Legislature(1999 - 2000)
04/14/1999 01:20 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 99 - SEXUAL ASSAULT: VICTIM IN STATE CUSTODY CHAIRMAN KOTT announced the next order of business is HB 99, "An Act relating to sexual assault and the definitions of 'sexual contact,' 'sexual penetration,' and 'legal guardian' in AS 11." Number 0746 MARGOT KNUTH, Assistant Attorney General, Office of the Commissioner-Juneau, Department of Corrections (DOC), came before the committee to testify. She explained that HB 99 would make it a criminal felony for a correctional officer to either engage in sexual penetration or sexual contact with an inmate. There is a misperception among the rest of the states that Alaska already prohibits this conduct, but it does not, which puts Alaska in a handful of jurisdictions that have not done so. There is a resolution that all states should prohibit this conduct, from January 17, 1999, by the Association of State Correctional Administrators, which had unanimous consent; 38 in favor and zero opposed. There is also a congressional measure that was introduced this session that would reduce a state's eligibility for sharing of federal funds, if they do not have a provision like this as a part of their criminal code. She feels that prohibiting such conduct is good public policy, because there can be no such thing as consensual sex with an inmate. There would always be a disparity in power positions between a correctional officer and an inmate. Often times, inmates feel that there may be benefits or favors if they have sex with a correctional officer. The inmates also feel that they would not be believed if they report an incident. MS. KNUTH further stated that Alaska does not have a significant problem with this type of conduct, except for on rare occasions. The bill is more of a preventative measure, for good public policy, and to keep Alaska from jeopardizing any federal revenue sharing. Number 0963 REPRESENTATIVE GREEN wondered whether the states that have gone from not having it as a penalty to having it as a penalty have experienced any inmates claiming misconduct based solely on the fact that they didn't like a correctional officer. MS. KNUTH responded that the circumstance Representative Green is referring to has not occurred. REPRESENTATIVE ROKEBERG wondered whether Ms. Knuth was informing the committee that the legislature did not act after the Wionna Fletcher incident. Number 1066 MS. KNUTH stated that consensual sexual relations are not criminalized in Alaska currently. REPRESENTATIVE ROKEBERG asked Ms. Knuth whether nonconsensual sexual relations are criminal in Alaska. MS. KNUTH replied that sexual assault in the first, second, and third degrees would all apply against nonconsensual sexual contact. REPRESENTATIVE ROKEBERG wondered whether the bill really speaks to consensual sexual relations. MS. KNUTH replied it speaks to reportedly consensual relations. REPRESENTATIVE ROKEBERG referred to page 1, line 12, of the bill, where it states, "or other placement designated by the commissioner of the Department of Corrections," and asked Ms. Knuth whether that would include an employee of a community residential center (CRC). Number 1139 MS. KNUTH replied she believes it would extend to CRC placements. REPRESENTATIVE ROKEBERG requested clarification on whether a CRC facility is by definition a state correctional facility. MS. KNUTH clarified that it is. REPRESENTATIVE ROKEBERG wondered whether "other placement" was a catch-all term in case the offender was someplace else. MS. KNUTH responded that the language in the bill is the same language that is used in the statute referencing where prisoners can be placed. That is why it was chosen when drafting it. She noted that she would be willing to find that information for him. REPRESENTATIVE ROKEBERG indicated that he just wanted to make sure that the other contracted placements were included. MS. KNUTH replied that they are. Number 1213 REPRESENTATIVE ROKEBERG referred to page 2, Section 3, paragraph (3), where it states, "other person committed to the custody of the Department of Health and Social Services under AS 47.10 or AS 47.12," and asked whether he is correct in assuming that the language refers to juvenile correction facilities. MS. KNUTH responded that is correct. She noted that Robert Buttcane from the Department of Health and Social Services (DHSS) is here to speak on behalf of the department. The DHSS and DOC are trying to make sure that the provisions are parallel so that the same protection afforded to adults who are in custody is also afforded to juveniles who are in the state's custody. REPRESENTATIVE ROKEBERG wondered whether the juvenile correction facilities are limited to 19 years of age. MS. KNUTH deferred the question to the Department of Health and Social Services. Number 1305 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), Department of Public Safety, came before the committee to testify. She stated that the network supports the concept of HB 99, but they are concerned that it is limited to third-degree sexual assault. Sexual penetration is a first-degree offense. It is particularly troublesome to believe that someone with authority over a person may only be able to be charged with third-degree sexual assault when other people would be charged with first-degree sexual assault. The network understands that there is the issue of consent; however, as Ms. Knuth previously stated, people in authority negate a prisoner's ability to give consent. The network would appreciate the committee looking at ways to ensure that sexual assault and sexual penetration are able to be prosecuted to the fullest extent the law allows, which would be first-degree assault. The network believes that there may be space to amend the sexual assault statute in the first degree in the area where there are a couple of elements in the statute, before