Legislature(2007 - 2008)CAPITOL 120
05/10/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB145 | |
| HJR2 | |
| HB250 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 250 | TELECONFERENCED | |
| + | HJR 2 | TELECONFERENCED | |
| + | SB 145 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 250 - YOUTH INAPPROPRIATE SEXUAL CONDUCT 2:33:52 PM CHAIR RAMRAS announced that the final order of business would be HOUSE BILL NO. 250, "An Act relating to children engaging in inappropriate sexual conduct." 2:35:30 PM REPRESENTATIVE MIKE DOOGAN, speaking as the prime sponsor, began by informing the committee that HB 250 is unfinished. He then informed the committee that the legislation is the result of the Task Force on Preadolescent Children with Sexual Behavior Problems, which produced a report. [Chair Ramras turned the gavel over to Vice Chair Dahlstrom.] REPRESENTATIVE DOOGAN noted that the committee packet includes a summary of the task force's conclusions. The task force develop a fairly comprehensive and costly [solution], with an approximately $10 million fiscal note. He explained that HB 250 attempts to deal with the problem of sexual assault committed by children who are too young to be dealt with even via the juvenile justice system. Generally the courts have held that those younger than 12 years of age are too young to have the requisite intent in order to be prosecuted. Therefore, in these cases, there's no system to deal with it as the agencies of the state are prepared and have the legal authority to address situations in which children are the victims, not perpetrators, of sexual assault. These agencies don't have the legal authority, ability, or resources to address those situations in which children are the perpetrators of sexual assault. Given the aforementioned, Representative Doogan said that he decided to introduce HB 250 as a way of starting what he hopes will result in a broad and thorough conversation on this subject. REPRESENTATIVE DOOGAN explained that Section 1 of HB 250 adds children who engage in inappropriate sexual conduct who aren't supervised or treated for that to the child in need of aid (CINA) statute. Section 2 requires that the parent, guardian, or other individual responsible for a child to report such activity to the Office of Children's Services (OCS). The legislation allows the department to open a case file and investigate the charges. Furthermore, the legislation provides that a person who fails to report this activity is guilty of a class A misdemeanor. The legislation defines "inappropriate sexual conduct" as conduct that would be illegal if committed by an adult rather than a child. REPRESENTATIVE SAMUELS inquired as to what occurs now in these cases. REPRESENTATIVE DOOGAN answered that it depends on the circumstances as there isn't a particularly well-developed method that can be employed. REPRESENTATIVE GRUENBERG asked whether sexual behavior problems (SBPs) are a recognized diagnosis in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). REPRESENTATIVE DOOGAN related his understanding that SBP is a recently recognized phenomenon and could be referred to differently in other states. 2:45:09 PM SHARON ARAJI, Ph.D., Professor of Sociology, University of Alaska - Anchorage; Chair, Task Force on Preadolescent Children with Sexual Behavior Problems, informed the committee that there is a lot known about these children nationwide and internationally. In fact, she noted that she started research on this topic over 13 years ago and published a book on the topic. At the time, she spoke with most agencies in Anchorage as well as outside communities and discovered that almost everyone in these agencies know of such children. However, no [agency] in the state has the mandate or resources to deal with these children. She noted that after writing her book, she put this topic away until the Anchorage School District had a case a couple of years ago in which a six-year-old sexually abused another six-year-old. At that point, she recalled being contacted and informed of people's experiences with this. She recalled that during her research, she went through 102 closed files of an agency and found that there were 21 families with children 12 and under who were sexually abusing other children. DR. ARAJI noted that most of that was intrafamilial. After the case with the Anchorage School District was closed, she said she contacted a detective with the Anchorage Police Department (APD) and asked if anything had been done to address this, to which the answer was no. The aforementioned was the impetus for establishing the task force. She emphasized that if these children aren't addressed, they will go on to have problems or have additional victims. National longitudinal research illustrates that identifying these children early and getting them some form of treatment early can help resolve some of the child's issues. In response to Representative Dahlstrom, Dr. Araji informed the committee that her book is titled "Sexually Aggressive Children, Coming To Understand Them". REPRESENTATIVE LYNN asked Dr. Araji if she has written any other books on this subject or any other subject. DR. ARAJI replied yes, and specified that she has written chapters in other books on this topic and the topic of domestic violence. In fact, just a few months ago she was asked to update an article for a new journal regarding interpersonal violence. She noted that she also gives workshops on this topic. She offered to provide her vitae to anyone interested. 