Legislature(2011 - 2012)CAPITOL 120

02/28/2011 01:00 PM House JUDICIARY


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01:37:24 PM Start
01:37:54 PM HB127
02:51:43 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Meeting Delayed to 1:30 pm Today --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 127 CRIMES INVOLVING MINORS/STALKING/INFO TELECONFERENCED
Heard & Held; Assigned to a Subcommittee
         HB 127 - CRIMES INVOLVING MINORS/STALKING/INFO                                                                     
                                                                                                                                
1:37:54 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO  announced that the  only order of business  would be                                                               
HOUSE BILL NO.  127, "An Act relating to the  crimes of stalking,                                                               
online enticement of  a minor, unlawful exploitation  of a minor,                                                               
endangering the welfare of a  child, sending an explicit image of                                                               
a  minor,  harassment,  distribution   of  indecent  material  to                                                               
minors,  and   misconduct  involving   confidential  information;                                                               
relating to probation; and providing for an effective date."                                                                    
                                                                                                                                
1:38:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  THOMPSON moved  to adopt  the proposed  committee                                                               
substitute  (CS)  for  HB   127,  Version  27-GH1840\M,  Gardner,                                                               
2/24/11,  as the  working document.   There  being no  objection,                                                               
Version M was before the committee.                                                                                             
                                                                                                                                
1:38:50 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN made  a motion to adopt  Amendment 1, labeled                                                               
27-GH1840\M.1, Gardner, 2/24/11, which read:                                                                                    
                                                                                                                                
     Page 1, line 2, following "minor,":                                                                                      
          Insert "criminal impersonation,"                                                                                    
                                                                                                                                
     Page 2, following line 31:                                                                                                 
          Insert a new bill section to read:                                                                                    
        "* Sec. 6. AS 11.46.565(a) is amended to read:                                                                      
          (a)  A person commits the crime of criminal                                                                           
     impersonation in the first degree if                                                                                       
               (1)  the person                                                                                              
               (A) [(1)]  possesses an access device or                                                                     
     identification document of another person;                                                                                 
               (B) [(2)]  without authorization of the                                                                      
     other person, uses the  access device or identification                                                                    
     document   of  another   person  to   obtain  a   false                                                                    
     identification   document,  open   an   account  at   a                                                                    
     financial  institution,  obtain  an access  device,  or                                                                    
     obtain property or services; and                                                                                           
               (C) [(3)]  recklessly damages the financial                                                                  
     reputation of the other person; or                                                                                     
               (2)  the person violates AS 11.46.570 and                                                                    
          the crime intended is a sex offense; in this                                                                      
       paragraph, "sex offense" has the meaning given in                                                                    
     AS 12.63.100."                                                                                                         
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 11, line 16:                                                                                                          
          Delete "Sections 1 - 12 and 15"                                                                                       
                                                                                                                                
REPRESENTATIVE  LYNN, noting  that  Amendment  1 addresses  false                                                               
caller identification (ID) technology,  relayed that although the                                                               
DOL has expressed  some concerns about Amendment  1, [the drafter                                                               
has  indicated his  belief]  that there  might  be situations  in                                                               
which its adoption might make it easier to prosecute someone.                                                                   
                                                                                                                                
1:40:28 PM                                                                                                                    
                                                                                                                                
THOMAS  REIKER,  Staff,  Representative Bob  Lynn,  Alaska  State                                                               
Legislature, indicated  that [by altering AS  11.46.565(a), which                                                               
addresses  the  crime  of criminal  impersonation  in  the  first                                                               
degree,] Amendment 1 would make it  a [more serious] crime to use                                                               
false caller ID  technology, a false "Facebook"  account, a false                                                               
instant  messaging   profile,  or  a  false   e-mail  account  in                                                               
furtherance  of a  crime that  is a  sex offense.   Specifically,                                                               
under  Amendment 1,  if a  person commits  the crime  of criminal                                                               
impersonation in  the second degree  as outlined in  AS 11.46.570                                                               
and does  so in furtherance of  a sex offense, then  he/she could                                                               
be charged with the crime  of criminal impersonation in the first                                                               
degree; existing AS 11.46.570 reads:                                                                                            
                                                                                                                                
