Legislature(2001 - 2002)
04/25/2001 01:24 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 243 - VERIFY AGE REQD FOR DEFENSE IN SEX CRIMES Number 1460 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 243, "An Act relating to sexual assault or abuse of a minor." Number 1477 REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor, remarked that he considers it offensive and opportunistic for someone who molests a minor to claim that [he/she believed] the minor was of age. He opined that most such defenses are patently invented. He explained that HB 243 adds language which states that if a perpetrator is going to use that claim as a defense, he/she will have had to have done something to verify the age of the minor, such as viewing a government-issued ID card, speaking with a parent who says that the child is of age, or something along those lines. Number 1552 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), explained that the legislature has declared that having sexual relations with persons under the age of 16 is against the law and it is an even more serious offense if that person is under the age of 13. At the same time, however, it is recognized in statute - and, according to the Alaska Supreme Court, under the Alaska State Constitution as well - that defendants can try to convince the jury that they honestly and reasonably believed that the victim was over the age of sixteen. MR. GUANELI noted that it didn't used to be this way. In law school, one of the first things students learn about criminal law is how to allocate mental states and burdens of proof. He said that some of the kinds of cases discussed when he attended law school were statutory rape cases, with the question being did the state have to prove that the defendant knew that the [youth] was of a certain age. Generally, he said, the answer was no; "you run the risk, when you have sex with people who look young, that they turn out to be [too] young." Over the years, however, things have changed, and the Alaska Supreme Court now holds the position that the defendant may try to convince the jury that he/she honestly and reasonably believed that the victim was over 16. MR. GUANELI pointed out that in 1994, the Alaska Court of Appeals determined that the legislature has the ability to set some parameters on such a defense, for example, by requiring that the defendant did everything reasonably possible to ascertain the age of his/her sexual partner. He recounted that a couple of common statements used as a defense regarding a mistake as to age are: "She told me that she was over 16." and, "Her friends told me that she was over 16." Mr. Guaneli mentioned a specific case in which the defendant said that the girl, who later turned out to be 14, had told him on the Internet that she was in college. With regard to using such a defense, a recent Alaska Court of Appeals decision [State v. Fremgen] said that even if the victim is under the age of 13, the defendant could still try to prove that he/she believed the victim was much older. In this case, Mr. Guaneli noted, the defendant claimed that the girl had told him that she had had many sexual partners and had told him about sexual acts she had performed, and because of these statements, he perceived her to be old enough. Number 1755 MR. GUANELI observed that in today's society, with exposure to television (TV), movies, and music, young people are more sophisticated than in the past and are more willing to use obscene words and gestures. To allow someone to use this kind of behavior by today's youth to build the defense that he/she believed that a young person was over 16, makes a mockery of the law; HB 243 is designed to counter such claims. In addition to honestly and reasonably believing that the child was 16, HB 243 also requires that the defendant take some reasonable measures to verify it, which could include checking a driver's license or speaking with the child's parent. Mr. Guaneli recounted a case in which a man had asked to see a young girl's driver's license but when she couldn't produce one, he had sex with her anyway; such behavior indicates that although some people do think about how old someone with whom they intend to have sex is, they are still specifically preying on someone who looks young and vulnerable. MR. GUANELI relayed that in Steve v. State, the Alaska Court of Appeals said that while a person may not be able to tell exactly how old someone is by looks alone, it is still possible to tell that someone is a young teenager; accordingly, "it is fair to expect people to exercise caution when choosing a youthful sexual partner." He opined that HB 243 says that it is not enough to listen to what the young person says or what his/her friends say, or to assume that because of the child's gestures, words, or manner of dress, that the young person is of the age of consent. REPRESENTATIVE MEYER asked whether requesting proof and being shown an ID card that later proved to be fake would still be adequate for an affirmative defense. MR. GUANELI opined that it would be because the defendant made a reasonable effort to ascertain the child's age. He added that the same is true with regard to the sale of alcohol and tobacco. REPRESENTATIVE MEYER noted that it is becoming easier to manufacture fake ID cards. Number 1963 REPRESENTATIVE DYSON