Legislature(2021 - 2022)GRUENBERG 120
04/13/2022 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB5 | |
| SB7 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 7 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 5 | TELECONFERENCED | |
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
1:36:31 PM
CHAIR CLAMAN announced that the first order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act relating to
sexual abuse of a minor; relating to sexual assault; relating to
the code of military justice; relating to consent; relating to
the testing of sexual assault examination kits; and providing
for an effective date." He stated that there would be two
presentations on data related to HB 5. [Before the committee
was CSSSHB 5(STA).]
1:37:09 PM
TROY PAYNE, Ph.D., Director/Assistant Professor, Alaska Justice
Information Center (AJiC), College of Health, University of
Alaska Anchorage, offered two PowerPoints [in relation to CSSSHB
5(STA)]. He began the first PowerPoint, titled "FBI Uniform
Crime Report Statistics" [hard copy included in the committee
packet]. The presentation addressed the Federal Bureau of
Investigation's (FBI's) Uniform Crime Reporting Program (UCR),
and its definition of rape. He shared that AJiC is an academic
research unit which compiles, analyzes, and reports on criminal
justice topics to policy makers and practitioners to improve
public safety, increase criminal justice system accountability,
and reduce recidivism. He stated that AJiC's specialty consists
of a wide variety of quantitative data analysis.
1:39:24 PM
DR. PAYNE, pointing out slide 3, stated that UCR dates back to
the 1930s, when a need for reporting crime statistics in the
country had been recognized. To create consistency in reports,
he said, UCR has specific definitions for offenses. He added
that these definitions may be different from the definitions in
state statutes. He explained that UCR can only count crimes
known to the police, but each police agency has its own
classification system for offenses. He said that police
agencies will often report to a state agency, which reports to
the FBI. In Alaska police statistics are reported to the
Department of Public Safety (DPS), and it produces an annual
report titled "Crime in Alaska."
1:41:29 PM
DR. PAYNE, moving to slide 4, reiterated that UCR only includes
crimes collected from police reports. He added that the Alaska
Victimization Survey (AVS) would include crimes not reported to
the police. Moving to [slide 5], he explained that before 2013
the definition of rape had been limited, and the new definition
has been used in the presentation. He quoted the FBI definition
of rape as "penetration, no matter how slight, of the vagina or
anus with any body part or object, or oral penetration by a sex
organ of another person, without consent of the victim." He
continued that the current definition of UCR rape includes
victims of either gender, specifics of penetration, and
instances of victims being incapable of giving consent. He
stated that physical resistance on part of the victim is not
required to demonstrate a lack of consent. He stated that
police departments train on the FBI's user manual and gave
detailed examples. He concluded that this definition is much
more expansive than the prior definition.
1:45:10 PM
CHAIR CLAMAN offered the understanding that the current Alaska
definition of rape requires the use of force. He questioned
whether statistics collected in Alaska would capture conduct
which meets the UCR definition of rape, even though the
prosecution may not proceed with a case because of the absence
of force.
DR. PAYNE responded in the affirmative. He reiterated that UCR
definitions are completely different from state statutes. He
continued that [UCR statistics] only reflect information the
police have, not the prosecution or the statute the individual
is accused of violating.
CHAIR CLAMAN, with a follow-up question, asked whether UCR
statistics can determine the number of cases in Alaska which are
declined because the definition [includes the use of force].
DR. PAYNE responded that there is no way to determine this from
the UCR statistics alone. He expressed the understanding that
data from police departments and the Department of Law (DOL)
would be needed.
1:47:59 PM
DR. PAYNE, in reference to the graph on [slide 5], pointed out
that UCR calculates rape crime numbers in terms of the rate per
population of 100,000. He explained the calculation, and said
it standardizes the number of offenses across the country. He
drew attention to the incorrect assumption that states with
higher populations have a higher number of offenses. He argued
the UCR method produces a more comparable number.
DR. PAYNE, using the calculation, pointed out the chart on
[slide 6] shows that Alaska's rate is substantially higher than
the national average. He described the difference between the
national average and Alaska as "staggering." He referenced
several things which could influence the rates, including the
difference in reporting between states. For a better
understanding, he encouraged comparisons between state averages,
national averages, and victimization surveys. He suggested that
there could be differences in the numbers on the chart which do
not have a tight connection to differences "on the ground." He
warned that the substantial difference in Alaska's statistics is
very unlikely the result of reporting differences in the
country. He stated that [comparing] national averages using AVS
suggests the same [results].
