Legislature(1999 - 2000)
04/08/1999 01:20 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 34 - REPORTING CRIMES AGAINST CHILDREN
CHAIRMAN KOTT announced that the next order of business is HB 34,
"An Act relating to the crime of misprision of a crime against a
child."
Number 0369
REPRESENTATIVE GREEN moved to adopt the proposed committee
substitute for HB 34, Version LS0241\D, Luckhaupt, 4/8/99, as the
working document before the committee. There being no objection,
it was so ordered.
JERRY LUCKHAUPT, Legislative Legal Counsel, Legislative Legal and
Research Services, Legislative Affairs Agency, informed the
committee that the proposed committee substitute was developed with
Representative Dyson's office as well as the Department of Law.
Mr. Luckhaupt explained that the proposed committee substitute
changes the name of the offense from misprision of felony to the
failure to report the kidnapping or murder of a child. This would
apply to murder, attempted murder, kidnapping or attempted
kidnapping. If a person witnesses one of those crimes committed
against a person under the age of 18, the person must report the
crime to the police in a timely manner or the person must come to
the aid of the individual. Mr. Luckhaupt noted, "If you cannot
timely report or you can't come to the aid immediately of the
person, then you have an affirmative defense if you can't do so
safely and without jeopardy to yourself." He further noted that
the penalty is reduced to a class A misdemeanor.
CHAIRMAN KOTT referred to page 2, line 1 which states, "immediately
come to the aid of the child." Chairman Kott recalled that in the
incident in Nevada, a person peered over the restroom stall and
told the perpetrator to stop and then left. Would that be
considered immediately coming to the child's aid?
MR. LUCKHAUPT stated that question is one that he had not entirely
satisfied in his own mind yet.
Number 0502
REPRESENTATIVE DYSON, Sponsor of HB 34, Alaska State Legislature,
informed the committee that he had discussed this issue with Anne
Carpeneti, Assistant Attorney General, Criminal Division,
Department of Law. Perhaps, that language should be further
defined if it poses a problem. He suggested inserting the
language, "rescue" or "attempt to rescue."
MR. LUCKHAUPT said that "rescue" would imply that there is an
attempt to remove the person from the dangerous situation. Mr.
Luckhaupt assumed that coming to the aid of a child meant more than
merely telling someone to stop. Since no definition is provided,
the definition will be subject to whoever wins the argument of the
case. Mr. Luckhaupt pointed out this is referring to the minimal
end of satisfying the statutory requirements.
CHAIRMAN KOTT inquired as to the net result of deleting the "or" on
page 1, line 14, and inserting "and".
MR. LUCKHAUPT explained that such a change would impose a duty for
people to not only report, but also come to the aid of the child
which would be broader.
CHAIRMAN KOTT stated, "Without that in there, you could come to the
aid, but not necessarily be required to report."
REPRESENTATIVE DYSON commented that he liked that solution, but
suggested using "and or" language.
Number 0697
REPRESENTATIVE CROFT stated that the "or" language is appropriate
because it allows an individual to report a crime if the person,
perhaps an elderly woman, and be in compliance without having to
come to the aid. The "or" language also allows a person to come to
the aid of the child and be in compliance without having to report
the crime. Representative Croft expressed concern with the "and"
language on page 2, line 3, and suggested that "and" be deleted and
"or" inserted.
REPRESENTATIVE GREEN posed the following situation. If
Representative Green came across a situation in which a person is
seriously injured, but Representative Green made a mistake; would
this language increase Representative Green's liability?
REPRESENTATIVE DYSON pointed out that people coming to the aid in
such a situation would be covered under the Good Samaritan Act. If
one makes a good faith effort to assist someone in danger or
injured, that person would be covered.
REPRESENTATIVE GREEN said that he understood that in the context of
voluntarily taking action, however this language says that the
person would be required to take action.
Number 0808
MR. LUCKHAUPT clarified that under this legislation a person would
be required to notify the police or come to the aid of the person.
The Good Samaritan Act discusses the distinction between those
persons paid to come to the aid and those who are not paid. If you
are a person who is paid to perform a service, then that person
would not fall under the Good Samaritan Act. If a person
voluntarily comes to someone's aid, that person would be covered by
the Good Samaritan Act to the extent of their training.
REPRESENTATIVE CROFT clarified that if HB 34 creates a preexisting
duty, then would the person not be under the Good Samaritan Act.
He indicated that the police officer should still respond
responsibly, but the citizen being forced to aid would be given
more discretion.
MR. LUCKHAUPT informed the committee that the immunity is provided
by AS 09.65.090 (a) which refers to, "A person at a hospital or any
other location who renders emergency care or emergency counseling
to an injured, ill, or emotionally distraught person...."
Therefore, coming to someone's aid to stop an assault would not be
providing first aid to the person. Mr. Luckhaupt further pointed
out that there is a distinction in AS 09.65.090 (b) which states,
"A member of an organization that exists for the purpose of
providing emergency services...." If such a person is paid for the
services, that person would not be covered under the Good Samaritan
Act. Mr. Luckhaupt stated that Alaska's statute does not look to
whether one has duty to provide care to that person. If one were
to provide emergency care to a person in need, the person rendering
assistance would be covered.
