Legislature(2005 - 2006)
04/10/2006 02:19 PM House JUD
| Audio | Topic |
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| Start | |
| HB258 | |
| HB413 | |
| HB325 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 258 - SEXUAL ASSAULT BY PERSON WITH HIV/AIDS 2:19:57 PM CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 258, "An Act relating to aggravating factors at sentencing." [Before the committee was CSHB 258(HES).] 2:20:01 PM REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor, offered his understanding that HB 258 would make having human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) when committing a rape or sexual assault an aggravating factor at sentencing. Specifically, the perpetrator would have to have been previously diagnosed as having or having tested positive for HIV or AIDS. He remarked that how a perpetrator comes to have HIV or AIDS is not the issue; instead the issue is whether a convicted rapist or sexual predator previously diagnosed with HIV or AIDS should be subject to an aggravating factor at sentencing. REPRESENTATIVE LYNN offered his understanding that HIV and AIDS are incurable, potentially fatal, and primarily transmitted through "sexual behavior," which can include rape and sexual assault. In such cases, not only does a victim of rape and sexual assault suffer the horrific consequences of the attack, but he/she must also suffer the effects of a life-threatening disease that could essentially be a delayed death sentence. It is a sobering fact that some of those infected with HIV or AIDS have shorter lives than some criminals condemned to a prison's death row. REPRESENTATIVE LYNN said that he has received tremendous support for HB 258 from law enforcement officials and agencies providing services to victims of sexual assault. He relayed that Susan Sullivan - Executive Director, Victims for Justice, Inc. - wrote in part, "adding months of terror, and possibly years of illness and shortened life, to the horror of a rape, makes an attack by an HIV-AIDS positive rapist a horrendous assault"; that Walt Monegan - Chief of Police, Anchorage Police Department (APD) - has described a rapist or sexual offender with HIV or AIDS as an assailant with an insidious weapon that can be used to further strike out against victims and the victims' loved ones; and that Gerad Godfrey - Chair, Violent Crimes Compensation Board (VCCB) - urges passage of HB 308 "as a sign of respect, compassion, and understanding of the trauma experienced by victims of serious sexual offenses." REPRESENTATIVE LYNN mentioned that 24 states currently have some type of law that specifically criminalizes exposure or transmission of HIV, and offered his belief that it is long past time that Alaska joins them, particularly given that Alaska has the highest per capita rate of rape in the nation. In conclusion, he characterized HB 258 is a proactive measure that acknowledges the additional pain and suffering caused by rapists and sexual assailants who expose their victims to a life threatening disease. REPRESENTATIVE LYNN in response to comments, offered his understanding that the proposed sentencing aggravator would only apply in cases of rape and sexual assault wherein the perpetrator has been previously diagnosed with HIV or AIDS. REPRESENTATIVE GARA pointed out, however, that the statutes referred to in the bill - AS 11.41.410 through AS 11.41.455 - also include felony crimes involving sexual contact through clothing and consensual conduct between certain persons of certain ages. He offered his belief that the sponsor doesn't really want to have the proposed sentencing aggravator apply to such crimes, and suggested that the sponsor's intent could still be honored by adding a clause that says, "that creates the risk of a transmission of HIV or AIDS"; by definition, then, the bill would only address those crimes wherein [such transmission is possible]. CHAIR McGUIRE noted that such language would not preclude the bill from applying in situations involving consensual conduct between [certain persons of certain ages] when the conduct includes sexual penetration. 2:29:35 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that the DOL supports HB 258. She acknowledged that Representative Gara is correct in that crimes wherein only "touching" has occurred can rise to the level of felony conduct. She pointed out, however, that it would still be up to the court to decide whether applying an aggravator in a particular case would be appropriate, and surmised that the court would not apply such an aggravator in instances where there was no exposure. REPRESENTATIVE GARA suggested perhaps adding to page 1, line [6], the words, "and the conduct creates the risk of transmission of HIV or AIDS". MS. CARPENETI suggested using the term, "exposure". 