1:50:53 PM
REPRESENTATIVE DRUMMOND applied the formula using the population
of Alaska and said the rape rate would be 1,085 versus the
national rate of 266. She questioned whether her estimations
were correct.
DR. PAYNE responded that this is roughly accurate, but he would
follow up with the actual numbers at a later date.
1:52:22 PM
REPRESENTATIVE VANCE, comparing Alaska's numbers to the national
average, noticed that Alaska's numbers vary over the course of
the years, while the national average remains relatively static.
She questioned whether there could be factors contributing to
the variation in Alaska's numbers.
1:52:59 PM
DR. PAYNE responded that UCR does not have good [data] on this.
He explained that, as a matter of pure math, larger numbers
would have more variation. He said it is very hard for counts
to hit zero, for example, the lower a number goes, the harder it
is to change.
1:53:29 PM
REPRESENTATIVE VANCE, with a follow-up question, clarified
Alaska's rape rate represents the cases known to police. In
reference to the inclusion of force in Alaska's definition of
rape, she questioned whether the state's [rate of rape] would be
higher without the use of force factored into the definition.
DR. PAYNE responded that UCR's definition of rape is explicit
that physical resistance is not required on part of the victim
to demonstrate lack of consent. He expressed the opinion that
there would be situations which would classify as rape under
UCR's definition but not under Alaska statutes. He deferred the
question to DPS for offence classification guidance.
1:55:53 PM
CHAIR CLAMAN commented that, assuming police are reporting
accurately to the FBI, the Alaska statistics would include rapes
using the UCR definition; thus, the Alaska rape rates would
reflect incidences reported which do not include the use of
force.
DR. PAYNE answered in the affirmative. He cautioned that this
is assuming agencies classify offences following the FBI's
manual. He continued that DPS does periodic audits of agencies,
but DPS would need to be questioned on its process. Typically,
agencies spend a good amount of effort and staff time to
classify the offenses correctly. He allowed that mistakes could
happen, and consistent counting is difficult for smaller
agencies.
1:57:43 PM
REPRESENTATIVE VANCE requested that DPS speak to this.
1:58:19 PM
KELLY HOWELL, Special Assistant, Office of the Commissioner,
Alaska Department of Public Safety, deferred the question to
Lisa Purinton.
1:59:19 PM
REPRESENTATIVE KURKA pointed out [on slide 6] the rate of rape
in 2014 for Alaska was substantially less than the rates in 2018
or 2020. He described it as "a dip" and questioned its
occurrence.
1:59:46 PM
DR. PAYNE stated that he has no insight into this occurrence.
He stated that there is an expectation for a variation in any
time series [in analysis], and it would be difficult to say
anything specific about a one-year change. He advised that, in
an academic sense, a one-year change usually does not indicate
much.
CHAIR CLAMAN restated Representative Vance's question for Lisa
Purinton. He pointed out the question had been about the
differences in the definition of rape in regard to the accuracy
of data reported by the state to the FBI.
2:01:03 PM
LISA PURINTON, Chief, Criminal Records and Identification
Bureau, Alaska Department of Public Safety, stated that the
bureau manages the state's crime reporting program. Part of the
program is annual training on the differences between the FBI's
definitions for offenses versus the state's definitions. In
order to understand national trends and have an "apples to
apples" comparison among states, she said, the FBI's definitions
have to be followed. She explained that the FBI audits the data
every three years, while the state audits every two years;
however, audits have not been done in the last three years
because of a reporting format change. She stated that in 2021
the FBI stopped accepting the summary format and only accepts
reporting done under the National Incident-Based Reporting
System (NIVRS). She said NIVRS produces more robust data, as it
breaks out the data fields in more detail. She stated that,
previous to the format change, the audits had made sure agencies
were following the FBI guidelines per the definition of rape.
2:03:22 PM
REPRESENTATIVE VANCE, with a follow-up question, pointed out
that [slide 6] shows the rate of rape in 2020 as 155 [per
population of 100,000]. She questioned whether the number DPS
reports to prosecutors would be lower.
MS. PURINTON responded that in the investigative process DPS
would follow the state's law for reporting a sex offense, not
the FBI's definition. She expressed the understanding that
because the FBI's definition is broader than the state statute,
DPS reports would probably show a lower number of sex offences
than [UCR].