     (a)   A   person   commits  the   crime   of   criminal                                                                    
     impersonation in the second degree if the person                                                                           
          (1) assumes a false identity and does an act in                                                                       
     the assumed character with intent  to defraud, commit a                                                                    
     crime, or obtain  a benefit to which the  person is not                                                                    
     entitled; or                                                                                                               
          (2) pretends to be a representative of some                                                                           
     person  or   organization  and  does  an   act  in  the                                                                    
     pretended  capacity with  intent to  defraud, commit  a                                                                    
     crime, or obtain  a benefit to which the  person is not                                                                    
     entitled.                                                                                                                  
     (b) Criminal  impersonation in the  second degree  is a                                                                    
     class A misdemeanor.                                                                                                       
                                                                                                                                
MR. REIKER, in  response to questions, gave some  examples of how                                                               
a sexual predator  might easily use [the  aforementioned types of                                                               
technology] to  give his/her  victims a  false sense  of security                                                               
with regard to who they think they are interacting with.                                                                        
                                                                                                                                
The committee took an at-ease from 1:46 p.m. to 1:48 p.m.                                                                       
                                                                                                                                
MR. REIKER, in response to  further questions, relayed that under                                                               
Amendment 1,  committing the crime  of criminal  impersonation in                                                               
the second  degree in  furtherance of  a sex  offense would  be a                                                               
class  B  felony;   that  although  some  of   the  sex  offenses                                                               
referenced   via  Amendment   1  are   misdemeanors,  whether   a                                                               
perpetrator would  be charged with  a violation of  Amendment 1's                                                               
proposed AS  11.46.565(a)(2) would  be at  the discretion  of the                                                               
prosecutor; and  that Amendment 1 could  provide prosecutors with                                                               
another option regarding what they could charge someone with.                                                                   
                                                                                                                                
REPRESENTATIVE   THOMPSON   questioned   whether   the   behavior                                                               
Amendment 1 is intended to  address was already covered under the                                                               
statute pertaining to  the crime of online enticement  of a minor                                                               
- AS 11.41.452.                                                                                                                 
                                                                                                                                
MR. REIKER relayed that the sponsor  didn't feel that it was.  In                                                               
response  to  another  question,  he  noted  that  the  crime  of                                                               
criminal  impersonation  in  the  second  degree  is  a  class  A                                                               
misdemeanor,  and  the crime  of  criminal  impersonation in  the                                                               
first  degree is  a class  B  felony, and  reiterated that  under                                                               
Amendment 1,  committing the  second-degree crime  in furtherance                                                               
of a sex offense would result  in the penalty associated with the                                                               
first-degree crime.                                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG  characterized  that as  a  significant                                                               
jump in  penalties, and noted  that under Amendment 1,  the term,                                                               
"sex offense" has the meaning given in AS 12.63.100.                                                                            
                                                                                                                                
1:56:15 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section,  Criminal Division,  Department of  Law (DOL),  observed                                                               
that  AS  12.63.100(6)  defines   the  term,  "sex  offense"  for                                                               
purposes  of  registering as  a  sex  offender.   She  then  read                                                               
provisions of  AS 12.63.100(6),  clarified which  specific crimes                                                               
were being  referenced therein, and responded  to questions about                                                               
some of those various crimes; AS 12.63.100(6) read:                                                                             
                                                                                                                                
          (6) "sex offense" means                                                                                               
          (A) a crime under AS 11.41.100(a)(3), or a                                                                            
     similar  law  of  another jurisdiction,  in  which  the                                                                    
     person  committed  or  attempted  to  commit  a  sexual                                                                    
     offense, or  a similar  offense under  the laws  of the                                                                    
     other  jurisdiction;  in   this  subparagraph,  "sexual                                                                    
     offense" has the meaning given in AS 11.41.100(a)(3);                                                                      
          (B) a crime under AS 11.41.110(a)(3), or a                                                                            
     similar  law  of  another jurisdiction,  in  which  the                                                                    
     person  committed or  attempted  to commit  one of  the                                                                    
     following  crimes,   or  a   similar  law   of  another                                                                    
     jurisdiction:                                                                                                              
          (i) sexual assault in the first degree;                                                                               
          (ii) sexual assault in the second degree;                                                                             
          (iii) sexual abuse of a minor in the first                                                                            
     degree; or                                                                                                                 
          (iv) sexual abuse of a minor in the second                                                                            
     degree; or                                                                                                                 
          (C) a crime, or an attempt, solicitation, or                                                                          
     conspiracy  to  commit  a crime,  under  the  following                                                                    
     statutes or a similar law of another jurisdiction:                                                                         
          (i) AS 11.41.410 - 11.41.438;                                                                                         
          (ii) AS 11.41.440(a)(2);                                                                                              
          (iii) AS 11.41.450 - 11.41.458;                                                                                       
          (iv) AS 11.41.460 if the indecent exposure is                                                                         
     before a person under 16  years of age and the offender                                                                    
     has a previous conviction for that offense;                                                                                
          (v) AS 11.61.125 - 11.61.128;                                                                                         
          (vi) AS 11.66.110 or 11.66.130(a)(2) if the                                                                           
     person  who   was  induced  or  caused   to  engage  in                                                                    
     prostitution was 16  or 17 years of age at  the time of                                                                    
     the offense;                                                                                                               
          (vii) former AS 11.15.120, former 11.15.134, or                                                                       
     assault with the intent to  commit rape under former AS                                                                    
     11.15.160,  former AS  11.40.110, or  former 11.40.200;                                                                    
     or                                                                                                                         
          (viii) AS 11.61.118(a)(2) if the offender has a                                                                       
     previous conviction for that offense;                                                                                      
                                                                                                                                