2:31:12 PM MICHAEL SICA, Staff to Representative Bob Lynn, Alaska State Legislature, sponsor, relayed on behalf of Representative Lynn that part of the problem is that the additional pain and suffering for victims begins with the exposure, because within 72 hours, and preferably within 24 hours, victims must subject themselves to aggressive prophylactics for a 28-day period, prophylactics that that can make them sick. Furthermore, it can take up to 6 months to determine whether a victim has contracted the disease. CHAIR McGUIRE surmised, then, that Mr. Sica is speaking in favor of using the term, "exposure". MR. SICA concurred. REPRESENTATIVE GARA said he agrees with the concept but is not sure what the wording would look like for such a change. He reiterated his concern that the bill, as currently written, would apply in instances that involve sexual contact through clothing. MR. SICA noted that plenty of sexual assault crimes involving sexual penetration are "plead down" to "non penetration" offenses; in such cases, penetration has occurred and so has exposure. REPRESENTATIVE GARA offered his belief that even in such cases, the aggravator would still apply because it would be based on the underlying conduct. MR. SICA argued that it would be up to the court to decide whether such was the case; the language pertaining to sentencing aggravators currently says in part, "The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence above the presumptive range". MS. CARPENETI, in response to a question, suggested perhaps adding language that said, "a felony specified in these sections which exposed the victim to ...". REPRESENTATIVE GARA finished: "potential risk of AIDS or HIV transmission". MS. CARPENETI said, "Or to the exposure, ... because that's the fear." CHAIR McGUIRE suggested making the change conceptual, with the concept being that there is the potential for exposure, regardless of whether the victim actually contracts the disease. REPRESENTATIVE GARA concurred. MS. CARPENETI said the DOL would be happy to work with Representative Gara and the sponsor on this issue. 2:34:44 PM CHAIR McGUIRE said they would set HB 258 aside until later in the meeting so that appropriate language could be developed. REPRESENTATIVE GRUENBERG asked that consideration also be given to possibly narrowing the title so that it specifically reflects what the bill entails. He also asked whether the applicability provision is even necessary. MS. CARPENETI said that when she is drafting legislation, she generally doesn't include applicability provisions, but the DOL's editor adds them in. Having an applicability provision doesn't hurt, she remarked, even though criminal laws that increase one's potential punishment are always applied prospectively. REPRESENTATIVE GRUENBERG then pointed out that AS 11.41.452 - Online enticement of a minor - and AS 11.41.455 - Unlawful exploitation of a minor - are also referenced in HB 258 and are both felony crimes, but don't require there to have been any physical contact between the victim and the perpetrator; if such contact did occur, he surmised, then the perpetrator would be charged with a separate, higher crime. He suggested to [the sponsor that he also] give consideration to possibly eliminating those statutes from HB 258 as well. MS. CARPENETI offered her belief that the forthcoming suggested conceptual change will address that issue as well. She indicated that it is simply common to reference AS 11.41.410 - AS 11.41.455 when writing legislation pertaining to sexual offenses. She said she agrees that it's unlikely that under AS 11.41.452 or AS 11.41.455 there would be physical contact resulting in any exposure to HIV or AIDS. REPRESENTATIVE GRUENBERG mentioned that he may propose an amendment to eliminate the reference to AS 11.41.452 and AS 11.41.455. He then expressed the concern that a perpetrator may have only been diagnosed as having HIV or AIDS but yet not notified of that fact before he/she committed a crime for which the proposed aggravator would apply. As currently written, there is no requirement that the perpetrator knew he/she had been diagnosed with HIV or AIDS. Therefore, he opined, there should be some kind of knowledge or recklessness [standard] included in the bill; without such being included, a constitutional problem might arise. 2:39:37 PM REPRESENTATIVE GARA offered his belief that with the forthcoming conceptual change, the fact that a perpetrator was concerned enough to even get tested for HIV or AIDS would be sufficient. In response to a comment, he opined that application of the proposed aggravator would be justified even if the perpetrator doesn't yet know the results of that testing. REPRESENTATIVE WILSON and CHAIR McGUIRE, in response to a question, explained that one is not routinely tested for HIV or AIDS; instead, a specific consent form for such testing is required. CHAIR McGUIRE indicated that [CSHB 258(HES)] would be set aside brought back up later in the meeting. HB 258 - SEXUAL ASSAULT BY PERSON WITH HIV/AIDS 3:01:40 PM CHAIR McGUIRE announced that the committee would return to the hearing on HOUSE BILL NO. 258, "An Act relating to aggravating factors at sentencing." [Before the committee was CSHB 258(HES).] 