the authority element, that are coupled with mental incapacity. MS. HUGONIN concluded that the network appreciates the efforts of the Department of Corrections and believes that HB 99 is the right way to go, but they want to make sure that a correctional officer's liability is not limited to only third-degree assault. Number 1400 CHAIRMAN KOTT asked Ms. Hugonin whether she would suggest that a higher category, such as first-degree assault, be applied to the part of the statute that deals with people who are mentally incapable or incapacitated. MS. HUGONIN replied it is her understanding that it is first-degree assault when there is an authority figure involved. It is sexual penetration that the network is concerned about. REPRESENTATIVE CROFT pointed out that, right now, it is first-degree assault for sexual penetration with a person who is mentally incapable and under someone's care, and second-degree assault for sexual contact with a person who is mentally incapable and under someone's care, that being the offending party. He wondered whether that distinction would make sense because of the mental incapacity element. He stated that Ms. Hugonin has touched on the care element and the authority element, but not the incapacity element. MS. HUGONIN stated if someone is in a position of authority over another person then that person is not going to be able to give consent, whether or not they have all their faculties is a mute point. If someone has sexual penetration with a person and there is an authority element involved, that should be considered first-degree sexual assault. Number 1508 REPRESENTATIVE CROFT wondered whether the line that says, "mentally incapable", should be taken out. MS. HUGONIN indicated that she would not take it out because there might be other circumstances where that needs to be specified. She feels that there is a way to have the authority of a correctional officer designated in the first degree. As it is now, doctors who engage in sexual penetration with their patients are designated in the first degree, so correctional officers could be put in a category where they are held to a standard of not engaging in sexual penetration with people they have authority over. REPRESENTATIVE CROFT explained, in the doctor example, the patient is unaware that a sexual act is being committed. The difference is between sexual assault in the first degree, which is an unclassified felony. He asked whether it is Ms. Hugonin's opinion that a consensual act should be an unclassified felony, rather than a class B felony. MR. HUGONIN replied yes. Correctional officers should not be held to a lesser standard than the general population, and since they are in a position of authority they should be held to the same if not higher standard. Another way to put the question would be, if a correctional officer commits sexual assault against an inmate, would there be a hesitancy? It would be more difficult to prosecute them for first-degree assault, due to the fact it states in statute that they are suppose to be prosecuted under third-degree because of sexual penetration. She stated that this is what the network does not want to have happen. Number 1640 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, came before the committee to testify. He is here in support of the bill. The delinquency statutes allow juvenile offenders up through the age of 19 to be in the juvenile justice system. Most of those young offenders are held in the youth facility treatment programs. As a result, there are adults who are still within the delinquency system. The current statutes do not speak to sexual contact between department employees and those who have reached the age of majority. This bill fixes that problem. As Ms. Knuth indicated, it hasn't been a crime before, but it is conduct that the department would not condone or approve. This bill fixes that omission or hole in the current statute and practice in relation to the delinquency system. He is not aware of this being a problem within the juvenile system; this is not a response to an incident that has occurred, but it clearly communicates that this is the standard expected in taking responsibility for older juvenile offenders. Number 1740 REPRESENTATIVE GREEN asked Mr. Buttcane to comment on the penalty being elevated. MR. BUTTCANE deferred the question to the Department of Law. He thinks that a fiscal note would come into play if the penalty is elevated. REPRESENTATIVE GREEN asked Mr. Buttcane to comment on the penalty being elevated from a non-fiscal point of view. MR. BUTTCANE replied he is comfortable with the current status of the penalty. He sees a difference between an 18-year-old and someone who is mentally incapacitated. An 18-year-old can make a reasonable decision about engaging in sexual contact with someone else. It is inappropriate if that person happens to be a youth counselor or correctional officer, which is what the bill speaks to. But, they are adults and are forwarded the benefit of being able to make reasoned decisions and sexual behavior is one of those decisions that comes with the age of majority. He personally believes making that decision an unclassified felony is excessive. He declared that is his opinion, however, and not the department's. Number 1814 REPRESENTATIVE GREEN asked Mr. Buttcane whether it should still be third-degree assault in the case of coercion or adverse influence from a person in authority. MR. BUTTCANE replied the level of coercion certainly elevates the severity of the offense. The current law allows for a more severe response for nonconsensual sexual contact. An unbalanced authority is inherent in a relationship between a correctional officer with a person in custody which warrants a felony level sexual assault with or without consent. But, if there is any degree of nonconsent, the penalty needs to be more severe. Number 1891 