2:52:16 PM DAVE PARKER, Lieutenant, Anchorage Police Department (APD), Municipality of Anchorage (MOA), informed the committee that he is the commander of one of the detective units that deals with crimes against children. He explained that there is no way in which law enforcement can effectively address this issue because these children can't be prosecuted. He related that the police department is often contacted when sexually aggressive children act out behaviors with other children. He noted that one must keep in mind that often [these sexually aggressive] children are victims themselves. Anything that can be done to assist OCS or any other organization in the state to more effectively address this problem and provide help to these children would be money and effort well-sent. REPRESENTATIVE GRUENBERG offered that Title 47 seems to have a lot of statutes that would allow this to be addressed. MR. PARKER said if that were so, everyone wouldn't be present today. He opined that the proposed addition of paragraph (13) to AS 47.10.011 is the beginning stage of assisting Title 47 in addressing the issue. The difficulty is that OCS doesn't address any abuse that's outside of the home. However, OCS can address a situation that's intrafamilial. Law enforcement can intervene if the perpetrator is over the age of 12. The mandatory reporting requirement in HB 250 is very important because it requires that these [sexually aggressive children under the age of 12] be entered into the system so that a case can be opened by OCS, a proper evaluation performed, and a treatment plan developed. REPRESENTATIVE GRUENBERG surmised then that HB 250, for the first time, allows the treatment of a child through the CINA process when the child has committed a delinquent act. This legislation, he opined, seems to offer a different route than the quasi criminal route. MR. PARKER noted his agreement, and added that he struggles with thinking of a child under the age of 12 being considered a criminal, although the behavior could amount to criminal conduct if he/she were older. REPRESENTATIVE GRUENBERG inquired as to why this one type of quasi criminal activity is limited to inappropriate sexual behavior and doesn't include assaultive behavior of other types or cruelty to animals, which are precursors of disturbed children. MR. PARKER related that the problems he sees primarily focus on the sexualized behavior of children. He opined that children assaulting other children could be approached via a different venue. He emphasized the need to address children exhibiting and perpetrating sexualized behavior on other children. 2:57:50 PM CYNTHIA BRADLEY, Detective, Anchorage Police Department (APD), Municipality of Anchorage (MOA); Co-Chair, Task Force on Preadolescent Children with Sexual Behavior Problems, informed the committee that for the past five years she has been in the Crimes Against Children Unit. She further informed the committee that she is a 15-year veteran with the Anchorage Police Department. She noted that she has seen and worked with these cases. In fact, she recalled the case of which Dr. Araji spoke and related that she had been in contact with the child [who was sexually aggressive] at the age of five and was asked to interview the child as a victim, although he was the aggressor. The interview was to determine if the reason the child was acting out was because he had been victimized. She recalled that when the child was asked why he did what he did, he responded by relating that his mind told him to do it. The aforementioned seemed to be a red flag. The parents were told the child should receive treatment, but the minimized the situation by speaking with their physician and relaying that the child was merely "playing doctor." Ultimately, it resulted in a lawsuit and hundreds of thousands of dollars in costs. The child went on to perpetrate on another child. She relayed that she ultimately had three investigations involving the same child, and was able to determine that he probably began acting out at the age of 4. MS. BRADLEY informed the committee that she currently has a case in which a 12-year old has been perpetrated on since the age of 6. The perpetrators, cousins, are less than three years older than the victim, and therefore they can't be charged with sexual abuse of a minor. Perhaps this behavior wouldn't have continued had the situation arisen earlier and there was the ability to address the matter. The problem she identified, as a law enforcement officer, is that the Crimes Against Children Unit has the highest assigned caseload in the detective division and that doesn't include these cases. Furthermore, the division is spending resources in this area that it doesn't have. [Vice Chair Dahlstrom returned the gavel to Chair Ramras.] 