2:05:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE THOMPSON  surmised that prosecuting  someone under                                                               
Amendment  1   would  be  difficult   if  the   person  violating                                                               
AS 11.46.570 weren't also convicted  of one of the aforementioned                                                               
sex offenses.                                                                                                                   
                                                                                                                                
MS.  CARPENETI  concurred, adding  that  she  couldn't imagine  a                                                               
circumstance in which it would be possible.                                                                                     
                                                                                                                                
MR. REIKER, in response to  comments, elaborated that Amendment 1                                                               
is intended  to make the underlying  criminal impersonation crime                                                               
a more serious offense if  the person's intent in committing that                                                               
crime is  to then commit  a sex  offense.  This  approach, rather                                                               
than  narrowing the  sex offense  statutes themselves  to address                                                               
false caller  ID technology, was  taken because the  drafter felt                                                               
that the  use of false  caller ID technology was  already covered                                                               
under  the criminal  impersonation statutes.   In  response to  a                                                               
question,  he  clarified   that  the  use  of   false  caller  ID                                                               
technology  would  only be  a  crime  if  the person  using  that                                                               
technology did so  with the intent to commit a  crime or obtain a                                                               
benefit to  which he/she was not  entitled.  He too  relayed that                                                               
the  drafter felt  that there  might be  situations in  which the                                                               
adoption  of  Amendment  1  might make  it  easier  to  prosecute                                                               
someone.                                                                                                                        
                                                                                                                                
MS. CARPENETI,  in response to comments  and questions, indicated                                                               
that the DOL's concern with  Amendment 1 revolves around the fact                                                               
that  it addresses  a  property crime  that  includes a  specific                                                               
intent to  commit a crime against  a person.  The  DOL would have                                                               
to prove beyond  a reasonable doubt that when  the person assumed                                                               
the false identity, that he/she  intended to commit a sex offense                                                               
- a  crime against a person.   Furthermore, because the  crime of                                                               
criminal  impersonation is  a property  crime, someone  convicted                                                               
under  Amendment 1  wouldn't be  required  to register  as a  sex                                                               
offender.   Given the problems  Alaska has with regard  to sexual                                                               
assault crimes and sexual abuse of  a minor crimes, and given the                                                               
[administration's]  stance  on  this  issue,  prosecuting  a  sex                                                               
offense  as a  non-sex-offense  is not  something  the DOL  would                                                               
generally  do,  because sex  offenses  are  too serious.    Also,                                                               
because the use of false  caller ID technology is already covered                                                               
under  existing  law, in  situations  where  a person  uses  such                                                               
technology  in  furtherance  of  a sex  offense,  the  DOL  could                                                               
already  charge  the  person  with both  the  crime  of  criminal                                                               
impersonation  in  the  second degree,  and  the  underlying  sex                                                               
offense.  Approaching such situations  in this manner would avoid                                                               
"this kind of  crossover of property [crimes]  versus sex crimes"                                                               
that the DOL is concerned about with Amendment 1.                                                                               
                                                                                                                                
