complete self-dependence to complete dependance.
This bill follows along that tradition. It is also why he chose
not to include adults, even though his heart is there as well.
Number 0216
REPRESENTATIVE KERTTULA said she is concerned about legislating
good and evil. In addition, from all her years of practicing
criminal law, she didn't even know the term "misprision." She is
also concerned about problems of proof in court coupled with Fifth
Amendment issues. If a witness does not come forward and report [a
crime] and is charged, there is a circular Fifth Amendment problem.
The difference between this type of approach and the approach used
last year of not leaving a child with someone who has assaulted a
child, is that this approach will wind up in the courts with
prosecutions thrown out. That is probably the reason it is not
seen in America today. The other approach is much stronger. She
commented she looks forward to seeing the bill brought back and
noted that taking the victim out is an absolute, otherwise it's
re-victimizing the victim.
Number 0294
REPRESENTATIVE ROKEBERG asked Representative Dyson the status of
H.R.4531.
REPRESENTATIVE DYSON replied, he believes, that it has not passed
yet.
REPRESENTATIVE ROKEBERG explained H.R.4531 mandates a criminal
penalty on an individual 18 years of age or older who fails to
report to a state or local law enforcement official that the
individual has witnessed another individual engaging in sexual
abuse of a child. He wondered whether last year's bill satisfies
this requirement.
MS. CARPENETI said she is not familiar enough with H.R.4531 to
answer his question.
REPRESENTATIVE ROKEBERG commented that Representative Dyson has
indicated he would agree to remove sexual abuse from the bill.
REPRESENTATIVE DYSON said his biggest concern is getting the victim
out of the situation. Four states now have good Samaritan laws
whereby a person who fails to do what that person can to rescue a
child can be prosecuted. He will get that information to the
committee members at the next meeting.
Number 0392
REPRESENTATIVE KERTTULA asked Ms. Carpeneti whether most of those
types of situations get prosecuted as accomplice liability. That
has been her experience. If there was any furtherance, a person
would be an accomplice after the fact.
Number 0412
MS. CARPENETI reiterated this is not a common occurrence in Alaska,
which is why when she saw the bill she asked the district attorneys
whether or not they have seen situations like this. When there is
any aid on behalf of a defendant, there is a charge of hindering
prosecution or accomplice liability if there is evidence of helping
in the commission of a crime.
Number 0436
REPRESENTATIVE GREEN noted that during a children's caucus he heard
from three victims who noted that this is not an uncommon situation
in Alaska, and these were not necessarily Native types. At least
one of the victims was Caucasian.
MS. CARPENETI replied she was talking about stranger-type offenses.
She wasn't talking about parental knowledge of child abuse, for
example. She has heard that there are a lot of situations where
one parent is aware of something going on with her husband or
boyfriend, but those situations are covered under endangering the
welfare of a child statute.
Number 0506
REPRESENTATIVE GREEN asked Ms. Carpeneti whether there is anything
in federal law that deals with misprision or something like it.
MS. CARPENETI replied misprision laws were common about a century
ago. They have fallen into disuse for the reasons discussed today.
It is hard to legislate decent behavior.
Number 0533
REPRESENTATIVE GREEN asked Ms. Carpeneti how the four states, that
Representative Dyson referred to, are getting around these types of
questions.
MS. CARPENETI deferred the question to Representative Dyson.
REPRESENTATIVE DYSON said he doesn't know. He will find out.
Number 0556
CHAIRMAN KOTT opened the meeting up to public testimony.
Number 0568
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
from Anchorage. In the 1980's, when the legislature adopted the
criminal code, it decided to have a very broadly written hindering
prosecution law to cover situations like the one in Nevada. He
enjoyed hearing the argument of the Fifth Amendment from the
students who testified earlier. Even if the law was passed, a
person still has the right not to report [a crime] even if that
person was involved. The courts have interpreted the Fifth
Amendment so that a person does not have an affirmative duty to
come forward if there is a reasonable possibility that he might be
prosecuted and he has the right to remain silent. "So, you have
kind of a strange situation. If you were in cahoots at all with
the person who did this, you would be privileged. If you don't
have any criminal liability, if you're pure as the driven snow, you
do have--you are--you run the risk of being charged with a felony
or misdemeanor under the way it's amended in the Senate." In
addition, if a person doesn't immediately report [a crime] perhaps
that person would have a further Fifth Amendment privilege with
this statute. In other words, "Oh my God, I didn't immediately
report it. Do I have to report it now? No, that could mean I'd be
liable for a charge if I did." He also noted that he believes the
federal misprision has not been repealed, but has gone to the
hindering prosecution route as a way to deal with these types of
situations.
Number 0773
CHAIRMAN KOTT declared, based on what he has heard today, there are
some problematic issues that need to be addressed. He assigned the
bill to a subcommittee consisting of himself, Representative Dyson
and Ms. Carpeneti. The subcommittee will try to bring something
back to the full committee tomorrow.
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