3:03:01 PM DENNIS MALONEY, Attorney at Law, P. Dennis Maloney P.C., related that he was shocked when the first case of this type surfaced. However, after the case became public, [his office] received over two dozen calls regarding children who have been perpetrated upon by other children. He then explained that if the perpetrator is under 12 years of age, the police department doesn't charge the child. Mr. Maloney then informed the committee that in Atlanta, Georgia, there is an institution for children who are sexual perpetrators. The institution has a waiting list of four-year olds. The average stay is one to two years. In investigating this first case, it was determined that this child, with an intelligence quotient (IQ) above 140, had penetrated at least six other children. MR. MALONEY informed the committee that last year in Anchorage OCS received about 130 referrals regarding children under 12 years of age perpetrating sexually inappropriate behavior on other children under 12 years of age. Although most of those cases are relatively innocent, there are a few hard core cases in which the perpetrators seem to re-offend. In some cases, the victims become perpetrators. He related another case in which no adult was involved and the perpetrator and victims were under 12 years of age, and therefore the perpetrator wasn't charged or provided treatment. Mr. Maloney emphasized that currently there is no method to address this problem, and he predicted that these children perpetrators will be repeat offenders who will rape and assault others and ultimately end up in the criminal system. Alaska has the highest rate of sexual assault in the nation, and it must be addressed, she stressed. 3:07:09 PM MR. MALONEY related that there are 15 treatment facilities for these children across the nation with specialists in Colorado, Washington, Oklahoma, Pennsylvania, Florida, and Georgia. An individual in Anchorage has been trying to treat some of these children, but he recently announced his retirement. Mr. Maloney stated that this matter must be addressed with a comprehensive approach. Although the cost to society is substantial, the cost to victims is immeasurable. Furthermore, the cost of a life of crime is even more substantial, amounting to almost $2 million per offender. These children have to be identified and treated, he opined. He related that the task force determined that in Anchorage there are approximately 10 hard-core children sexually assaulting other children on an active basis who would require institutionalization. MR. MALONEY stressed the need to review this problem, and opined that it would be a wise use of funds to prevent and treat these sick children. Alaska has, on average, 1,000 incarcerated sex offenders, which cost about $355,000 a year per adult sex offender. Therefore, $355 million in taxpayer funds is being spent. Mr. Maloney concluded by informing the committee that he's going to try to raise money to fund a professor who can teach the psychologists in Anchorage how to handle this problem. [Chair Ramras turned the gavel over to Vice Chair Dahlstrom.] VICE CHAIR DAHLSTROM clarified that the OCS is operating within the bounds of the law as it is currently written. The legislature is now reviewing what it can do to address this problem. MR. MALONEY noted his agreement that OCS is limited in what it can do, not to mention that the agency is over worked. 3:12:47 PM JEFFREY MAGID, Attorney at Law, P. Dennis Maloney P.C., informed the committee that he has worked with Mr. Maloney on these sexual assault cases. Referring to the case to which Ms. Bradley spoke, Mr. Magid related that the incident was able to occur partially because the parents of the perpetrator transferred the perpetrator from school to school, after he had assaulted a child in preschool. In fact, the school at which the perpetrator attended kindergarten was preparing to handle the child as a discipline problem in the following year, but his parents relocated the child to another school without notifying anyone of his sexual propensity. The testimony in the case was instructive as to the parents' knowledge. Therefore, a portion of HB 250 places the responsibility on parents to obtain treatment and provides for penalties if treatment isn't sought. Moreover, the legislation requires the parents to inform those charged with supervision of children to protect potential victims. VICE CHAIR DAHLSTROM relayed that she and Representative Doogan have discussed these issues and are committed to working on this issue throughout the interim. 