2:04:28 PM
MS. PURINTON, in response to Chair Claman, stated that DPS
collects two types of crime statistics: UCR data and felony-
level sex offense data. She added that the felony-level sex
offense database follows the state definition of a sex offense
and would only include felony sex offenses. She catalogued the
[collected] data as: what was reported to law enforcement, what
was referred to the prosecutor's office, and what actually came
out of the referral to the prosecutor's office. In respect to
this, she said, "Right now we just have the front end of the
data. This is the information which was reported to law
enforcement." She stated that DPS is developing a project to
work with DOL to capture the life cycle of felony-level sex
crimes.
2:06:03 PM
DR. PAYNE, adding a comment to [Ms. Purinton's response], said
it would be too difficult to trace the entire course of a case
and produce the statistics concerning referrals versus cases
accepted for prosecution. He added this has been difficult
across the country. He expressed the opinion that this
information is important and said, "So it's good to hear that
DPS and DOL are both looking at it."
2:06:52 PM
DR. PAYNE moved to the graph on the last slide, which compares
states with similar demographics to Alaska. He pointed out that
these states have high indigenous populations; however,
demographically, they are very different from Alaska, and their
rape rates are closer to the national average. He pointed out
that the state with the next highest rape rate in the country is
one half of the rate in Alaska. He voiced the opinion that
because of the large difference, it is unlikely there is an
issue with the data. He stated that this tracks with the
information from AVS.
2:08:44 PM
REPRESENTATIVE EASTMAN expressed the understanding that Alaska
only deals with crimes reported to police agencies. He
questioned whether Alaska would be considered much better or
much worse at reporting crimes.
DR. PAYNE expressed the understanding that Alaska is worse. He
explained that AVS is a survey of respondents where individuals
are questioned, and rates are calculated from their responses.
He stated that AVS has nothing to do with police reports, and
its results show substantially higher [rape] rates in Alaska
compared to the national averages. He remarked, even if some of
the differences in UCR rates were the result of better reporting
to the police, this is not the entire explanation.
2:10:13 PM
DR. PAYNE, in response to a follow-up question, stated that he
does not have a theory for the reason that the national average
of rape is going down while Alaska's rate is going up. He said
there are many complicated factors which contribute to crime
trends, and it would be difficult to parse this out. He said
there is not a quick, "off-the-top of my head" explanation.
2:11:07 PM
CHAIR CLAMAN expressed the understanding that the pre-2013 data
was not being presented because of a change in the UCR
definition of rape. He questioned whether there had been a
significant increase in the rate of rape relative to the new
definition.
DR. PAYNE responded that the rate is substantially different
with the new definition, to the point that "it feels dishonest
to put them on the same plot." He explained that this is the
reason the graph is limited to 2013. He further said that as
late as the 1970s, Alaska's rates have been consistently higher
than national averages, even under the old definition;
therefore, this is not just a function of the definition change.
He stated that Alaska has remained higher than national averages
under UCR rape counts for the entirety of data available. He
reiterated that the graph represents the new definition from
2013 to 2020, while the old definition would go back to 1979.
DR. PAYNE, in response to a follow-up question from Chair
Claman, stated that there had been a similar increase in
national averages from the definition change. He attributed the
increase to the limitations in the old definition. For example,
he said, the old definition of rape only included sexual
intercourse between a female and a male, while the current
definition includes new classes of victims and acts. When the
definition changed in 2013, and through the transition period to
2016, substantial increases had been seen in the national
average. He noted that in any UCR presentation of rape
statistics, there is a hard break with prior years. Referencing
an earlier question, he suggested that the reason for some of
the volatility in the 2014 numbers could be because of this
transition.
2:14:58 PM
DR. PAYNE began his second PowerPoint presentation, titled
"Estimating the Impact of HB 5's Proposed Changes to AS
11.41.436(a) and AS 11.41.438" [hard copy included in the
committee packet]. The presentation focused on an analysis of
the potential impacts of [CSSSHB 5(STA)]. He stated that the
analysis was requested by the Alaska Criminal Justice
Commission. He stated that, per statute, AJiC provides
technical assistance to the commission and has access to its
data. On slide 4, he pointed out that the effects of
criminalizing behavior that is currently lawful cannot be
estimated, and this created a limitation for the analysis. In
example, he pointed out the proposed legislation would change
the definition of consent, and, in terms of criminal justice
outcomes, this change cannot be estimated; however, because
there was available data, the results of implementing the
proposed changes in Section 3 and Section 4 could be estimated.
