Legislature(2021 - 2022)GRUENBERG 120
05/04/2022 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB5 | |
| SB161 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 5 | TELECONFERENCED | |
| += | SB 161 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
1:09:08 PM
CHAIR CLAMAN announced that the first order of business would be
SPONSOR SUBSTITUE 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, adopted as the
work draft on 5/2/22, was the proposed committee substitute (CS)
for SSHB 5, Version 32-LS0065\R, Radford, 5/2/22, "Version R."]
1:09:41 PM
KIMBERLY KESSLER FERZAN, Earle Hepburn Professor of Law,
University of Pennsylvania Carey Law School, informed the
committee that she had written articles on sexual assault, and
served as an advisor to the American Law Institute's (ALI's)
Model Penal Code (MPC) sexual assault reform project; however,
the views she expressed were her own. She offered the following
prepared remarks [included in the committee packet], which read
as follows [original punctuation provided]:
Good afternoon. My name is Kimberly Kessler Ferzan. I
am the Earle Hepburn Professor of Law at the
University of Pennsylvania. I have written several
articles on sexual assault, and I serve as an Advisor
to the American Law Institute's Model Penal Code
Sexual Assault reform project. My views are my own
and not those of the ALI.
I wanted to speak for a few moments about the
complexities of criminalizing sexual assault, and some
of the choices the April 28th draft makes.
I want to talk about what consent is, distinguishing
assent from consent, and how factors that may "defeat
consent" are understood in the draft.
First, what is consent? Assuming there is no
coercion, deception, or incapacity, something I will
return to, what does one person have to do to make it
permissible to have sex with them?
Could make it just words: Must get "yes"
Could require a yes through "words and actions"
Could require a yes through "words and actions", but
allow inferences from inaction as well, "If no one
objects, these minutes are approved"
Internal: just willingness
If I see my neighbor crossing my lawn and I think,
that is okay with me, he no longer is trespassing. If
we are respecting my autonomy, then I can change
others rights and duties simply by what I choose to
allow.
You have "willingness"
This can be understood as the internal act view, where
how someone behaves gives evidence of this internal
choice. Or words and action that allow inferences
from silence (c)(2). Is silence evidence that the
person is saying yes, or is the person saying yes by
silence? No practical difference
Some feminists would urge a "words and actions"
standard that requires more. Let me explain that sort
of argument. You have defined sexual assault in the
second degree to include sexual penetration without
consent. Given Alaska's provision for default mental
states under 11.81.610, this means that the defendant
must be reckless as to lack of consent. That is, he
or she must consciously disregard a substantial and
unjustifiable risk that the victim is not consenting.
So, let's say that the victim does not resist and
allows the D to continue. She later says she was
experiencing frozen fright and he says he took her
acquiescence as consent. As long as he believes she
was consenting, he is not guilty. Even if you dropped
the mental state to negligence, if a reasonable person
believed there was consent (b/c people often consent
rather passively), he is not guilty. So, to protect
victims, and change social norms, some states create
affirmative consent standards, thereby requiring words
and action.
The biggest problem with doing this is that you are
trying to shift behavior without really giving anyone
notice of it. It becomes a trap for the unwary. It
is easy to do this with college kids whom you can make
go to orientation, but shifting social norms is more
difficult. Do you want to punish people with severe
felonies to change how people consent to sex? And
remember, this applies not just to inexperienced first
timers but to those in long term relationships as
well.
A second concern is that it is also extremely hard to
articulate what counts as a "yes" and can potentially
invite the very kind of dissection of the victim's
behavior that affirmative consent standards may wish
to avoid. Some scholars have worried that in practice
this subjects victims to substantial scrutiny.
Finally, with an affirmative consent standard, more
onus is put on defendants. If you think about how
affirmative consent would be shown, it would come
closer to requiring a defendant to convince a jury
that he had consent than to requiring the state to
prove its absence. There is then the question whether
it is fair to punish someone if the state has not
shown lack of consent beyond a reasonable doubt.
For these reasons, I would leave your "willingness"
formulation in place. (If I had my druthers, I might
go with "decision," "choice" or willed acquiescence"
to better distinguish consent from mere desires, but
"willingness" is tracking the current MPC draft.)
Here is a second question about consent that impacts
drafting. Consent is conceptually confusing because
we use this one word to mean two things. Sometimes we
mean this internal (or external) act and sometimes we
mean the internal (or external) act plus sufficient
conditions of freedom, knowledge, and capacity.