2:22:24 PM                                                                                                                    
                                                                                                                                
DOUGLAS GARDNER, Director, Legal  Services, Legislative Legal and                                                               
Research Services, Legislative Affairs  Agency (LAA), speaking as                                                               
the drafter  of HB  127, in response  to questions  and comments,                                                               
offered  his  understanding   that  [the  presumptive  sentencing                                                               
range] for a  class B felony offense that isn't  a sex offense is                                                               
3 to 5  years, with a maximum sentence of  10 years, whereas [the                                                               
presumptive sentencing  range] for a  class B felony  sex offense                                                               
is 5 to 15  years, with a maximum sentence of  99 years; and that                                                               
he could  conceive of a situation  in which Amendment 1  might be                                                               
used  instead  of   the  existing  sex  offense   statutes  if  a                                                               
perpetrator  [through  the use  of  the  aforementioned types  of                                                               
technology] intends to commit a  sex offense but hasn't yet taken                                                               
a substantial step towards doing so.                                                                                            
                                                                                                                                
MS. CARPENETI, in  response to comments, reiterated  that the DOL                                                               
has a policy  against reducing a sex crime to  a crime that isn't                                                               
a  sex crime,  because, again,  a convicted  perpetrator wouldn't                                                               
have to register as a sex offender.                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  that  the  issues raised  by                                                               
Amendment 1 be researched further.                                                                                              
                                                                                                                                
[The motion to adopt Amendment 1 was left pending.]                                                                             
                                                                                                                                
2:35:41 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI  - in response  to questions regarding  the phrase,                                                               
",  with the  intent to  annoy or  embarrass another  person," as                                                               
used in Section  7, on page 3, lines 23-24  - explained that that                                                               
phrase addressing  the person's  culpable mental state  was added                                                               
to Version M so that  proposed AS 11.61.116, establishing the new                                                               
crime of sending an explicit image  of a minor, wouldn't apply in                                                               
situations  where someone  sends  around baby  pictures or  other                                                               
accidentally-explicit depictions.                                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG expressed  a preference  for using  the                                                               
word,  "humiliate" on  page  3,  line 24,  instead  of the  word,                                                               
"embarrass",  because the  word, "humiliate"  would perhaps  be a                                                               
stronger term for purposes of criminalizing the behavior.                                                                       
                                                                                                                                
MS. CARPENETI  relayed that although  her supervisor  thinks that                                                               
more  people  understand the  word,  "embarrass",  she thinks  he                                                               
doesn't  feel strongly  either way  about replacing  it with  the                                                               
word, "humiliate".                                                                                                              
                                                                                                                                
CHAIR   GATTO  suggested   instead   simply   adding  the   word,                                                               
"humiliate" to that phrase.                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG made  a motion to adopt  Amendment 2, to                                                               
replace the word, "embarrass" on page  3, line 24, with the word,                                                               
"humiliate".                                                                                                                    
                                                                                                                                
CHAIR GATTO offered his belief  that use of the word, "humiliate"                                                               
sets a pretty high standard, perhaps  too high.  He asked whether                                                               
such a substitution would be helpful.                                                                                           
                                                                                                                                
MS. CARPENETI  indicated that it  would be helpful just  in terms                                                               
of arriving at  a compromise.  In response  to concerns expressed                                                               
about the word, "annoy", she pointed  out that that term has been                                                               
used  for a  number of  years, without  problem, in  the statutes                                                               
pertaining  to   the  crime   of  harassment;   specifically,  AS                                                               
11.61.120(a)  says in  part, ",  with intent  to harass  or annoy                                                               
another person,".                                                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew Amendment 2.                                                                                  
                                                                                                                                
CHAIR GATTO  surmised that  if the  act of  annoying a  victim is                                                               
enough to  charge a person  under proposed AS 11.61.116,  then it                                                               
matters not that the person also went  so far as to engage in the                                                               
act of humiliating the victim.                                                                                                  
                                                                                                                                
2:38:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG made  a motion to adopt  Amendment 3, to                                                               
replace the word, "embarrass" on page  3, line 24, with the word,                                                               
"harass".                                                                                                                       
                                                                                                                                
REPRESENTATIVE  KELLER  objected.   He  said  he didn't  consider                                                               
using the word,  "embarrass", to be a problem  regardless that it                                                               
might set  a standard that could  be easily proved.   Instead, he                                                               
surmised, the  problem is going  to be  in proving the  intent of                                                               
the person, regardless of which terms are used.                                                                                 
                                                                                                                                
CHAIR GATTO expressed a preference  for using the word, "harass",                                                               
in that it could provide for an easier threshold to arrive at.                                                                  
                                                                                                                                
REPRESENTATIVE  LYNN  questioned,  though,  whether  to  "harass"                                                               
someone requires a series of actions.                                                                                           
                                                                                                                                