3:02:11 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), explained that her supervisor, Susan Parkes, has expressed a preference for leaving [CSHB 258(HES)] as it is currently drafted for a couple of reasons, one of which is that all the factors about risk and exposure would require the DOL to have expert witnesses testify. As currently written, the judge can simply factor in the elements of exposure and risk if he/she does decide to apply the proposed sentencing aggravator. Ms. Carpeneti mentioned that the DOL does have some compromise language, but reiterated that the DOL would still prefer to leave the bill as is. She added that she does have a suggestion for narrowing the title. REPRESENTATIVE GRUENBERG said he'd like to hear the compromise language; having to have an expert witness is less important, he opined, than potentially sentencing someone unjustly. The cost of hiring expert witnesses is simply part of the cost of doing business. MS. CARPENETI offered the following language as a possible title change: "An Act relating to an aggravating factor at sentencing for sexual assault and sexual abuse [of a minor]." REPRESENTATIVE GRUENBERG said he would like the title to be even tighter than that, and indicated that he would be offering language to that effect later. MS. CARPENETI said that the aforementioned compromise language would involve adding, after "AIDS" on line 6, the words: ", and the offense involved penetration". Such additional language address Representative Gara's concern regarding sexual contact [through clothing], and Representative Gruenberg's concern regarding AS 11.41.452 and AS 11.41.455. She, reiterated, however, that Ms. Parkes would prefer to keep the language [in Section 1] as is. REPRESENTATIVE GARA referred to a proposed change he'd written and given to Ms. Carpeneti; that proposed change read [original punctuation provided]: At line 4 page 1 After .455 insert "that involves penetration, or that otherwise involves exposure to the victim to a risk, or a reasonable fear, that the conduct could potentially result in the transmission of HIV (or AIDS,)" MS. CARPENETI relayed that Ms. Parkes has the same concern with that proposed change. REPRESENTATIVE GARA offered his belief that it is such common knowledge as to what causes HIV or AIDS that an expert witness wouldn't be needed. 3:06:19 PM REPRESENTATIVE GRUENBERG, referring to the proposed compromise language offered by the DOL, opined that the issue that that raises is whether that language would require the involvement of an "extra" expert witness. He opined that it wouldn't because the question of whether penetration occurred would have been proven in the main case. MS. CARPENETI concurred, and clarified that the compromise language would also involve deleting the word, "and" from line 5. She noted, however, that the compromise language would raise concerns regarding situations in which the crime does involve penetration but is plead down to an offense that doesn't involve penetration. For example, situations wherein a charge of sexual assault in the first degree is plead down to a charge of sexual assault in the second degree. REPRESENTATIVE WILSON posited that if a struggle occurs, contact between open wounds could also create the risk of exposure. REPRESENTATIVE GRUENBERG agreed, but offered his belief that the question is whether there will be many such cases that would require the presence of an expert witness. He indicated that he would not be offering the DOL's compromise language as an amendment, and then asked Representative Gara whether his suggested written change would require the use of an expert witness. REPRESENTATIVE COGHILL observed that the specific crime will have already been proven and the person convicted by the time the court has to decide whether to apply the proposed sentencing aggravator. At that point, the question will be whether the defendant had been diagnosed with HIV or AIDS, and anybody who'd already signed a consent form to be tested for such diseases probably shouldn't attempt to plead ignorance. He suggested that the current language in the bill is adequate. REPRESENTATIVE GARA, referring to his suggested written change [text previously provided], offered his understanding that adoption of that change would address everyone's concerns. 3:12:02 PM MICHAEL SICA, Staff to Representative Bob Lynn, Alaska State Legislature, sponsor, expressed on behalf of Representative Lynn a preference for including the phrase, "conduct that could result in the transmission ...". REPRESENTATIVE GARA noted that his suggested written change already includes the phrase, "the conduct could potentially result in the transmission". MS. CARPENETI and REPRESENTATIVE GARA paraphrased the suggested written change further. MS. CARPENETI suggested that for clarity, it might be better to draft this suggested written change such that it contains a paragraph (1) and a paragraph (2). REPRESENTATIVE GARA said, "Sure." MS. CARPENETI, in response to questions, noted that because of the U.S. Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004), sentencing would occur as a separate procedure, and that the original form of the aggravator would be the most simple form for the DOL to deal with. She acknowledged that cases involving penetration would not require an expert witness during the sentencing procedure, though such might be required for cases involving other forms of potential exposure. REPRESENTATIVE COGHILL noted that if the suggested written change is adopted, there will also have to be a "reasonable fear" test as well as [expert testimony] regarding what would constitute exposure. He opined, therefore, that that language will significantly complicate the issue. MS. CARPENETI mentioned that it would be up to the sentencing court to decide what weight to give each of the factors present. 3:15:40 PM REPRESENTATIVE GRUENBERG indicated that he supports the suggested written change, particularly given that the majority of the cases to which this proposed aggravator may be applied will involve penetration. He opined that the expense of having an expert witness is minimal when compared with the cost of housing and feeding a prisoner. REPRESENTATIVE GARA said he did not think that just because the prosecution would be required to do more in the course of discharging its duty is a sufficient reason to not adopt an amendment. He acknowledged that cases involving some other form of potential exposure might require the testimony of an expert witness during the sentencing trial. Another circumstance in which the proposed aggravator might be applied is if the victim has a reasonable fear that he/she was subjected to the risk of contracting HIV or AIDS. In conclusion, he opined that without his suggested written change, [the bill] will get struck down by the courts because it doesn't make sense to charge somebody who has AIDS or HIV with an additional sentence if the crime he/she committed doesn't result in a risk that HIV or AIDS could have been transmitted to the victim. REPRESENTATIVE WILSON suggested that perhaps they should amend the suggested written change such that it would read: At line 4 page 1 After .455 insert "that involves penetration, or that otherwise involves exposure to the victim where the potential result could be the transmission of HIV (or AIDS,)" REPRESENTATIVE GARA said that would be fine. CHAIR McGUIRE indicated a preference for leaving the language [in Section 1] as is; in other words, simply leave it up to the judge to decide the issues raised. She mentioned that although she is sensitive to Representative Gara's point, she believes that most judges won't apply an aggravator in situations where the perpetrator poses no risk of transmitting HIV or AIDS. She assured members that she does not want to create a "status aggravator"; instead, the aggravator should be related to the risk the behavior poses. 3:22:00 PM MS. CARPENETI suggested instead that the committee alter [Section 1 of the bill] by deleting the word, "and" from line 5, and inserting after the word, "AIDS" the following language: ", and either (1) involves penetration or (2) the offense exposed the victim to a risk or fear that the offense could result in the transmission of HIV". She characterized this language as clearer than the aforementioned suggested written change. In response to a question, she offered her belief that using the term, "fear" would be sufficient, because even a small risk of exposure can terrify a victim and that is a form of harm. She also said she doesn't think that the behavior referenced in the bill would be considered a status offense; this proposed aggravator would be applied in situations where a person is convicted of sexual assault and has caused or potentially caused more harm to the victim. That's what aggravating factors address - things that make the crime worse. She, too, noted that the prophylactic treatment is very serious. CHAIR McGUIRE acknowledged that point. REPRESENTATIVE GARA opined that the current wording in the bill could make the behavior referenced a status crime because some of that behavior includes behavior that poses no risk of transmitting HIV or AIDS. REPRESENTATIVE GRUENBERG concurred, again referring to AS 11.41.452 and AS 11.41.455 as examples of such behavior. He said he supports Ms. Carpeneti's latest suggested change. REPRESENTATIVE COGHILL opined that the potential for harm is significant even in situations that don't involve penetration or other potential forms of exposure. He expressed a preference for allowing the judge to make the determination on some of these issues, and for allowing the aggravator to possibly apply regardless of whether there was penetration or other potential forms of exposure. 