05/02/2022 01:00 PM House JUDICIARY

             HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"                                                                         
                                                                                                                                
1:59:55 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that the  final 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."   [Before  the  committee  was  CSSSHB
(STA).]                                                                                                                        
                                                                                                                                
2:00:23 PM                                                                                                                    
                                                                                                                                
EMMA  POTTER, Staff,  Representative  Matt  Claman, Alaska  State                                                               
Legislature,  on behalf  of  Representative  Claman, presented  a                                                               
summary  of changes  [included in  the committee  packet] in  the                                                               
proposed  committee  substitute  (CS)  for SSHB  5,  Version  32-                                                               
LS0065\R, Radford,  5/2/22, ("Version R"), which  read as follows                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Version R  incorporates provisions  found in  the Model                                                                    
     Penal Code: Sexual Assault  and Related Offenses (MPC),                                                                    
     certain provisions  in Senate Bill 187  (2022) that was                                                                    
     put forward by  the Department of Law,  and the Montana                                                                    
     statute pertaining to consent.                                                                                             
                                                                                                                              
     Sections 1-3                                                                                                             
                                                                                                                                
     Version R  grades sexual assault in  the first, second,                                                                    
     and third  degree by including  a use of  force element                                                                    
     in  the  description of  sexual  assault  in the  first                                                                    
     degree (sexual  penetration) and  excluding the  use of                                                                    
     force element from sexual assault  in the second degree                                                                    
     (sexual  penetration). This  approach is  based on  the                                                                    
     grading  used  in  Senate   Bill  187.  Including  this                                                                    
     grading allows sexual assault with  the use of force to                                                                    
     be more easily prosecuted  while maintaining the use of                                                                    
     aggravating factors.                                                                                                       
                                                                                                                                
     With  this  change  reflected   in  Version  R,  sexual                                                                    
     assault  in  the first  degree  is  amended to  include                                                                    
     sexual penetration without consent  by use or threat of                                                                    
     force. Sexual  assault in the second  degree is amended                                                                    
     to  include sexual  contact without  consent by  use or                                                                    
     threat   of  force   and  sexual   penetration  without                                                                    
     consent. Sexual assault in the  third degree is amended                                                                    
     to include sexual contact without consent.                                                                                 
                                                                                                                              
     Section 4                                                                                                                
                                                                                                                                
     The use  of the word consent  in Version R is  based on                                                                    
     the updated MPC. Section 4  aligns with the most recent                                                                    
     proposal  under  consideration   by  the  American  Law                                                                    
     Institute  in  their  work related  to  sexual  assault                                                                    
     offenses.  An expression  of  lack  of consent  through                                                                    
     words or conduct is expressly  established in Version R                                                                    
     as meaning  there is no  consent. The requirement  of a                                                                    
     use of  force is removed  from statute and  the absence                                                                    
     of verbal or physical  resistance is established as not                                                                    
     establishing consent.  This provision  encompasses what                                                                    
     is frequently referred to as  the "frozen fear victim,"                                                                    
     the  victim  who  reacts to  the  experience  of  being                                                                    
     sexually  assaulted  by  freezing when  experiencing  a                                                                    
     sexual  assault.  This  response  is  an  observed  and                                                                    
     frequent psychological response.                                                                                           
                                                                                                                              
     Section 5                                                                                                                
                                                                                                                                
     Section 5 establishes consent  as willingness to engage                                                                    
     in the conduct  at issue. The definition  of consent is                                                                    
     amended  in Version  R to  use  the word  "willingness"                                                                    
     rather  than   "freely  given"   because  "willingness"                                                                    
     better  captures  the concept  that  a  person wants  a                                                                    
     specific  act, rather  than just  agrees to  it. Assent                                                                    
     can be tainted  or made ineffective based  on a variety                                                                    
     of  factors   including  the  use  of   force,  use  of                                                                    
     deception, and  an individual's incapacity as  a result                                                                    
     of an act of the defendant. Distributed by the Office                                                                      
                                                                                                                                
     Version  R  does  not  require  the  use  of  force  to                                                                    
     establish a  lack of consent. Version  R addresses rape                                                                    
     by fraud differently than Version  W. Montana and other                                                                    
     states  address  "rape  by  fraud"  by  making  consent                                                                    
     ineffective if induced by  force, duress, or deception.                                                                    
     This  phrasing,  based  on   the  language  in  Montana                                                                    
     statute, is found in Version R.                                                                                            
                                                                                                                              
     Section 6                                                                                                                
                                                                                                                                
     Section  6,  which  decreases   the  time  allowed  for                                                                    
     laboratories   to   wait   to   test   sexual   assault                                                                    
     examination kits, remain unchanged.                                                                                        
     Version R removes sexual abuse  of a minor in the first                                                                    
     degree  and  sexual abuse  of  a  minor in  the  second                                                                    
     degree, from  the bill (previously found  in Sections 3                                                                    
     and 4 of Version W).                                                                                                       
                                                                                                                                
2:03:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SNYDER  inquired about the rationale  for removing                                                               
"knowingly  causing a  person to  come into  contact with  semen"                                                               
from the definition of sexual contact.                                                                                          
                                                                                                                                
CHAIR CLAMAN  provided the legislative  history of  the provision                                                               
pertaining to the "contact with  semen" without consent.  He said                                                               
the intent was  to leave the law  intact, such as it  was when it                                                               
was implemented by a prior legislature.                                                                                         
                                                                                                                                
REPRESENTATIVE SNYDER asked how  the offense was classified under                                                               
current law.                                                                                                                    
                                                                                                                                
2:04:51 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 2:04 p.m. to 2:06 p.m.                                                                       
                                                                                                                                
2:06:29 PM                                                                                                                    
                                                                                                                                
CHAIR   CLAMAN  offered   to  follow   up   with  the   requested                                                               
information.                                                                                                                    
                                                                                                                                
2:06:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   EASTMAN   asked   whether  the   definition   of                                                               
"deception"  would  be  provided  in the  bill  or  elsewhere  in                                                               
statute.                                                                                                                        
                                                                                                                                
CHAIR CLAMAN  clarified that the definition  of "deception" would                                                               
be subject to common usage.                                                                                                     
                                                                                                                                
2:07:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SNYDER  moved  to adopt  the  proposed  committee                                                               
substitute  (CS)  for  SSHB   5,  Version  32-LS0065\R,  Radford,                                                               
5/2/22, as the working document.                                                                                                
                                                                                                                                
2:08:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN objected.                                                                                                
                                                                                                                                
A roll  call vote was  taken.  Representatives  Drummond, Snyder,                                                               
Kreiss-Tomkins, Vance, and Claman voted  in favor of the proposed                                                               
CS   for   SSHB   5,  Version   32-LS0065\R,   Radford,   5/2/22.                                                               
Representatives Eastman  and Kurka voted against  it.  Therefore,                                                               
Version R was adopted by a vote of 5-2.                                                                                         
                                                                                                                                
2:08:55 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that SSHB 5 was held over.