3:15:35 PM MARY ELAM, Program Director, Standing Together Against Rape (STAR), informed the committee that research has shown that the earlier the intervention and treatment, the more effective it is and the better chance of success. Without intervention, these children perpetrators will continue the behavior and there will be more and more victims. In many cases, it's likely that the perpetrators are victims themselves, she noted. Therefore, the opportunity to receive treatment and intervention will also help address the perpetrator in his/her status as a victim. 3:17:22 PM JOSH FINK, Director, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), said that although he appreciates the efforts of the sponsors, OPA has significant concerns with the legislation, as written. He related the observation of Chief Justice Roberts who, when in Fairbanks last week, expressed concern that legislatures are reacting to isolated cases, though extreme and upsetting, and proposing legislation that has a much broader impact on society than simply addressing the facts of the case. He opined that the aforementioned is the case with HB 250, which has extremely broad implications and inserts government oversight in Alaska in ways in which most would likely object. The aforementioned, he opined, is harmful to children. MR. FINK noted that Section 1 adds new jurisdictional ground under which OCS can take children under state custody for child abuse and neglect. While OPA finds child-on-child sex, assault, or inappropriate conduct reprehensible and something that should be addressed, the jurisdictional ground in HB 250, as written, is very broad. Section 2 adds a reporting requirement for individuals who were heretofore not required to report to OCS, including parents, guardians, and other persons responsible for the child. The last category is very broadly defined and vague to the point that there would be much litigation. Furthermore, the range of incidents that these people, who aren't mandatory reporters, must report is quite broad because the definition of inappropriate sexual conduct is quite broad. For instance, it refers to situations such as a toddler exposing and touching himself/herself in public or innocently touching an undeveloped breast, buttocks, or genital of another child. Under the statute referenced in Section 2, the aforementioned acts are defined as inappropriate sexual conduct and one who doesn't report it commits a crime. MR. FINK reiterated that the scope of the definition of inappropriate sexual conduct is far too broad. "OPA has objections on a policy basis to labeling as inappropriate sexual conduct what many know by common sense and what child experts confirm to be preadolescent behavior," he said. The normal curiosity of children shouldn't result in labeling or stigmatization nor should the failure to report such behavior result in possible criminal charges and the opening of an OCS file. He then stated that there are also significant notice issues in the legislation as written. The public is expected to know the law, but in some cases courts find that it's unreasonable to expect the public to be on notice of some duty. This legislation expects a broad category of individuals to know that they have a reporting requirement and know what constitutes a crime under AS 11.41.410-11.41.470. Mr. Fink suggested that this requirement may not be reasonable and has potential constitutional infirmities. MR. FINK related that he will be submitting HB 250 to some of the child development experts with whom OPA regularly works for evaluation and feedback. Mr. Fink noted his disagreement with prior testimony and related that OPA sees very few of these cases and OPA is involved in every case in which the state takes custody. With regard to how these situations would be addressed under current law, Mr. Fink explained that when a parent neglects or medically neglects his/her child the state may take that child into custody, which could include failure to supervise or obtain treatment of the child if the parent is made aware of behavior issues of the child. Therefore, if the matter is brought to the parent's attention and the parent does nothing, OCS can take custody. Another route the earlier mentioned case could have gone would've been to report the child to the Division of Juvenile Justice and if the agency agreed there was concern, the division could've made a report to OCS that could develop an action plan. MR. FINK said that failure to meet that action plan could've resulted in the child being taken into state custody. Alternatively, the Division of Juvenile Justice (DJJ) could recommend a course of treatment for the child. Therefore, Mr. Fink said that he doesn't believe existing law is completely unable to address these situations. He reiterated that OPA has grave concerns about this legislation. He then offered to work with the sponsors and committee on this legislation over the interim. He noted that OPA wasn't asked to join the task force and when it attempted to obtain information, it was unsuccessful. The information it did obtain made the agency concerned about the punitive nature in which the task force was moving. Mr. Fink concluded by emphasizing his serious concern with the reach of HB 250. VICE CHAIR DAHLSTROM said she looked forward to working with OPA and acknowledged that the legislation needs work, particularly in regard to the definition of "inappropriate sexual behavior" and reporting requirements. 