Legislature(2013 - 2014)CAPITOL 120
04/14/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB370 | |
| HB315 | |
| SB173 | |
| SB128 | |
| SB170 | |
| HB370 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 315 | TELECONFERENCED | |
| + | SB 170 | TELECONFERENCED | |
| + | HB 370 | TELECONFERENCED | |
| += | SB 173 | TELECONFERENCED | |
| + | SB 128 | TELECONFERENCED | |
| + | SCR 2 | TELECONFERENCED | |
| + | HB 254 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 170-AFFIRMATIVE DEFENSE TO PROSTITUTION
3:39:18 PM
CHAIR KELLER announced that the next order of business would be
SENATE BILL NO. 170, "An Act relating to a defense to the crime
of prostitution for victims of sex trafficking."
3:39:27 PM
SENATOR BERTA GARDNER, Alaska State Legislator, speaking as the
prime sponsor informed the committee that SB 170 is part of a
national effort to provide as a defense against a prostitution
charge, the chance to demonstrate to the prosecutor that one has
been "trafficked" and forced into prostitution against their
will. The bill also allows the prosecutor to prosecute the
traffickers.
3:40:43 PM
STEVEN HANDY, Staff, Senator Berta Gardner, Alaska State
Legislature, in response to Representative Lynn, said a pimp is
one who traffics the prostitute and is actually the target of
the bill. The purpose is to not "double victimize" the person
who is being trafficked, first by the situation and also
arrested for prostitution.
REPRESENTATIVE LYNN noted that those prostituting do so for many
different reasons, and pimps may be coercive, cooperative, or
violent.
MR. HANDY said if the prostitute - hereafter referred to as the
sex traffic victim - evokes the affirmative defense authorized
by the bill, the sex traffic victim is obligated to work with
the prosecutor and law enforcement to identify the sex
trafficker. The affirmative defense would not get the sex
traffic victim "off the hook" as the decision regarding charges
against the sex traffic victim occurs in court, and not in the
field.
REPRESENTATIVE PRUITT stated that prostitution takes place for
several different reasons, and questioned how the bill would
only apply to those who are sex traffic victims. He said, "If
there's an individual that's in that, they're just trying to
make money ... it's a different scenario ...."
MR. HANDY explained the prosecution would determine whether the
affirmative defense is valid. The sex traffic victim evoking an
affirmative defense would have to identify the sex trafficker,
and there would follow an investigation by law enforcement.
3:45:16 PM
REPRESENTATIVE PRUITT asked for clarification on whether any
instance of prostitution would garner an affirmative defense,
which is the "lowest level of challenge ... on a conviction from
prosecution to address."
MR. HANDY said, "That's a definite no, it would not apply to
somebody who was doing this because that's their choice."
REPRESENTATIVE LEDOUX pointed out that a prosecutor in a sex
trafficking case can choose whether or not to prosecute someone;
therefore, an affirmative defense leaves the decision ultimately
up to a jury.
MR. HANDY explained that the definition of an affirmative
defense is that there are situations outside of the charges that
could excuse the defendant from the charges. The situation
arises after a person is arrested and charged, and the
affirmative defense is a tool to get out of the charge.
3:48:21 PM
CHAIR KELLER opened public testimony.
3:48:44 PM
SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse
and Rape Emergencies, Inc. (AWARE), informed the committee that
often women who are involved in prostitution are victims of
domestic violence and sexual assault who have been coerced into
sex trafficking. Senate Bill 170 creates an avenue for victims
to come forward, to be believed, and treated with respect.
3:49:49 PM
TARA RUPANI, Member, Community United for Safety and Protection,
representing herself, said she is a graduate student at the
University of Alaska Fairbanks (UAF). Ms. Rupani stated that
her research into sex trafficking legislation [House Bill 359]
[passed] in 2012, has only been used against alleged prostitutes
who were charged with prostitution in connection with sex
trafficking cases. For example, in a case with sex trafficking
victims, the victims were arrested and prosecuted for
prostitution, and during 2012 or 2013, all those who were
charged in Alaska under state law were also charged with
trafficking. Ms. Rupani said she was disappointed to learn that
the proposed legislation would not help any of the victims who
have been charged under state law, including Keyana Marshall,
who was charged with federal counts of sex trafficking, and
would not have been able to access an affirmative defense
because multiple sex traffickers were involved. Furthermore,
the bill is not intended to help those who have ever willingly
engaged in the sex industry, but only those who were induced
into prostitution, which creates a fourth legal definition of
sex trafficking and a distinction between some victims who are
deserving of protection, and others who are not; in fact, all
sex trafficking victims in Alaska should have access to
protection without being arrested. Ms. Rupani opined that
allowing victims of sex trafficking access to protection is the
first step to putting sex traffickers in jail, however, "if only
good victims can call the police it's actually going to make sex
trafficking worse.... ... [Because] they target people that they
know who ... already believe that they don't have access to
protection from the police." She stated that those who have
worked in the sex industry should be able to access protection.
She referred to "safe harbor" laws that have been implemented in
California and New York, and stressed that criminalizing victims
is a huge human rights issue that has been addressed by the
United Nations. Ms. Rupani said arresting victims of sex
trafficking violates the Trafficking Victims Protection Act, and
the proposed bill is not the solution to the situation in Alaska
where law enforcement continues to defend its decision to arrest
and charge sex trafficking victims. She concluded that, "A law
that condemns most victims while purporting to protect only a
few victims who are seen as worthy or good is going to increase
sex trafficking rather than decrease it in Alaska."
3:55:23 PM
REPRESENTATIVE LEDOUX asked whether Ms. Rupani's position is
that any prostitute is coerced into prostitution and should not
be prosecuted.