2:17:48 PM
DR. PAYNE stated that a grid [seen on slide 6] had been created
to demonstrate the proposed changes in Section 3 and Section 4.
He said Section 3 would increase the punishment for offenders
who are 18 years old, or older, and who are 10 years older than
victims 13, 14, or 15 years of age. The felony charges would
increase from a minimum 5-year sentence to a minimum 20-year
sentence. This section would also criminalize the sexual
penetration of 16- and 17-year-old victims by offenders who are
at least 10 years older than the victim. He stated that the
grid represents a visualization of the comparison of the current
law with the proposed changes. He added that incest and the
abuse of authority are already covered by statute and not
included in the legislation. He continued that the proposed
changes would create unclassified felonies for some of the
offenses. He described unclassified felonies as the most
serious felonies in the state.
2:21:17 PM
DR. PAYNE stated that one of the large, overall findings for
AJiC was the complexity of the intersection of the existing
statute with the proposed changes. He stated that this was the
purpose of the grid. He provided a memo [included in the
committee packet] which explains this in detail.
2:22:07 PM
REPRESENTATIVE EASTMAN, referencing slide 6, expressed the
understanding that consensual sex between a 17-year-old person
and a perpetrator [who is 10 years older than that person] is
currently legal. He questioned whether the proposed legislation
would change the [act] to be the same class of felony as murder.
DR. PAYNE responded in the affirmative.
2:22:50 PM
DR. PAYNE moved to slide 7. He pointed out the changes in
Section 4 are similar to the changes in Section 3. The
difference, he said, is Section 4 refers to sexual contact,
while Section 3 refers to sexual penetration. He stated that
the language and the escalation of the penalties are very
similar, but the penalties for sexual contact are less than the
penalties for sexual penetration. He pointed out the proposed
changes in Section 4 are shown in the grid on slide 8.
2:24:59 PM
DR. PAYNE, moving to slide 9, stated that the Alaska Criminal
Justice Commission had requested information concerning the
impacts on criminal justice outcomes. He stated that DPS had
supplied AJiC with charge-level data for every arrest in the
state, and AJiC estimated sentences based on this. He said that
there were data limitations in the analysis. In example, he
said, there was no information concerning whether sentences with
multiple convictions were ordered to be served consecutively or
concurrently.
DR. PAYNE, moving to [slide 10], explained that another limiting
factor in the analysis was the unavailability of data concerning
the reduction of a sentence because of a prisoner's good
behavior. He clarified that the time ordered by the judge was
used in the analysis, not the actual amount of time served. He
said another assumption made was that the sentence length was
the only variable in criminal processing. He explained that
this excluded the effects of the decisions made by actors
involved in cases, including victims, police officers,
prosecutors, courts, and juries. He suggested that felony
classifications could cause each actor involved in a case to
make a different decision, but there is no way of knowing this;
thus, the assumption in the analysis was made that every actor
made the same decision. He added that the data sources
available to AJiC have no information on victims. He said this
is good for privacy, but because part of the equation has to do
with the age of the victim, it is bad for the analysis.
Considering the limitations, he expressed the hope that some of
the estimations may be useful.
2:29:16 PM
DR. PAYNE, moving to [slide 11], stated that an estimated 42
percent of the cases from 2015 to 2019 would have been impacted
by the proposed legislation. He discussed the variables in the
data which could impact cases, such as the use of force, the age
differential, sexual contact, sexual penetration, and victim
trauma. He reiterated that all the decisions made by all the
actors in a case are complex. He acknowledged that the analysis
simplifies many of these aspects.
2:31:57 PM
REPRESENTATIVE DRUMMOND questioned whether the offenders in the
impacted cases would have had longer jail sentences [per the
proposed legislation].
DR. PAYNE responded that if the proposed legislation had been
active [from 2015 to 2019], the offenders' ordered time would
have increased about 500 years [over 5 years], as seen on slide
12.
2:34:07 PM
REPRESENTATIVE DRUMMOND, with a follow up, said, "One hundred
years of extra prison time doesn't mean anything to me." In
consideration of the recent increase in the budget for the
Department of Corrections (DOC), she questioned the number of
offenders who would be staying in prison longer.
DR. PAYNE responded that 100 years of additional time would be
spread among 20- to 40-cases per year. He reiterated that
assumptions were made because victim data was unavailable.
2:35:54 PM
CHAIR CLAMAN estimated that, using the numbers provided, the
proposed legislation would increase incarceration time per
person by about three years.