explained that HB 243 would only come into play when the perpetrator is using [a mistake as to age] as a defense. "What we're trying to do is cut the ground out from underneath exploitive older people who are abusing children and trying to get off using this [defense]; they've got to use reasonable care to ascertain that they are not committing a crime." If word of this legislation spreads, and people start being more responsible, he said, that would be wonderful. On another point, he noted that 30-40 percent of the children in Alaska who are being molested are male; on a national level, that percentage may be higher. REPRESENTATIVE JAMES mentioned that she did not believe that only the older person should be reprimanded in some cases; "it takes two to tango," she noted, and in some cases the young people also play a part. REPRESENTATIVE BERKOWITZ said he respectfully disagrees with the assertion that HB 243 only comes into play when the defendant uses the defense [of a mistake as to age]; it comes into play every time lawful participants "get together." He suggested that what the sponsor is essentially saying, via HB 243, is that "in order to have sex, people have to ask for their papers first"; even where it's lawful and consensual, the situation is still one of compelling honest citizens to ask for each other's papers. He opined that putting people in a position of requiring individuals to [show their papers] is a step away from the kind of free society that he supports. REPRESENTATIVE BERKOWITZ, on another point of concern, noted that HB 243 says, "reasonable measures does not include mere statements by the victim or the victim's friends". In essence, he opined, HB 243 is saying that the judgment of the legislature supplants the judgment of the jury; "we're taking away discretion from the jury," and doing so does damage to the current legal system. REPRESENTATIVE DYSON noted that, "we're talking about 15 years old and younger." He offered that there is long tradition in the western democracies that children below the age of majority are unable to make major decisions on their own behalf. Society does not want children making major decisions on their own; the child's parents should be making the major decisions. "We do that with medical care and we do that with alcohol and tobacco," he added. If Representative Berkowitz's argument is to be consistent, he suggested, then "kids ought to be able to make the decisions about alcohol and tobacco without [age] being verified." Number 2153 MR. GUANELI pointed out that in some cases in which the defense of a mistake as to age is being used, the victims are as young as 12; notwithstanding whether someone consented to the act, different rules should apply for a person who is 12, 13, 14, or 15. Alaska statutes already include a three-year range, he noted, so the provisions of HB 243 will not generally pertain to the "high school relationships" that often occur, as long as a person is within three years of age of the other person. He opined that HB 243 does not affect the jury's deliberations; it only affects the kinds of excuses that offenders can bring before juries, which, according to the Alaska Court of Appeals, is perfectly within the constitutional prerogative of the legislature. It is a policy judgment, he added. MR. GUANELI, in response to the question of why reference to victims under the age of 13 is being stricken via HB 243, reiterated that the recent court of appeals decision in State v. Fremgen said that even if the victim is under the age of 13, the defendant could still try to prove that he/she believed the victim was much older. Thus, striking the reference to victims under the age of 13 merely reflects that decision. He noted that he did not know the final outcome of that case with regard to whether the defendant has been found guilty. REPRESENTATIVE BERKOWITZ opined that adding "and (2) undertook reasonable measures to verify that the victim was that age or older" doesn't seem to change the current statute much at all given that it already says, "the defendant reasonably believed the victim to be that age or older", because this "reasonable belief" is arrived at in part by looking at the young person. CHAIR ROKEBERG noted that one change it makes is to allow an affirmative defense for sexual intercourse with a young person if the parent verifies the child's age. REPRESENTATIVE BERKOWITZ pointed out that: You don't just talk with someone and then have [sexual] contact with them. These statements are going to be in the context of physical presence. "So I ask this girl if she was old enough and she said she was, and while I was looking at her, she appeared to be [old enough]"; so therefore the statement that "reasonable measures" does not include mere statements' doesn't really lend much to the debate, because it's not a mere statement. It's a statement in conjunction with the victim's appearance, or the other circumstances. So, that "reasonable measures" section here doesn't really change the status quo. Number 2397 REPRESENTATIVE JAMES recalled that two of her foster children - one, a girl of 14, the other, a girl of 13 - had been sexually active since the ages of 11 or 12, and both looked to be at least 16 years old. She said she maintains the position that it isn't "just the guy's fault." CHAIR ROKEBERG, in opposition