Sometimes, cases simply lack that internal or external
act. Having sex with a comatose person doesn't
involve either an internal or external yes. In other
cases, though, the person does "say yes" but it
doesn't count. So, a 12-year-old's enthusiastic yes
to sexual contact doesn't count. So, too, someone who
says yes at the point of a gun doesn't count as making
the action permissible. Some people would say that
there isn't consent in these cases, but we also in our
ordinary language say, "she consented at gunpoint" or
the teenager "consented." This makes things tricky.
Because the MPC locked in its definition of consent as
willingness, it then had to use the term "effective
consent" elsewhere.
You define consent as willingness, and then say that
consent is "ineffective" if induced by fraud, duress,
or deception. This means you are making the decision
to say that 12-year-olds do consent, but not
effectively. An alternative would be to say that
assent is willingness. And consent is assent without
any of the undermining conditions.
Why does this matter? First, consider the double duty
in your use of force provision criminalizing sex
"without consent of that person by the use of force or
the express or implied threat.
Notice this will cover both the person who is not
saying yes at all and is compelled, and the person who
says "yes" but only because there is a gun. It
arguably equivocates on what you mean by consent.
(Really a person who says yes at gunpoint is willing.)
Although courts might interpretively gloss this as
you'd like, it isn't quite precise of what consent
means.
The Model Penal Code draft defines consent as
willingness and then needs to back out by saying:
the act is without effective consent because: (i) the
actor uses or explicitly or implicitly threatens to
use physical force or restraint against anyone;
Many of us thought this led to clunky drafting. If
the consent is ineffective when there is force, then
you only need to discuss the force, not the consent
because consent doesn't count anyway. You just want
that the person submits or is compelled by force
Now, consider how you deal with defeaters like force,
fraud, more generally.
First, it is not clear how you want the specific
defeaters that you mention in the statute (sex when
the person is subject to a threat of force or is lied
to about a medical procedure) and your provision that
consent is ineffective if induced by force, duress, or
deception. MPC only has that the very provisions that
it defines in the statute count as force, fraud, or
incapacity.
To see how this matters, assume that Bob lies to Alice
and tells her that he loves her, and she has sex with
him because of that. Under your very limited
statutory provisions, it seems as though Alice was not
sexually assaulted because you have not spelled out
that kind of lie. But under your provision that
consent is ineffective if induced by force, duress, or
deception, she does not consent, and so Bob would be
guilty of sexual assault in the second degree. That
is your provision about ineffective consent, which
doesn't specify when it is ineffective could be
construed broadly. Indeed, if the way deception is
defined elsewhere in your code is used here, Bob would
be guilty of second-degree sexual assault. This would
make Alaska a significant outlier in the kinds of
cases that jurisdictions punish for deception. All
kinds of lies would then count, including for example,
if a spouse lies and tells her partner that she is not
sleeping with other men, if it is that representation
that leads to continued marital sex.
I hope this is helpful and I await your questions.
1:20:02 PM
CHAIR CLAMAN invited questions from committee members.
1:20:29 PM
REPRESENTATIVE DRUMMOND requested the definition of the term
"defeaters."
MS. KESSLER FERZAN stated that a "defeater" of consent referred
to a "yes" that "doesn't count." She provided the example of a
"yes" that was compelled by force; a "yes" compelled by deceit;
and a "yes" given at gunpoint.
1:22:06 PM
REPRESENTATIVE EASTMAN said he had heard of a scenario in which
a college took a "proactive approach" to affirmative consent by
requiring affirmative consent to every physical act. He asked
whether there was data to support that approach.
MS. KESSLER FERZAN shared her understanding that most colleges
have stronger affirmative consent standards, which she referred
to as "enthusiastic consent."
REPRESENTATIVE EASTMAN asked how to ascertain where Alaska
landed on the spectrum of embracing contemporary consent
concepts. He recalled that Ms. Kessler Ferzan had stated that
the Version R would make Alaska an outlier.
MS. KESSLER FERZAN clarified that Alaska would be an outlier in
terms of its bold stance on how deception was understood.
Because of the statutory language, "extraordinarily" broad lies,
such as "I love you" could be interpreted as sexual assault, she
said. She added that such an expansion would make jurisdictions
nervous, as they do not want to be in the business of policing
which kinds of lies would undermine consent. Regarding the
definition of consent, she conveyed that jurisdictions were "all
over the place" on affirmative consent standards, adding that it
was an ever-changing landscape.
CHAIR CLAMAN noted that he had sent Ms. Kessler Ferzan an
excerpt of the definition of consent from AS 11.81.900(b), in
addition to the general definitions in the criminal code.
1:28:59 PM
REPRESENTATIVE EASTMAN inquired about the harm that could result
from taking this "bold" approach [to the definition of consent].