3:25:02 PM REPRESENTATIVE LYNN inquired as to the type of civil litigation HB 250, as written, might cause to be brought forth. MR. FINK related his understanding that if a parent doesn't report such behavior, it's a crime. Therefore, civil negligence per se could be argued. VICE CHAIR DAHLSTROM reminded the committee that HB 250 won't be leaving the committee as currently written. REPRESENTATIVE DOOGAN requested that Mr. Fink, during his participation, point out where in AS 11.41.410-11.41.470 it specifies that [not reporting this behavior is] a felony, which is what's required under the current definition. 3:28:10 PM JAN RUTHERDALE, Senior Assistant Attorney General, Child Protection Section, Civil Division (Juneau), Department of Law (DOL), agreed that there are some constitutional problems with HB 250, as currently written. Ms. Rutherdale said she didn't believe that Section 1, which expands the jurisdictional statute, is necessary as what's sought can be achieved [with existing law]. She noted that she shares Mr. Fink's belief that Section 1 creates new jurisdictional ground as well as Representative Gruenberg's concern regarding whether this would open the door to similar grounds. Within Section 2, regarding mandatory reporting, there are some privacy problems. In fact, there may even be a problem related to self incrimination of a parent, an accessory to the fact. Ms. Rutherdale opined that "inappropriate sexual conduct" seems to be overly broad and vague. She questioned whether the intent is to refer to any age children, and whether the language is referring to consensual conduct or nonconsensual conduct. The difficulty is that children aren't old enough to legally consent to be touched. Ms. Rutherdale said that she would be willing to work on the legislation. 3:32:06 PM MIKE LESMANN, Program Coordinator, Office of Children's Services (OCS), Department of Health and Social Services (DHSS), opined that after meeting with Representative Doogan and his staff, he is convinced that the sponsor wants to find the right solution to a real problem. However, OCS is unable to support HB 250 at this time, although the OCS recognizes the importance of treating children with sexual behavioral problems, and protecting other children from them. Mr. Lesmann acknowledged the alarming reports of incidents involving these children in Alaska and recognized the impressive multi-disciplinary approach of the task force and the work it's done. Still, OCS simply can't support legislation that would require the public to report all the sexually inappropriate incidents between preadolescent children to OCS, especially in the absence of any parental culpability. This legislation seems to imply that OCS believes parents are incapable of discussing with their children the differences between good touch and bad touch, privacy issues, and personal space. Furthermore, legislation of this type seems to imply that OCS should be the first line of defense, when the agency would rather be the last line of defense. MR. LESMANN informed the committee that if parents aren't meeting their children's needs and behaviors and the problem is brought to the parents' attention by a school official and still the parent isn't responsive, OCS can and does get involved. Mr. Lesmann stated that AS 47.10, child protection statutes, are written such that OCS can intervene in these types of situations. He asked the committee to really consider whether it wants OCS to be more things to more people. If so, then OCS will have to request more resources. Furthermore, if OCS is asked to take on child welfare issues not just child protective services issues, OCS staff will be asked to perform more work than they are already doing. Moreover, this would be work that's in addition to the currently mandated work of the agency. He added that OCS doesn't believe that it can perform this extra work well enough. VICE CHAIR DAHLSTROM thanked everyone for their testimony and recognized those involved in this type of work are consumed by it. She related that [the legislature] takes this legislation very seriously. 