REPRESENTATIVE GREEN asked Mr. Buttcane whether he feels that a correctional officer should be held to a higher accountability, otherwise a negative message is being sent to the person trying to be rehabilitated. He said he didn't expect an answer; it was more of a statement. Number 1930 REPRESENTATIVE KERTTULA stated she is concerned about the degree of offense because of the authority over the person in custody. It's not consensual under those circumstances. She asked Mr. Buttcane, for clarification, whether sexual assault in the first degree is for truly incapacitated people. MR. BUTTCANE deferred the question to the Department of Law. Number 1963 REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether the magic number is 20 years of age at which point a person is released or dealt with by the Department of Corrections. MR. BUTTCANE replied the jurisdiction of the juvenile system must terminate on a person's twentieth birthday. At that point, the case is closed, and there is no mechanism to transfer that individual to an adult system. Number 1999 REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether individuals who are developmentally disabled who are placed under the definition of a legal guardian could go beyond the age of 19 sometimes. MR. BUTTCANE replied yes a person of any mental capacity could be in the juvenile system up to the twentieth birthday. REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether the definition of "legal guardian" is specific to those individuals under AS 47.10 or AS 47.12. MR. BUTTCANE replied yes. REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether any other person in custodial control would be defined in another part of the statute. MR. BUTTCANE replied yes. Title 47.10 and 47.12 are specific to children in need of aid and delinquent youths. The youths who are involved with mental health and developmental disabilities fall under a different authority. Number 2064 REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether there are folks over 20 years of ago who are in custodial care who might find themselves in this circumstance because of their disability and still need the protection of the statute. MR. BUTTCANE replied yes. He doesn't know whether that circumstance would be covered under existing law, however. He deferred the question to the Department of Law. Number 2312 CHAIRMAN KOTT asked Ms. Knuth, if there was a correctional officer who had sexual contact or penetration with an inmate, could that officer be prosecuted under sexual assault in the first degree. Number 2132 MS. KNUTH replied only if the act was proven to be nonconsensual. The Department of Law engaged in lengthy discussions on the level of penalty for this type of offense. The analysis looked first at a lack of consent, then it looked at a lack of capacity or unawareness. This is a step below that and the inappropriateness is the position of authority of a correctional officer. There isn't another circumstance in law that criminalizes consensual, knowing sexual activity between adults. All of the current criminal penalties involve underage, nonconsent, or incapacitated in some fashion. MS. KNUTH further stated, in reference to Representative Rokeberg's questions, she believes a developmentally disabled individual is already covered under the law. The law prohibits someone who is entrusted with authority from engaging in sexual contact or penetration with somebody who is incapable of giving meaningful consent. The question is, do you want to say the power disparity between a correctional officer and a prisoner makes it the same as a lack of capacity due to alcohol, for example? In terms of the standards that the court uses in looking at equal protection, she has confidence that the supreme court could see the differences. But, in terms of a policy decision and where the crime should fit, it is an issue that reasonable people can come to different conclusions on. She thinks that it shouldn't be an unclassified felony because it is so severe that it would have a chilling effect on prosecutions. She noted the chances of a conviction go up for a class B or class C felony. Number 2350 REPRESENTATIVE CROFT said there isn't consent for first-degree sexual assault because the person doesn't understand what is happening, or the person doesn't know what is happening. He cited a doctor's examination as an example. In that case, there is a situation where the consent is questionable because of the power relationship. He thinks it is appropriate that it is one step lower. Number 2401 REPRESENTATIVE GREEN asked Ms. Knuth whether she knows the penalties in other jurisdictions. MR. KNUTH replied she has a 50-state survey, but she has not analyzed it for that particular question. They are pretty much all over the board - class A misdemeanor, class C felony, class D felony, etc. She has not seen a jurisdiction give it the most serious level, however. TAPE 99-30, SIDE B Number 0013 REPRESENTATIVE ROKEBERG said a mentally incapable person, by not including them, can give consent. MS. KNUTH said it depends on whether that person is found to be able to consent. There is a continuum of developmental disabilities. If someone was found to be able to give consent, then it would not be covered by existing law. Number 0031 REPRESENTATIVE ROKEBERG replied, "And, rightfully so." He wants to give consideration for choices to be made. Number 0048 CHAIRMAN KOTT closed the meeting to public testimony, and asked the committee members to discuss the level of penalty for these situations. Number 0059 REPRESENTATIVE CROFT stated it is arguable whether it's one or two levels below. Sexual assault in the second degree includes penetration of an individual who the offender knows is mentally incapable, incapacitated, or unaware that a sexual act is being committed. That was elevated for the doctor situations. The bill talks about