to Representative Berkowitz's suggestion that HB 243 does nothing, said he thinks that because paragraphs (1) and (2) are conjunctive due to the addition of "; and", it requires that an action be taken by the defendant to verify the victim's age. REPRESENTATIVE BERKOWITZ countered that since the existing statute says, "the defendant reasonably believed the victim to be that age or older" and HB 243 adds "; and (2) undertook reasonable measures to verify that the victim was that age or older", in order to reasonably believe something, clearly, a person must have already undertaken reasonable measures to verify it. CHAIR ROKEBERG remarked that having a belief does not presuppose having undertaken a step to support that belief. REPRESENTATIVE BERKOWITZ argued, "How could you form a reasonable belief if you hadn't undertaken reasonable measures?" CHAIR ROKEBERG noted that because of the way young girls behave and dress in this day and age, these outward manifestations could lead to the formation of such a belief. He mentioned that perhaps the legislature should review the age levels listed in all of Alaska's sex crime statutes. TAPE 01-74, SIDE B Number 2480 REPRESENTATIVE BERKOWITZ said that if reasonable belief is conditioned on reasonable measures, then these should include checking ID as well as a whole other universe of things that are not listed HB 243. He noted that he has already established that although HB 243 is excluding mere statements, "you don't have a mere statement in conjunction with having physical intercourse with somebody; rather, you're having a mere statement in conjunction with the other person being present." REPRESENTATIVE KOOKESH expressed disbelief that this legislation is even being discussed because, according to the written sponsor statement, "HB 243 will force sexual predators who prey upon minors to go through a similar process" of checking ID. By the very fact that they're a sexual predator, he argued, "what makes you think they're going to follow the law and check an ID?" With regard to a sexual predator taking reasonable measures, he pointed out that those people are already breaking one aspect of the law anyway, so it is unreasonable to expect them to follow some other part of the law. "It just doesn't make any sense to me," he stated; "we're putting a lot of faith in a person who is already described as a sexual predator, and we expect him to follow the law to ask for ID?" CHAIR ROKEBERG said that he agrees with Representative Kookesh on that point, but he also pointed out that in current statutes regarding sexual assault and sexual abuse, there is a whole litany of different levels of crime as well as a number of "age hurdles and separations." There are multiple "statutory rape statutes" in Alaska, he noted. He then suggested that HB 243 could only be used to entrap somebody who had not taken steps to verify a younger partner's age in a consensual sexual situation. He asked whether this is the intent of HB 243. REPRESENTATIVE DYSON said his intention is to "undercut the guys who are breaking the law who use this as a defense. Just to say, 'He (or she) said they were of age, and boy, Judge, I sure believed it,' I want to force them to go the next step." REPRESENTATIVE JAMES asked which folks the sponsor intends this legislation to affect: Is it the 25-year-old who has sex with a 13-year-old, or is it the 18-year-old who has consensual sex with a 13- to 14-year-old? She also asked how many people "get off" by using a defense of mistaken age; how big is the problem HB 243 purports to fix? REPRESENTATIVE DYSON said that he is interested in addressing the problem of people who engage in sexual relationships with children who are more than three years younger than themselves - those people who are significantly older than the youth they prey on. He recounted that while growing up, everybody knew not to mess around with "San Quentin Quail." He stated that in Canada, at least up until he reached the age of 30, the penalty was capital punishment. This sent an incredibly restraining message; it was not just a "hand slap." He said he hopes to send the message, via HB 243, that it is dangerous in Alaska to take sexual advantage of young children. Number 2124 REPRESENTATIVE JAMES opined that the best way to "fix that problem" would be to remove paragraph (1); in this way, everyone who is over 21 and has sex with somebody that's under 16 would be "done" - no excuses. CHAIR ROKEBERG suggested that having de facto statutory rape laws are no longer sufficient; perhaps it is time to do something to get the message out to young people that statutory rape is against the law. REPRESENTATIVE BERKOWITZ opined that they should first have some empirical evidence before coming to that conclusion. REPRESENTATIVE JAMES mentioned that she "would like to have more than [a charge of] promiscuity for some of these girls who go out there and do this." MR. GUANELI, on the question of how often the defense of a mistake as to age comes into play, said it probably arises in perhaps a couple of dozen cases a year. He added that he is unable to say how often it is used successfully. The danger created by the current law, he opined, is revealed in the Fremgen case in which the defendant, as part of his defense, was allowed to tell the jury how the victim had described to him all