Legislature(2009 - 2010)CAPITOL 120
01/27/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB298 | |
| HB307 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 298 | TELECONFERENCED | |
| *+ | HB 307 | TELECONFERENCED | |
HB 298 - SEX OFFENSES; OFFENDER REGIS.; SENTENCING
1:08:22 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 298, "An Act relating to the crimes of
harassment, possession of child pornography, and distribution of
indecent material to a minor; relating to suspending imposition
of sentence and conditions of probation or parole for certain
sex offenses; relating to aggravating factors in sentencing;
relating to registration as a sex offender or child kidnapper;
amending Rule 16, Alaska Rules of Criminal Procedure; and
providing for an effective date."
CHAIR RAMRAS mentioned that proposed amendments would be
forthcoming, and that some of the requested statistics have been
provided to the committee. He then spoke briefly about other
steps and legislation that the administration is proposing to
address the problem of sexual assault and domestic violence (DV)
in Alaska. Referring to a letter from the Alaska Network on
Domestic Violence & Sexual Assault (ANDVSA) addressed to the
governor regarding HB 298, he noted that it read in part
[original punctuation provided]:
This bill will close many loopholes that currently
exist in Alaska law and no longer provide offenders
with an escape mechanism from prosecution. ...
Finally, we know from our work that most sexual
assaults occur between people that know each other or
are engaged in a relationship. ... Allowing judges to
enhance sentencing penalties through an aggravating
factor when perpetrators betray the trust in these
relationships and sexually assault their intimate
partners will send a clear message that when you
betray any trust relationship you will be held
accountable.
The Network thanks you Governor in bringing forth this
legislation which is a first step in reducing the
rates of sexual assault in Alaska.
REPRESENTATIVE GRUENBERG referred to a letter from Media
Coalition in members' packets expressing concern that provisions
of both HB 298 and current statute have constitutional problems;
pointed out that the letter doesn't describe the U.S. Supreme
Court's three-part test established in Ginsberg v. New York ,390
U.S. 629 (1968); and opined that this issue as it relates to
HB 298 needs to be vetted further before the bill moves from
committee.
1:22:53 PM
JOSEPH A. MASTERS, Commissioner, Department of Public Safety
(DPS), pointed out that the issue of sexual assault and DV is
complex, as will be the solution. He then spoke briefly about
some of the steps, in addition to HB 298, being taken by the
administration with the goal of reducing the number of such
offenses, ideally to the point of eliminating them altogether if
possible, and about some of the administration's funding
requests and the purposes for which the funding would be used.
CHAIR RAMRAS expressed his hope that the Department of
Corrections' (DOC's) funding needs, particularly in light of the
aforementioned steps and legislation, would also be addressed.
COMMISSIONER MASTERS, in response to questions, provided some
information about Alaska's Village Public Safety Officer (VPSO)
program and about DPS and associated agency personnel.
1:52:59 PM
PEGGY BROWN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), after providing some
information about the ANDVSA, said the ANDVSA supports HB 298,
which would strengthen the laws, hold perpetrators accountable,
and provide victims with more legal protections. The ANDVSA,
she relayed, has provided members with a handout containing
forcible rape statistics from the Federal Bureau of
Investigation's (FBI's) 2008 Uniform Crime Report (UCR),
including statistics comparing Alaska with other states that
have similar populations and rural/urban characteristics; with
statistics from Standing Together Against Rape (STAR) regarding
the Anchorage area; and with statistics from the Interior Alaska
Center for Non-violent Living regarding the Fairbanks area. She
highlighted some of those statistics, and emphasized that
although victims and perpetrators are being addressed by the
administration and local agencies, sufficient prevention efforts
are still lacking.
CHAIR RAMRAS, in response to comments, relayed that a
forthcoming amendment would be addressing the issue of
identifying sexual offenders who come to Alaska from states that
don't define sexual offenders the way Alaska law does.
2:09:11 PM
BYRON CHARLIE indicated a belief that providing a safe haven for
[people] dealing with the issues of DV and sexual abuse of any
kind is key.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. CHARLIE offered his understanding that regardless of how
severe jail sentences are, sex offenders will still exist, and
it is therefore important to deal with the issue at its source,
and, again, provide a safe haven [for victims].
2:11:51 PM
DAVID HOROWITZ, Executive Director, Media Coalition, mentioned
that Media Coalition is a trade association representing other
trade associations, and most publishers, booksellers,
librarians, and manufacturers and retailers of recordings,
films, videos, and videogames, and their consumers, in the U.S.,
and does First Amendment work on their behalf with regard to
local, state, and federal governments, and the courts. Noting
that he'd submitted a memorandum in opposition to HB 298, he
indicated that Media Coalition's concern centers on both
existing AS 11.61.128(a), and as proposed via Section 8 of the
bill.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. HOROWITZ noted that existing AS 11.61.128(a) bars the
electronic distribution of material that's sexual in nature,
whether actual or simulated, to anyone under the age of 16, and
that proposed AS 11.61.128(a) would expand that prohibition to
include any form of distribution. Proposed AS 11.61.128(a)
would make it illegal for a bookstore owner to sell a book on
sexual health, for example, to someone under the age of 16, and
would make it illegal for a video rental store to rent a video
such as Animal House, for example, to someone under the age of
16, and if an electronic version of such items were sold/rented,
doing so to someone under the age of 16 would be illegal under
existing law.