third-degree assault for sexual penetration and fourth-degree assault for contact. He thinks that this should be punishable conduct, but he is worried about punishing it excessively. Number 0126 REPRESENTATIVE GREEN stated the doctor situations are in a different setting, and an incarceration officer is also in a unique setting. He believed it should be held to a higher standard making it more akin to someone who can respond logically. It isn't a run-of-the mill situation. It's not quite to the extent of the doctor situation, but it should be higher than the norm. Number 0170 REPRESENTATIVE MURKOWSKI stated, because of the power situation between an inmate and a correctional officer, there is duress that makes consent a completely separate issue. Number 0197 REPRESENTATIVE ROKEBERG stated there are circumstances where there wouldn't be any duress whatsoever. If it is raised to one more level, it would go from zero to two years to ... Number 0240 REPRESENTATIVE CROFT interjected that the testimony seems to indicate that this is an inherently coercive situation, and only in rare instances would it be truly consensual. The bill is taking consent out of the equation for those rare cases; and, as a result, there would be no defense for them. Number 0281 REPRESENTATIVE ROKEBERG stated the position of authority in essence raises it to destructive, statutory rape. A fact-pattern wouldn't come into play, if the level is raised, when there could be exceptions. In those cases, a judge wouldn't have any discretion. Number 0305 MR. KNUTH noted that the maximum for a class C felony is five years. The benchmark is 90 days to 6 months. The maximum for a class B felony is 10 years. The benchmark for a first offender is around two years. The maximum for a class A felony is 20 years with a natural presumptive sentence of 5 to 7 years. Number 0328 REPRESENTATIVE GREEN stated this is still unappropriate behavior, even for the rare cases where there is consent. The fact that this is a situation preparing a person for rehabilitation, he thinks, it should be raised to let people know it will not be tolerated. Number 0369 CHAIRMAN KOTT stated that a person guilty of this type of offense would be terminated, which would hopefully be some deterrent. Number 0377 REPRESENTATIVE ROKEBERG said a felony whether it's class B or C has a downside in terms of punishment. The circumstance here would limit discretion by the judicial branch making the judgments. He also noted that there is an upside of a five-year differential by making a distinction. The benchmarks are significantly different by about one and a half years of minimum time. A person suffers significantly, even if there is true consent. He agrees with the law and its need, but is concerned about going too far because there may be circumstances where there is a difference. Number 0431 REPRESENTATIVE GREEN stated, based on testimony from Ms. Knuth, it would be more than a first-time offense. If a person doesn't get the message the first time, then five more years is appropriate. Number 0449 REPRESENTATIVE ROKEBERG stated this type of fact-pattern would get into a "he said-she said" situation of credibility, and taking that away makes a huge difference. The person would either be in a class C felony or in an unclassified felony. There is also the circumstance of which is easier to corroborate - a class C felony; an unclassified felony; to press a prosecution, if it is a higher felony; or to get more convictions, as it should be, with a lower punishment. He doesn't know how to balance that, but it is a factor that needs to be considered. Number 0500 REPRESENTATIVE KERTTULA expressed concerned about the prosecution. This is an inherently nonconsensual situation. She is concerned about this happening in correctional facilities. She tends to like the idea, especially because penetration would be a higher sentence, but she is troubled by raising it too high. The bill takes the first step in criminalizing something that has an element of consent, even though it is inherently nonconsensual. Number 0541 CHAIRMAN KOTT stated he is concerned because this really isn't a problem in Alaska. He would like to see a person at least go before the courts for prosecution, even in those rare situations. Number 0557 REPRESENTATIVE CROFT stated this is the first time that consensual sex between adults, where they know the character of the act, would be criminalized. In all the other situations, either they couldn't consent because of age or mental capacity or didn't know what was going on. He agrees that the element of consent is troublesome, but arguably a sexual act between two adults could be criminalized. It's a whole new area. It's proper under the bill, but the level should be carefully considered. Number 0611 CHAIRMAN KOTT noted this is the first time that the legislature has traveled down this path. Number 0616 REPRESENTATIVE ROKEBERG asked how many committee members have been to the Highland Mountain Correctional Center. He noted it would be difficult to find the space and privacy to "do it" there. Number 0642 REPRESENTATIVE KERTTULA stated the only reason she is not going to offer an amendment is because she has worked with enough prosecutors and believes that they would charge the higher crime, if there is any element of nonconsent. She noted that it is an ethical violation for an attorney to have sex with a client, so think how worse it is for a correctional officer who has control over a person's daily life... Number 0702 REPRESENTATIVE ROKEBERG made a motion to move HB 99 from the committee with individual recommendations and the attached fiscal note(s). There being no objection, HB 99 was so moved from the House Judiciary Standing Committee. Number 0737 CHAIRMAN KOTT called for a brief at-ease at 2:25 p.m. and called the meeting back to order at 2:31 p.m.
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