the various sexual acts that she had performed with various partners, and which he claimed lead him to believe that she was old enough; such a defense paints a picture in the minds of the jurors of someone who is promiscuous and who doesn't deserve society's protection. MR. GUANELI noted that HB 243 is not drafted to say that only checking ID or asking the parents would be acceptable reasonable measures to verify someone's age, other steps might also be acceptable but are simply not listed specifically. He said he agreed with Chair Rokeberg that "; and" is conjunctive and means that a defendant has to take another step beyond "reasonably believed". It is too easy to simply say, "She was dressed that way"; such a statement tends to prejudice the jury against someone whom current law has declared is the victim. Number 1963 MR. GUANELI, in response to the question regarding what HB 243 does, said: The defendant is going to have to say, "I honestly believed that she was 16 or 17," which is all the current law requires. And, in addition to that, is going to have to prove that some other measures were taken to verify that belief. So, ... the defendant may be able to say, "Well she looked older and I believed it, but I didn't stop at that, I did something to verify it." If the defendant can't do that, if the defendant can't show that to the judge at the beginning, then the judge will say, "You can't present this to the jury at all." ... The judge has got to make some additional threshold determinations of whether or not this defense is even available, whether there is even any evidence that the defendant can raise. If the defendant has done absolutely nothing, has just looked at the girl and based on his subjective view of what looks 16 and what doesn't, that's not going to be enough. Something more has to be done; ... I think that's the thrust of this. REPRESENTATIVE BERKOWITZ noted that current statute doesn't say "honest belief", it says "reasonable belief", and the new language says "reasonable measures", that is, the stuff that makes up a reasonable belief. He posited that, "You can't get to 'reasonable belief' without undertaking 'reasonable measures', but 'reasonable belief' doesn't mean mere statements, and you're never going to have mere statements; it's going to be in a context." He requested that someone tell him, succinctly, whether HB 243 "changes anything that isn't already there." MR. GUANELI responded: There is a [paragraph] (1) and a [paragraph] (2), and in between the (1) and the (2) there is an "and"; ... the courts generally interpret separately numbered provisions to mean something different. ... I believe ... they are going to interpret this as requiring something additional as a means of verification. Number 1829 REPRESENTATIVE BERKOWITZ countered: "But when (1) equals (2) - when (1) and (2) are the same - then you're really not adding anything." REPRESENTATIVE JAMES suggested amending paragraph (2) to say only "undertook reasonable measures to verify that the victim was that age or older", and then delete the remainder. She opined that in this way, paragraph (2) would not restrict what could be done to verify a person's age. REPRESENTATIVE DYSON mentioned that people who sell alcohol and tobacco are making judgment calls based on "reasonable belief" when they decide which patrons to "card." CHAIR ROKEBERG pointed out that a vendor is different than a sexual predator. To expand on Representative James' point, he noted that putting too many "sideboards" on what can be used as an affirmative defense runs the risk of being found unconstitutional. He suggested amending paragraphs (1) and (2) to read "(1) reasonably believed the victim to be that age or older; and (2) does not include mere statements by the victim or the victim's friends that the victim is that age or older". Upon further consideration, he opined that HB 243 is unconstitutional. MR. GUANELI noted that the Fremgen case is the impetus for deleting the very last clause of paragraph (2) pertaining to victims under the age of 13; the age of the victim can no longer restrict the use of a mistake as to age as an affirmative defense. He added, however, that the Steve case affirms that the legislature can require that the defendant did everything reasonably possible to verify the victim's age if using such a defense. He opined that this is what HB 243 does, and that it is constitutional. REPRESENTATIVE BERKOWITZ noted that procedurally, the Alaska Court of Appeals affirmed the trial court's decision in the Fremgen case to allow the defendant to raise the defense of a mistake as to age, regardless of the victim's age. He explained that there are two components to a criminal act: a guilty mind and a guilty act; there has to be some kind of criminal intent. In the Guest case, he noted, the court said, "We believe that the charge of statutory rape is legally unsupportable ... unless a defense of reasonable mistake of age is allowed. To refuse such a defense would be to impose criminal liability without any criminal mental element." CHAIR ROKEBERG suggested that the sponsor "tune this thing up." He opined that although the sponsor is on the "right track," the committee has to make sure that the legislation could "pass constitutional muster." [HB 243 was held over.]
| Document Name | Date/Time | Subjects |
|---|