MR. HOROWITZ explained that in Ginsberg, the U.S. Supreme Court
ruled that minors could be restricted from accessing sexual
content, and established a three-part test to determine whether
doing so in a particular instance would be constitutional; under
that test, the material [must predominantly appeal to the
prurient, shameful or morbid interest of minors, must be
patently offensive to prevailing standards in the adult
community as a whole with respect to what's suitable material
for minors, and must be utterly without redeeming social
importance for minors]. Nothing in either existing law or the
bill, however, addresses this test, and so Media Coalition
believes that both existing law and the bill are
unconstitutional.
MR. HOROWITZ suggested that another way to make it illegal to
give minors sexually explicit content would be to tie it to
another illegal act, such as enticement. If such a restriction
is not tied to another illegal act, then the three-part test, he
opined, must be part of the judgment determining what kind of
material is at issue.
2:17:30 PM
REPRESENTATIVE GRUENBERG said that regardless of the
unpopularity of certain material, he is not willing to let the
constitution be trampled upon, and that he would prefer that the
committee, rather than the courts, address this issue and make
the bill constitutional. In response to a comment, he surmised
that Sections 9 and 10 of HB 298 are also of concern to Media
Coalition.
MR. HOROWITZ concurred, but predicted that addressing Section 8
would also cure any potential problems raised by Sections 9
and 10. In response to a question, he agreed to provide the
committee with written suggestions for alternative language.
REPRESENTATIVE GRUENBERG suggested to Mr. Horowitz that he also
look at Hanby v. State, 479 P.2d 486, 498 (Alaska 1970), a case
that dealt with some of these same issues.
MR. HOROWITZ, in response to comments and a question, pointed
out that the First Amendment applies throughout the country, and
that states have the authority to set standards judging what's
appropriate for their minors, as was designed by the
aforementioned the three-part test, which provides some
flexibility for different sensibilities; in other words,
Alaska's juries, prosecutors, and judges have the opportunity to
impose Alaska's community standards when judging what's
appropriate for Alaska's minors.
REPRESENTATIVE GRUENBERG explained to Mr. Horowitz that both the
Alaska Court of Appeals and the Alaska Supreme Court have held
that the Alaska State Constitution provides for greater First
Amendment rights than the U.S. Constitution.
2:26:26 PM
DEREK DeGRAAF, Sergeant, Supervisor, Technical Crimes Unit
(TCU), Alaska Bureau of Investigation (ABI), Division of Alaska
State Troopers, Department of Public Safety (DPS), after briefly
describing how the department addresses child pornography cases,
explained that in such cases, the hard part is discovering who
is in possession of it and who is seeking it out. Many cases
end in confessions that corroborate information the department
already has, but other cases end with no prosecution because the
department is unable to determine who put the child pornography
on a particular computer. The department, because of the high
burden of proof placed on it, only pursues those cases in which
it can determine who actually possessed and/or distributed or
had access to the material.
CHAIR RAMRAS asked whether the DPS is prepared to address any
increase in sexual assault and DV cases that results from
passage of the bill and the administration's other efforts to
combat the problem of sexual assault and DV in Alaska.
MR. DeGRAAF said that the department already has a steady
caseload, and indicated that the department's staffing resources
are insufficient to address even its current needs.
CHAIR RAMRAS surmised that an increase in such cases would also
put a strain on the resources of all the departments, agencies,
and entities that address situations involving sexual assault
and DV.
REPRESENTATIVE GRUENBERG referred to Section 6, and questioned
why it is proposing to delete from AS 11.61.127(c) the phrase,
"by a person knowing that the production of the material
involved the use of a child under 18 years of age that engaged
in the conduct".
2:37:54 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), offered her
understanding that that language is being deleted as unnecessary
because proposed AS 11.61.127(c) references AS 11.41.455(a),
which does require that the material depict a child under the
age of 18.
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 298.
REPRESENTATIVE DAHLSTROM expressed strong disfavor with those
who would use the First Amendment to promote the sexual
exploitation of children.
[HB 298 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| 2 HB298 Sectional.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 3 HB298 version A.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 4 HB298 CTS Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 1 HB298 HJUD Hearing Request.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 5 HB298 DOC Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 6 HB298 PDA Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 7 HB298 LAW Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM HJUD 2/1/2010 1:00:00 PM |
HB 298 |
| 8 HB298-DPS Fiscal Note.pdf |
HJUD 1/25/2010 1:00:00 PM HJUD 1/27/2010 1:00:00 PM |
HB 298 |
| 0 HB307 Sponsor Statement.pdf |
HJUD 1/27/2010 1:00:00 PM |
HB 307 |
| 1 HB307 v A.pdf |
HJUD 1/27/2010 1:00:00 PM |
HB 307 |
| 2 HB307 Sectional.pdf |
HJUD 1/27/2010 1:00:00 PM |
HB 307 |
| 3 HB307 Support.pdf |
HJUD 1/27/2010 1:00:00 PM |
HB 307 |
| 4 HB307-LAW-CRIM-01-25-10.pdf |
HJUD 1/27/2010 1:00:00 PM |
HB 307 |