3:26:55 PM REPRESENTATIVE WILSON raised the issue of saliva exchange. CHAIR McGUIRE offered her understanding that an aggravator could only pertain to the crime that was plead to rather than the crime that was charged. MS. CARPENETI concurred, reiterating that this is of concern to the DOL. CHAIR McGUIRE asked whether other states have similar language, and whether Ms. Carpeneti knows of any legal challenges to such language. MS. CARPENETI said she not aware of any, but acknowledged that her research on that issue has been limited. MR. SICA noted that other states have made it a crime for a person with HIV or AIDS to have consensual sex without disclosing his/her status with regard to those diseases. He therefore characterized HB 258 as a "narrowly focused sexual assault law." CHAIR McGUIRE said she would prefer for the bill to be drafted such that if favors the victim. REPRESENTATIVE GARA expressed concern that someone could have an aggravator applied to his/her sentence even though he/she never poses a risk of transmitting HIV or AIDS. In response to comments, he opined that without a change to the current language, the bill would still also reference crimes that do not involve penetration, or a risk of transmitting HIV or AIDS in some other fashion, and crimes that are somewhat consensual in nature. REPRESENTATIVE GRUENBERG again raised the issue of the bill referencing AS 11.41.452 and AS 11.41.455; for the crimes listed in those statutes, the perpetrator may never even see the minor. In response to a comment, he pointed out that a more serious crime than is referenced in AS 11.41.452 could be charged if the victim does come into physical contact with the perpetrator. REPRESENTATIVE KOTT asked the sponsor to comment on the suggested change. REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor, said that he would prefer to leave the bill as is, but acknowledged that the committee process is meant to fix flaws in proposed legislation; therefore, if the suggested change would make the bill better he would be comfortable it. 3:33:28 PM REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment 1, to alter [proposed AS 12.55.155(c)(33)] such that it would read: the offense was a felony specified in AS 11.41.410 - 11.41.455, the defendant had been previously diagnosed as having or having tested positive for HIV or AIDS, and either (1) involves penetration or (2) exposed the victim to a risk or a fear that the offense could result in the transmission of HIV or AIDS REPRESENTATIVE COGHILL objected. A roll call vote was taken. Representatives Wilson, Gruenberg, Kott, Gara, and McGuire voted in favor of Conceptual Amendment 1. Representative Coghill voted against it. Therefore, Conceptual Amendment 1 was adopted by a vote of 5-1. 3:35:38 PM REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 2, to narrow the title such that it would read: "An Act relating to an aggravating factor at sentencing for sexual assault and sexual abuse [of a minor]." REPRESENTATIVE GRUENBERG indicated that he was considering adding more language to that title change. He asked about AS 11.41.452 and AS 11.41.455. MS. CARPENETI offered her belief that those would be considered within the title. REPRESENTATIVE GRUENBERG asked whether the title should include the terms HIV and AIDS. [No answer was audible.] REPRESENTATIVE GRUENBERG said, "Yes," and relayed that he would accept a friendly amendment. CHAIR McGUIRE remarked that typically a title is tightened when there is concern that unwanted items will be added to the bill. She said she can't envision that such could occur in this case. REPRESENTATIVE GRUENBERG offered an example. CHAIR McGUIRE surmised, then, that the proposal is to have Conceptual Amendment 2 say: "An Act relating to an aggravating factor at sentencing for sexual assault and sexual abuse [of a minor] that involves HIV or AIDS." REPRESENTATIVE GRUENBERG said yes. CHAIR McGUIRE objected to the motion. REPRESENTATIVE GARA suggested altering Conceptual Amendment 2 such that it would say in part, "that involves a person diagnosed with HIV or AIDS." He pointed out, though, that the current title is already limited to aggravating factors at sentencing. CHAIR McGUIRE, in response to a question, said she would remove her objection if Conceptual Amendment 2 does not contain the terms HIV and AIDS. REPRESENTATIVE GRUENBERG stated, then, that Conceptual Amendment 2 would alter the title such that it would only read: "An Act relating to an aggravating factor at sentencing for sexual assault and sexual abuse [of a minor]." CHAIR McGUIRE asked whether there were any objections to Conceptual Amendment 2. There being none, Conceptual Amendment 2 was adopted. 3:38:37 PM REPRESENTATIVE KOTT moved to report CSHB 258(HES), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 258(JUD) was reported from the House Judiciary Standing Committee.
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