Number 1027
REPRESENTATIVE GREEN commented that the question would be regarding
how far one would be compelled or required to go.
MR. LUCKHAUPT informed the committee of an early 1960's case in
Alaska which discussed police officers having the duty to rescue.
A police officer stopped for coffee on the Alaska Highway where he
came across a child who had been grabbed by a caged bear. In the
process of trying to shoot the bear, the officer shot the child.
The supreme court found that the trooper had a duty to do
everything possible to rescue the child. The trooper was immune
for those actions, as long as the actions were taken reasonably
which the court found. If there is a statute that requires one to
report a crime or come to the aid of a child in that crime, he did
not necessarily see that there is a preexisting legal duty to
render legal aid to that person. Mr. Luckhaupt stated that there
is a legal duty to report or come to the aid as the person sees
fit. This is a discretionary duty, one is not required to come to
the aid of the person by statute because there is an option. He
did not see a problem with HB 34 in regards to the Good Samaritan
Act. Mr. Luckhaupt pointed out that if the committee so desires,
immunity for persons coming to the aid could be provided.
REPRESENTATIVE DYSON clarified that HB 34 only refers to children
who are being kidnaped or murdered. He wondered if the language on
page 2, line 1 which reads, "come to the aid of the child" could be
changed to "act to stop or prevent the crime in progress."
Representative Dyson said that was what he really desired.
REPRESENTATIVE GREEN commented that would be a good approach.
REPRESENTATIVE MURKOWSKI noted that there is an affirmative defense
to this if the person reasonably believes he/she would be placed in
substantial risk of physical injury. However, that refers only to
the defendant. "What happens if you reasonably believe, that by
reporting this, that little girl who has been kidnaped is going to
be killed? ... Can that be a reasonable affirmative defense, if you
think that there is going to be further harm to the victim, not
just as to the defendant?" She indicated this could be a
legitimate issue in a kidnapping situation.
REPRESENTATIVE DYSON indicated agreement that in a kidnapping
situation with ransom, parents are left to wonder if they should
involve the police. Representative Dyson said that he would be
open to inserting language indicating that it would be a positive
defense to be both afraid for your own life as well as possibly
increasing the risk of the victim.
CHAIRMAN KOTT suggested on page 2, line 5, after "defendant",
insert "and or another".
REPRESENTATIVE DYSON noted that in Minnesota law the language
"without danger or peril to self or others" was added.
Number 1444
CHAIRMAN KOTT offered Amendment 1 which reads as follows:
Page 2, line 5 after "defendant"
Insert "or others"
There being no objection, Amendment 1 was conceptually adopted.
CHAIRMAN KOTT pointed out that HB 34 originally required reporting,
but has been expanded to coming to the aid. He asked if it was the
intent of the sponsor for one to come to the aid of someone without
requiring the crime be reported.
REPRESENTATIVE DYSON specified that it was his intention to
encourage people to act to prevent the crime and if that is not an
appropriate option for those reasons already discussed, the second
option is to report the crime.
CHAIRMAN KOTT asked if the desire is to prioritize aid to the child
and if not feasible, then report the crime in a reasonable manner.
REPRESENTATIVE DYSON said that it was not his intention to
prioritize, but to provide an option to the individual.
Representative Dyson did not want to place an individual in
jeopardy of prosecution for not choosing the priority someone else
would have chosen.
REPRESENTATIVE ROKEBERG mentioned a New York Case, where if there
is a statutory mandate to aid, then the issue of what level of
physical force can be utilized is brought into question. Care must
be taken with a statutory mandate to aid.
Number 1677
REPRESENTATIVE KERTTULA appreciated the intent of the legislation,
but subsection (b) on page 2 could create problems as mentioned by
Representative Rokeberg. She believed including affirmative
defenses would problematic. Representative Kerttula supported
cleaning up the failure to report rather than including the aid
portion in this legislation.
REPRESENTATIVE DYSON inquired as to whether Representative Kerttula
would feel more comfortable with the language, "act to stop a crime
in progress" versus "aid".
REPRESENTATIVE KERTTULA stated that it is problematic all together.
She reiterated that limiting the legislation to the failure to
report issue could be addressed cleanly. In response to Chairman
Kott, Representative Kerttula pointed out that even with the
language "to reasonably act to stop or prevent the crime in
progress", many questions remain. She said that questions such as
what is reasonable, what is the degree of aid, what is immediate,
and what is substantial risk remain.
Number 1858
BLAIR MCCUNE, Deputy Director, Public Defenders Agency, testified
via teleconference from Anchorage. He informed the committee that
he did not have the proposed committee substitute before him. Mr.
McCune believed this to be a difficult question because it
attempts to achieve a level of moral behavior to which people are
held accountable. Mr. McCune said, "I frankly, have problems with
this entire area. I think the model penial code, when they
thought--what they did was, you know, you don't have the duty to
report, you don't have the duty to come to the aid, but if you're
not--if you're in any way rendering assistance to someone who's
committing a crime and had that rendering assistance very broadly
defined, you get at 99 percent of these problems."