MS. KESSLER FERZAN said it was a matter of whether [the
legislature] wanted every single lie to constitute sexual
assault each time it was material to the victim. Additionally,
whether [the legislature] wanted the courts in the business of
policing the kind of lies that were private and, in some sense,
the defendant's personal business. Ultimately, she said there
were questions about what kind of false impressions could count
as deception under this statute.
REPRESENTATIVE EASTMAN asked whether failure to disclose the
presence of a sexually transmitted disease (STD) would be
counted as deception under Version R.
MS. KESSLER FERZAN said in some jurisdictions, courts determined
whether a person was deceived to the nature and quality of the
act. For example, a medical procedure that was actually "a body
part." She explained that the courts attempted to define the
act, such as disease-free sex, rather than just sex.
1:33:50 PM
CHAIR CLAMAN asked about the pros and cons of the term
"willingness" versus "freely given." More specifically, he
asked which term tended to be more protective of victims in
terms of rape shield laws.
MS. KESSLER FERZAN said "freely given" was generally thought by
feminists to be more protective of victims; however, many people
wondered whether, in practice, that kind of scrutiny helped
victims as much as it was intended to. She provided examples.
CHAIR CLAMAN asked whether it was Ms. Kessler Ferzan's
perspective that the committee should consider removing or
altering the language "consent is ineffective if induced by
force, duress, or deception" on page 4, line 17.
MS. KESSLER FERZAN opined that the language could be stricken or
changed to "consent is ineffective if induced by force, duress,
or deception, as defined in" with references to the earlier
provisions related to force, deception, and duress that backed
undermined consent.
1:43:22 PM
CHAIR CLAMAN pointed out that an earlier version of the bill
made sexual assault without consent first degree sexual assault
whether induced by force or not. Alternatively, Version R
graded that classification by requiring the use of force in
first degree sexual assault and not requiring the use of force
in second degree sexual assault. He asked how other states were
approaching the classification of sexual assault with the use of
force versus no force and whether the general pattern was to
distinguish the two in terms of severity.
MS. KESSLER FERZAN said it was her general sense that force was
graded more severely [in other states], for which she advocated.
Additionally, she indicated that she was in favor of more layers
of complexity rather than fewer. She provided examples.
1:46:21 PM
REPRESENTATIVE EASTMAN inquired about the term "implied threat
of force" and how other states captured that concept.
CHAIR CLAMAN noted, for reference, that Representative Eastman
was referring to the language on page 1 and page 2 of [Version
R] that specifically discussed the use of force or the express
or implied threat of force.
MS. KESSLER FERZAN confirmed that the current MPC draft was
using the implied use of force. She posed two questions:
First, how to prove implied use of force after the fact; and
second, whether victims could mistakenly perceive something to
be a threat of force. On the latter, she discussed the
significance of the defendant's mens rea ["the intention or
knowledge of wrongdoing that constitutes part of a crime"], or
"mental state," and provided an example. She highlighted the
difficulty of "unpacking" an implied threat of force for the
jury.
1:50:48 PM
REPRESENTATIVE DRUMMOND asked whether "freely given" consent was
more protective of victims than willingness.
MS. KESSLER FERZAN said the question was empirical, as it varied
from case to case and used a "words and action standard," which
placed a "tremendous" amount of scrutiny on the victim's
behavior. For that reason, she believed that a words and action
standard was inherently dangerous for victims.
1:52:10 PM
CHAIR CLAMAN sought to clarify whether the words and action
standard was associated with the "freely given" version of the
law or the "willingness" standard in the current version.
MS. KESSLER FERZAN clarified that the words and action standard
was the definition in the older standard. She referenced
Section 6 [of CSSSHB 5(STA)], which defined "freely given" as an
agreement to cooperate in the act that was positively expressed
by word or action.
1:52:56 PM
REPRESENTATIVE DRUMMON asked Ms. Kessler Ferzen to repeat her
previous statement.
MS. KESSLER FERZAN restated the definition, which read as
follows:
(9) "consent" means a freely given, reversible
agreement specific to the conduct at issue; in this
paragraph, "freely given" means agreement to cooperate
in the act was positively expressed by word or action.
MS. KESSLER FERZAN expounded on the definition, explaining that
words like "yes" and "absolutely" would count as consent, in
addition to actions that, likewise, count as a "yes." She
provided an example. She reemphasized the potential downside of
implementing such a standard in that a lot of judgement would be
placed on the victim's behavior and whether it constituted a
yes. The potential upside, she added, was that silence would
not count as a "yes." She provided an example.
1:57:05 PM
REPRESENTATIVE DRUMMOND asked how to account for a victim who
froze in the act and could not respond.