MS. RUPANI said absolutely not.
3:55:51 PM
KAYT SUNWOOD, read Keyana Marshall's statement as follows:
The trauma of being forced, coerced into prostitution
is a scary shameful situation. This can leave a
victim emotionally, mentally, and physically scarred.
To criminalize a victim is extremely cruel, however,
with no protective laws in place. Such
criminalization and punishment is of unethical and
immoral proportions. I am familiar with this scenario
because it happened to me. It wounded me deeply when
members of the APD vice unit ridiculed me for being
pimped. As they arrested me and placed me in a
vehicle, they said something to the effect of: Our
car isn't as nice as the Mercedes Benz your pimp
drives. Or things like: I know he wonders where you
are, or, Get back to him. I was a human trafficking
victim from ages 15 through 21. I have had two
abusers take advantage of me. I am now stuck with
mental memories of their abusive actions and if that
didn't make me feel like I had just no say in my own
actions, prison did. Being a victim of abuse
shouldn't be a crime. Anyone who is being forced into
any prostitution-related activities should not be held
liable for crimes committed in reference to
prostitution or conspiracy, charges involving
prostitution. When we define the word "victim" the
definitions are: (1) an unfortunate person who
suffers from some adverse circumstance; (2) a person
who is tricked or swindled. Unfortunately, I can
easily apply these definitions to myself. I was
trafficked by a woman whom I used to babysit for.
When she disappeared and went to prison, the next
perpetrator was an abusive, angry, violent, male. He
tore down my spirit and I went to prison for
prostitution. These incidents would have not happened
had I not been trafficked, drugged, and abused by this
man. I spent nearly three years in prison after I
agreed to turn state's evidence. I did that hoping
someone would identify the problem. Instead I heard
things like: Crazy, or Sorry that happened to you.
No victims' services were offered to me. I think
passing a bill where victims are protected, rather
than criminalized and re-victimized, is desperately
needed. Please make sure SB 170 truly protects
victims, rather than setting up good victim/bad
victim, and criminalizing some. As is this bill falls
short. If the intent of this bill is to address
trafficking, make it safe for those who are sex
trafficked, to help end sex trafficking.
3:59:44 PM
JON DUKE, Professor, Department of Justice, University of Alaska
Fairbanks, informed the committee he was a retired chief of
police from California and a consultant to Senator Gardner on SB
170. Mr. Duke urged the committee to support SB 170 for several
reasons. The bill changes the way justice is delivered without
weakening tools to control vice. Justice professionals are
bound to enforce the law, and even when aware that victims of
sex trafficking are often forced to break the law, agents of the
state may not be able to exercise leniency. Proposed SB 170 is
needed to enrich justice by increasing the options available.
In addition, SB 170 would raise awareness, reduce stigma and
self-recrimination, reduce victims' shame, and empower victims
to ask for help to escape their plight, and utilize community
resources to heal. Ultimately, victims will feel more
comfortable cooperating with police to prosecute traffickers.
Mr. Duke urged the committee to support SB 170.
4:02:26 PM
MAXINE DOOGAN, Member, Community United for Safety and
Protection, informed the committee the Community United for
Safety and Protection is a group of sex trafficking victims,
current and retired sex workers, and their allies in Alaska.
She said she was born and raised in Fairbanks, and her
organization opposes SB [170] because it is overbroad in that it
puts the burden of proof on the victim who is the defendant in a
criminal proceeding. The bill also creates a loophole of
arbitrary enforcement which allows the prosecutor to reinstate
charges against the sex trafficking victim following the
unsuccessful prosecution of sex traffickers. In addition, SB
170 does not offer immunity from prosecution, and she cautioned
that there may be the unintended consequences of false
accusations. Ms. Doogan said prostitution should not be
illegal, and the bill does not provide a way for sex trafficking
victims to have their convictions vacated. Finally, SB 170 does
not provide any identity protection for sex trafficking victims
who are being prosecuted for prostitution. She urged for the
removal of the criminalization of prostitution in order to
provide access to equal protection under the law, and thereby
reduce incidents of exploitation in Alaska. Ms. Doogan said she
opposes SB 170.
4:05:14 PM
CHAIR KELLER, after ascertaining that no one else wished to
testify, closed public testimony.
REPRESENTATIVE GRUENBERG asked Mr. Svobodny to describe the
quantity of proof required from a defendant to prove an
affirmative defense in a criminal case.
4:06:00 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law, recalled that the
requirement is a preponderance of evidence, and is not "beyond a
reasonable doubt." He said he would confirm his recollection as
soon as possible.
REPRESENTATIVE GRUENBERG cautioned that the bill is written so
that the burden of proof will shift to the defendant to prove
that they are a sex trafficking victim by a preponderance of
evidence - or a level higher - which would be very difficult.
He encouraged the sponsor to consider that that may be an
insurmountable burden in many cases.
REPRESENTATIVE PRUITT agreed that the defendants would be "in a
very difficult spot," and may already have concerns that they
cannot trust the police or the authorities. He said he agreed
with the intent of the legislation, but the bill may put more of
a burden on the victims.
REPRESENTATIVE LEDOUX disagreed. She suggested that the sponsor
and DOL consider adding an element of proof that the prosecutor
needs to prove beyond a reasonable doubt that the defendants are
not sex trafficking victims.
REPRESENTATIVE GRUENBERG reminded the committee of a previously-
heard bill related to an affirmative defense for the crime of
someone who encounters a victim of a drug overdose. The
language used in that bill was that the defendant had to produce
some evidence, and the prosecutor had to disprove beyond a
reasonable doubt.
MR. SVOBODNY interjected that it is a "preponderance of the
evidence."
[SB 170 was held over.]