CHAIR GATTO acknowledged that point.                                                                                            
                                                                                                                                
MS.  CARPENETI  relayed  that  the  word,  "humiliate"  would  be                                                               
preferable to  the word, "harass"  because the phrase,  "to annoy                                                               
or  harass"   already  constitutes  the  culpable   mental  state                                                               
required for the crime of harassment,  and so it would be good to                                                               
make some  sort of  distinction between  the two  culpable mental                                                               
states.  In response to a  question, she added that she is merely                                                               
concerned  that using  a phrase  in proposed  AS 11.61.116(a)  so                                                               
similar to that used in  AS 11.61.120(a) would raise the question                                                               
of whether  a separate crime  is even necessary.   The dictionary                                                               
definition  of  the  word,  "humiliate"  is  not  confusing,  she                                                               
remarked, and  predicted that the  courts could apply  it without                                                               
difficulty.  In  response to comments and  further questions, she                                                               
explained  that in  order  for a  person to  be  found guilty  of                                                               
violating proposed  AS 11.61.116, the  State would have  to prove                                                               
that  the person  intended for  his/her behavior  to result  in a                                                               
particular outcome - that being to  affect how the victim felt or                                                               
how others  felt about the victim  as a result of  the behavior -                                                               
regardless of  whether that outcome  was actually achieved.   The                                                               
DOL, would prefer  that Section 7 retain the phrase,  ", with the                                                               
intent  to annoy  or  embarrass another  person,",  but would  be                                                               
amenable to  having the  word, "embarrass"  changed to  the word,                                                               
"humiliate".                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG expressed  concern  that  by using  the                                                               
word, "embarrass",  the person  could intend  to make  the victim                                                               
feel embarrassed and it would be  a crime even though very little                                                               
harm to the victim actually  occurs.  The word, "embarrass" might                                                               
be too broad, he concluded.                                                                                                     
                                                                                                                                
MS. CARPENETI  again relayed  that the DOL  would be  amenable to                                                               
having the word, "embarrass" changed to the word, "humiliate".                                                                  
                                                                                                                                
2:45:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew Amendment 3.                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG remade the  motion to adopt Amendment 2,                                                               
to replace  the word, "embarrass"  on page  3, line 24,  with the                                                               
word, "humiliate".                                                                                                              
                                                                                                                                
CHAIR  GATTO  ventured  that  in   the  context  of  proposed  AS                                                               
11.61.116  -  which  would  criminalize the  act  of  sending  an                                                               
explicit image  of a minor  under the age of  16 - it  seems like                                                               
almost any word would be suitable.                                                                                              
                                                                                                                                
REPRESENTATIVE LYNN  opined that  being humiliated is  much worse                                                               
than  merely being  annoyed  or  embarrassed, particularly  given                                                               
that  many  [seemingly  inconsequential]  actions  can  annoy  or                                                               
embarrass someone.                                                                                                              
                                                                                                                                
MS.  CARPENETI,   in  response   to  a   question,  characterized                                                               
Amendment 2 as being fine.                                                                                                      
                                                                                                                                
REPRESENTATIVE   KELLER  objected   to   the   motion  to   adopt                                                               
Amendment 2.    He  questioned  whether it  would  be  better  to                                                               
instead replace the  phrase, "annoy or embarrass"  with the word,                                                               
"harm"; Section 7 would then in  part read, ", with the intent to                                                               
harm another person,".                                                                                                          
                                                                                                                                
MS. CARPENETI said such a  change would be concerning because she                                                               
wouldn't  know what  the word,  "harm"  means in  the context  of                                                               
prosecuting someone  for the crime  of sending an  explicit image                                                               
of a  minor.  It would  be better, therefore, to  specify what is                                                               
meant,  as  both  the  current   language  and  Amendment  2  do.                                                               
Changing the  current language as  Amendment 2 proposes  would be                                                               
easier for the DOL to deal with, she concluded.                                                                                 
                                                                                                                                
REPRESENTATIVE KELLER removed his objection to the motion to                                                                    
adopt Amendment 2.                                                                                                              
                                                                                                                                
CHAIR GATTO, noting that there were no further objections,                                                                      
announced that Amendment 2 was adopted.                                                                                         
                                                                                                                                
CHAIR GATTO, observing that more work on both the bill and                                                                      
Amendment 1 was warranted, assigned HB 127 [Version M] to a                                                                     
subcommittee chaired by Representative Gruenberg.                                                                               

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