REPRESENTATIVE CROFT inquired as to when an individual would know
when a crime is occurring. If someone jumped into a movie set and
attempted to prevent a child's murder and someone was seriously
harmed, what happens. Representative Croft posed many examples of
situations in which it would be difficult to determine whether a
crime was occurring or not. Representative Croft stated that the
risk must be allocated one way or another. Either the individual
must take action and the risk that the individual may be wrong lies
with that individual or the individual must take the action and
others must bear the risk that the individual acts erroneously.
REPRESENTATIVE DYSON stated that this will only be used in flagrant
cases. When police arrive at the scene with a dead body, the
police are going to look for the perpetrator. If there was someone
present who could have presented the crime and did not, would this
be used. Representative Dyson feared that all these "what if"
scenarios could be problematic. The current situation is
intolerable. Representative Dyson reiterated that the individual
has the responsibility to "pick up the whistle and blow it."
REPRESENTATIVE ROKEBERG indicated that an individual who is an
accessory to a crime would have a defense due to this legislation.
The accessory could say that he/she did not report the crime
because he/she felt it would place him/her in harms way. Would a
defense attorney use such?
TAPE 99-25, SIDE A
Number 0013
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, believed that the legislation is problematic
with regards to the word "aid" and the need for a definition of
that language. Under this legislation, Ms. Carpeneti believed that
in the Nevada situation the individual who told the person
committing the crime to stop would have been considered aiding the
victim and therefore, excused from reporting the crime. Ms.
Carpeneti stated that this legislation does not resolve the problem
of discouraging witnesses from reporting in a timely manner from
ever reporting. If such a witness were ever found, immunity,
although problematic, could be offered. Immunized testimony is not
very good testimony and juries are instructed to look at such
testimony with caution and distrust. Ms. Carpeneti suggested that
if the desire is to make this work for the prosecution, then making
the bill only speak to reporting would be appropriate.
CHAIRMAN KOTT said that reporting a crime at a time specific is
very circular. He believed that some form of prosecutorial
discretion would be afforded in cases in which a person reported a
crime two weeks later.
MS. CARPENETI agreed, but noted that the problem is then that there
is a witness that has not been prosecuted, but the witness is
subject to cross examination on that issue which lessens the
impact.
REPRESENTATIVE CROFT said there will be prosecutorial discretion,
but legislation should be written to do what is intended and no
more. Criminalize what is intended and nothing more.
CHAIRMAN KOTT agreed, but was unsure as to how to deal with the
dilemma surrounding what circumstances would warrant reporting a
particular crime two weeks after the fact.
REPRESENTATIVE MURKOWSKI mentioned that the Y2K legislation allowed
"wiggle room" and therefore, intent language was included in that
legislation. Perhaps, this legislation should be restricted to the
failure to reporting the crime with some intent language.
Representative Murkowski agreed with Representative Dyson that
there should be legislation that promotes people to do the right
thing.
Number 0448
MR. LUCKHAUPT mentioned that the substantive crime could be the
failure to report and the references to coming to the aid of the
child could be removed. Furthermore, an affirmative defense could
be provided for someone who comes to the aid of the child and stops
the commission of the crime. Therefore, no one is required to come
to the aid of the child.
REPRESENTATIVE CROFT interjected and stated that could be defined
very narrowly.
REPRESENTATIVE ROKEBERG pointed out that the drafting of the
legislation could be such that discretionary language could be
utilized.
REPRESENTATIVE DYSON understood Representative Rokeberg to mean
that the rendering of aid could be an option with permissive
language, "may", while the reporting language could be mandatory.
MR. LUCKHAUPT stated that such is achieved in criminal statute by
utilizing "shall" language, in this case the failure to report
would be the crime. Furthermore, the affirmative defense would be
provided by using permissive language, "may", regarding the aid
issue which would negate criminal liability under the statute
itself.
Number 0685
REPRESENTATIVE CROFT indicated the need to ensure that the Good
Samaritan Act covers when an individual has the option to do that.
He believed it comes close, but suggested that there should be a
reference to that civil liability. He acknowledged that there is
overlap with the rendering aid and preventing a crime, however he
indicated it should be clear that the individual would be covered.
MR. LUCKHAUPT reiterated the problems with requiring someone to
act. He noted that the option for an affirmative defense is
available for acting, but people are not compelled to act.
REPRESENTATIVE CROFT pointed out that the Good Samaritan Act
returns to the question regarding what is one immunized from civil
liability from.
REPRESENTATIVE DYSON referred to discussions at the previous
hearing which recognize in law that our young are fairly helpless
and therefore, need more care and stewardship. The distinction
between children and adults is important. Representative Dyson
said that he would be glad to do more work on HB 34.
Representative Dyson informed the committee that he would like to
broaden the legislation to include rape and felonious assault. He
asked the committee for guidance on that expansion. Representative
Dyson specified that the goal is to stop a child from being hurt.
CHAIRMAN KOTT requested that Mr. Luckhaupt work with the sponsor on
the additional language in order to have the legislation before the
committee tomorrow.
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