2:36:28 PM
REPRESENTATIVE EASTMAN commented that time off for good behavior
"seems pretty standard." He questioned the inclusion of this in
the data.
DR. PAYNE responded that the calculation of time off for good
behavior is complex, and he would need to refer to legal experts
for this information. He expressed the understanding that the
impact of "good time" on actual days served can be up to one
third of an offender's sentence, but this would not accrue for
unclassified felonies, because time for unclassified felonies
cannot be reduced.
2:38:25 PM
CHAIR CLAMAN, with a follow-up comment, stated that time off for
good behavior for sex crimes is different from other crimes.
2:38:36 PM
REPRESENTATIVE KREISS-TOMKINS expressed the opinion that the
primary question should concern solving the epidemic of rape.
He questioned whether enhancing the criminalization would
actually reduce the occurrence of rape. He questioned whether a
cause-and-effect relationship has been addressed in similar
legislation in other states.
2:39:42 PM
DR. PAYNE responded that the question is important, but
difficult. He stated that, generally, research has found longer
prison terms do not affect recidivism.
2:42:05 PM
REPRESENTATIVE EASTMAN pointed out that crime would be reduced
for the period the [convicted] individual is in prison.
DR. PAYNE replied in agreement and said once an individual is
inside prison, he/she generally would not be able to commit
crimes outside of the correctional facility. He continued that
the question would be, "What happens after?" He stated there
are decades of research which point out that longer prison terms
do not result in fewer crimes. He offered the understanding
that cognitive-behavioral programs tend to work, and, in
general, incarcerating people for a longer term does not reduce
recidivism. He said this runs counter to what "I would like to
believe as well," and it took many years of research to believe
otherwise.
2:44:07 PM
DR. PAYNE moved to [slide 13] and summarized the impacts of
[CSSSHB 5(STA)] on criminal justice in Alaska. He cautioned
that changing a crime to an unclassified felony could incur a
series of different decisions on the part of actors involved in
the case. He added that a result of this may be an increase in
prosecution and personnel costs. He said this is not easily
estimated but a reasonable assumption.
2:45:18 PM
REPRESENTATIVE EASTMAN pointed out that individuals of a certain
age, such as senior citizens, would be less likely to commit
crimes after release from prison.
DR. PAYNE responded that in general this would be correct. He
expressed the opinion that the question is difficult because the
answer would involve a cost-benefit analysis. He offered to
follow up with information at a later time.
2:46:12 PM
REPRESENTATIVE DRUMMOND, referencing DOC's expenditures on
additional [programs] for sex offenders, expressed the opinion
that implementing [CSSSHB 5(STA)] would "keep more rapists off
the street for longer."
[HB 5 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| Memo to Alaska Criminal Justice Commission re House Bill 5 8.12.2021.pdf |
HJUD 4/13/2022 1:00:00 PM |
|
| FBI Uniform Crime Report Rape Statistics Presentation to HJUD Committee 4.13.2022.pdf |
HJUD 4/13/2022 1:00:00 PM |
|
| Estimating the Impact of House Bill 5’s Proposed Changes Presentation to HJUD Committee 4.13.2022.pdf |
HJUD 4/13/2022 1:00:00 PM |
|
| SB 7 v. B 2.18.2022.PDF |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM |
SB 7 |
| SB 7 Sponsor Statement v. B.pdf |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM HSTA 3/17/2022 3:00:00 PM |
SB 7 |
| SB 7 Sectional Analysis v. B.pdf |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM HSTA 3/17/2022 3:00:00 PM |
SB 7 |
| SB 7 Explanation of Changes v. A to v. B.pdf |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM HSTA 3/17/2022 3:00:00 PM |
SB 7 |
| SB 7 Supporting Document - APD and California Peace Officers Association Policies and Procedures 1.26.2021.pdf |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM HSTA 3/17/2022 3:00:00 PM |
SB 7 |
| SB 7 Supporting Document - Letters Received by 4.12.2022.pdf |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM HSTA 3/17/2022 3:00:00 PM |
SB 7 |
| SB 7 Supporting Document - Testimony Received by 4.12.2022.pdf |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM HSTA 3/31/2022 3:00:00 PM |
SB 7 |
| SB 7 Fiscal Note DPS-DET 2.18.2022.pdf |
HJUD 4/13/2022 1:00:00 PM HJUD 4/25/2022 1:00:00 PM |
SB 7 |