MS. KESSLER FERZAN stated that the "freely given" standard would
capture frozen fright, as it would prohibit sex with another
person who has not said "yes" or engaged in behavior that says
"yes."
1:57:49 PM
REPRESENTATIVE VANCE asked whether coerced sex was addressed in
the bill. She provided an example of a person who was coerced
by the threat of revealing something to the public and asked
whether that was classified as rape in the bill.
MS. KESSLER FERZAN believed that was not covered in the bill.
She said the MPC dedicated an entirely different section for
coercive conduct.
REPRESENTATIVE VANCE sought to confirm that Ms. Kessler Ferzan
was recommending the inclusion of a separately graded section in
relation to coercion.
MS. KESSLER FERZAN suggested that an additional provision could
outline various types of coercion, either by specifying clear
rules or including a general standard.
1:59:59 PM
REPRESENTATIVE EASTMAN considered a scenario in which a person
gave affirmative consent to have sex but did not consent to a
specific sexual act that followed.
MS. KESSLER FERZAN said that would be tricky, given that consent
was defined as a willingness to engage in the conduct at issue
[in CSSSHB 5(STA)]. She added that there would always be "gray
area" questions that were hard to legislate.
2:03:31 PM
CHAIR CLAMAN sought further questions from committee members.
2:03:45 PM
REPRESENTATIVE DRUMMOND asked how many states were using the
word "willingness" and whether it was impacting the success of
convictions.
MS. KESSLER FERZAN said she did not know. The problem with
impacting convictions, she said, was that many hurtles exist for
victims of sexual violence before one even gets to the
substantive criminal law, which prevents victims from
comfortably coming forward.
2:05:16 PM
CHAIR CLAMAN compared sexual assault in the first versus second
degree. He shared his understanding that Ms. Kesser Ferzan was
discussing some level of conduct that may not be covered in the
second degree as penetration without consent. He asked her to
expound on that statement in further detail.
MS. KESSLER FERZAN said she was unclear on the statement in
question.
CHAIR CLAMAN provided further context, adding that the
conversation revolved around consent provided under duress. He
asked how that fit within the definition of sexual assault in
the first degree, which considers consent through the use of
force, and in the second degree, which includes everything else.
MS. KESSLER FERZAN provided several examples and concluded that
it was a question of whether to capture specificity for
scenarios in which a person has not said yes, or whether to
capture cases in which a person said the word "yes," but it was
made ineffective by contextual factors that were not specified
in statute.
CHAIR CLAMAN shared his understanding that page 4, line 17, of
Version R could be adding uncertainty and complexity, which may
require additional definitions for clarity or to be removed
entirely.
MS. KESSLER FERZAN confirmed that Representative Claman's
understanding was accurate.
2:10:35 PM
REPRESENTATIVE EASTMAN asked whether there was a recommended way
to address, in statute, the contradiction between the rape
shield law, which conceals certain information, and the "contact
at issue." He questioned how to strike a balance between the
"contact at issue" and implied circumstances and asked whether
the bill adequately addressed the tension between the two
concepts.
MS. KESSLER FERZAN said she was not familiar with Alaska's rape
shield law; however, under the federal rules of evidence,
evidence of past conduct was allowed to be introduced for the
particular defendant under the rape shield statute, which helped
to alleviate some of the tension referenced by Representative
Eastman. She provided an example.
2:14:39 PM
CHAIR CLAMAN announced that CSSSHB 5(JUD) was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Kimberly Ferzan CV February 2022.pdf |
HJUD 5/4/2022 1:00:00 PM |
|
| HB 5 Work Draft Committee Substitute v. R 5.2.2022.pdf |
HJUD 5/2/2022 1:00:00 PM HJUD 5/4/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Sectional Analysis v. R (Distributed by the HJUD Committee) 5.2.2022.pdf |
HJUD 5/2/2022 1:00:00 PM HJUD 5/4/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Summary of Changes v. W to v. R (Distributed by the HJUD Committee) 5.2.2022.pdf |
HJUD 5/2/2022 1:00:00 PM HJUD 5/4/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Fiscal Note DPS-DET 5.2.2022.pdf |
HJUD 5/4/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Fiscal Note DOC-IPO 5.3.2022.pdf |
HJUD 5/4/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| SB 161 v. B 3.18.2022.PDF |
HJUD 5/4/2022 1:00:00 PM |
SB 161 |
| SB 161 Fiscal Note OOG-DOE 3.4.2022.pdf |
HJUD 4/27/2022 1:00:00 PM HJUD 5/4/2022 1:00:00 PM |
SB 161 |
| SB 161 Amendment #1 HJUD (Withdrawn) 5.4.2022.pdf |
HJUD 5/4/2022 1:00:00 PM |
SB 161 |