3:37:57 PM DAVID SPERBECK, Ph.D., Forensic and Clinical Psychologist, North Star Hospital, informed the committee that he specializes in pediatric psychology and neuropsychology. He further informed the committee that for 24 years he was the forensic psychologist for the State of Alaska in all criminal matters and as such provided the majority of the court-appointed psychiatric evaluations. During the last 20 years, Dr. Sperbeck related that he has an outpatient private practice clinic at Northstar Hospital. He explained that Northstar Hospital is a children and adolescent psychiatric facility. Dr. Sperbeck testified in support of HB 250 primarily due to having examined several thousand adult sexual offenders and at least 1,000 children who engaged in problematic sexual behaviors. He assured the committee that these children aren't born misbehaving sexually, but rather usually it's the product of abuse or neglect. DR. SPERBECK said that typically, these children aren't picked up, monitored, or supervised until adolescents. Rarely, if ever, do adolescents act out, with sexual behavioral problems, for the first time as adolescents. Almost always the problems could have been and may have been identified at an earlier age. Dr. Sperbeck said, "The one thing I really support about this legislation is the mandatory evaluation and assessment." He assured the committee that psychologically, if a child's personality problems aren't addressed and remedied by the age of 10 or 11, there's really not much change that any therapy could achieve, in terms of changing the course of that child's personality. Therefore, after the age of 10 or 11, it's a question of damage control rather than damage prevention. If a child can be treated prior to the age of 10 or 11, resocialization or cognitive behavior therapy can provide a chance to slow down the epidemic of narcissistic, selfish acting out that so many sexual offenders demonstrate later in life. DR. SPERBECK added, "That's one of the reasons why sex offender treatment ... has such poor outcome results in adults, is because it's a function of their personality more than a mental disease or defect." With regard to Mr. Lesmann's testimony, Dr. Sperbeck concurred that adding more work to an already over worked and beleaguered group of dedicated professionals will be extremely difficult. However, he emphasized, "An ounce of prevention is worth a pound of cure later on with these children." Furthermore, prevention and stemming the exposure to more abuse is extremely crucial to reducing the potential number of perpetrators while addressing the needs of the potential victims. 3:42:51 PM REPRESENTATIVE SAMUELS inquired as to the length of therapy for children under the age of 10. He then inquired as to how many children this would encompass in Alaska. DR. SPERBECK answered that the length of treatment depends upon the magnitude of the problem, the length of exposure, and the extent to which the child has developed virtues and values in other areas of their lives, and the type of support these children have. He explained that if the parent is responsible and unwilling to accept responsibility and accountability for his/her conduct, then the child must be removed from the home. In such a case, a child would have to be placed in either a hospital setting for a while and then transferred to residential treatment and then placed in a therapeutic foster home for a period in order that the child can start developing a semblance of normalcy and stability and value development. Dr. Sperbeck then related that North Star Hospital usually sees 2,000 new patients a year, of which he estimated 10 percent of the patients have significant sexual behavior problems that would place them in a hospital setting. Therefore, he estimated that 100-200 of the patients have very serious problems. He noted that in Alaska North Star Hospital sees the vast majority of children with severe behavior personality and psychiatric problems. Perhaps half of those would need to be removed, at least temporarily, from the home. Dr. Sperbeck reminded the committee of the difficulty of parenting and the need not to forget that addressing parental negligence must also be factored into this problem. DR. SPERBECK concluded his testimony by noting that those on the task force are very credible, intelligent, and dedicated to children. He related his support of their efforts to address this problem. VICE CHAIR DAHLSTROM announced that HB 250 would be held over in order to give interested parties an opportunity, over the interim, to help craft legislation to serve and protect Alaska's children. 3:47:49 PM REPRESENTATIVE DOOGAN offered his hope that everyone who testified and anyone else who has something to offer will do so. He requested that the public hearing be kept open on HB 250. VICE CHAIR DAHLSTROM relayed her intention to publicly notice any interim meetings addressing this legislation. REPRESENTATIVE LYNN interjected that through the process of protecting the children, parental rights must also be protected. VICE CHAIR DAHLSTROM concurred. [HB 250 was held over.]
| Document Name | Date/Time | Subjects |
|---|