Legislature(2021 - 2022)GRUENBERG 120
05/06/2022 10:30 AM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB5 | |
| HB325 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 325 | TELECONFERENCED | |
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
10:44:12 AM
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").]
CHAIR CLAMAN gave Legislative Legal Services permission to make
technical and conforming changes to the bill.
10:45:03 AM
CHAIR CLAMAN moved to adopt Amendment 1 to SSHB 5, Version R,
labeled 32-LS0065\R.1, Radford, 5/3/22, which read:
Page 4, line 5:
Delete "AS 11.41.410 - 11.41.440"
Insert "AS 11.41.410 - 11.41.427"
REPRESENTATIVE DRUMMOND objected for the purpose of discussion.
10:45:25 AM
EMMA POTTER, Staff, Representative Matt Claman, Alaska State
Legislature, on behalf of Representative Claman, prime sponsor,
explained that Amendment 1 would clean up the bill by changing
the reference to [prosecutions where consent is at issue]. More
specifically, the proposed amendment would remove the statutory
reference to sexual abuse of a minor crimes on page 4, line 5 of
Version R, as consent was not a contributing factor.
REPRESENTATIVE DRUMMOND removed her objection. There being no
further objection, Amendment 1 was adopted.
10:46:16 AM
CHAIR CLAMAN moved to adopt Amendment 2 to SSHB 5, Version R,
labeled 32-LS0065\R.3, Radford, 5/5/22, which read:
Page 4, lines 19 - 20:
Delete all material and insert:
"(11) "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."
Page 4, lines 25 - 27:
Delete all material.
Renumber the following bill sections accordingly.
Page 5, line 22:
Delete "AS 26.05.890(h)(2), as amended by sec. 8
of this Act,"
Page 5, line 23:
Delete "sec. 9"
Insert "sec. 8"
Page 5, line 24:
Delete "sec. 11"
Insert "sec. 10"
Page 5, line 25:
Delete "secs. 1 - 9 and 11"
Insert "secs. 1 - 8 and 10"
Page 5, line 26:
Delete "Section 10"
Insert "Section 9"
REPRESENTATIVE DRUMMOND objected for the purpose of discussion.
MS. POTTER said Amendment 2 would change the definition of
consent in Version R to the previous definition in Version W
[CSSSHB 5(STA)], which contained the "freely given" definition
of consent. The change was based on the explanation from
invited testifiers that a definition of consent containing the
phrase "freely given" was more protective of victims in the
prosecution of these cases.
10:46:58 AM
REPRESENTATIVE EASTMAN suggested that the proposed amendment
would define the lack of affirmative expressed action as the
absence of consent, which would criminalize socially permissible
conduct. He believed that the proposed definition of consent
would protect some victims at the expense of creating new
victims.
10:49:52 AM
REPRESENTATIVE GERAN TARR, Alaska State Legislature, as prime
sponsor of SSHB 5, emphasized the importance of including the
phrase "word or action" in the definition of consent to capture
healthy, typical, consenting behavior by two partners.
10:52:28 AM
CHAIR CLAMAN asked how the definition of "freely given" [on
lines 4-5 of Amendment 2] would assist in the "frozen fear"
response, which was documented to be a real issue in sexual
assaults.
REPRESENTATIVE TARR shared her understanding that Section 4 of
Version R, which outlined the elements of consent, captured the
freeze response.
REPRESENTATIVE EASTMAN pointed out that Amendment 1 had been
adopted by a passive response, [in other words, no objection]
from the committee. He asked whether the legislature's code of
conduct should be reformed in line with the new definition of
consent for the purpose of consistency.
REPRESENTATIVE TARR said Representative Eastman's suggestion
went far beyond the scope of the legislation.
CHAIR CLAMAN, in response to Representative Eastman, pointed out
that Alaska was faced with the highest sexual assault rates in
the country, which he characterized as "beyond embarrassing."
He commented on the notion of treating consent to sexual conduct
in the same way as consenting to a legislative motion. He
shared his belief that the proposed definition would be an
improvement to the existing statutory language.
10:58:02 AM
CHAIR CLAMAN sought questions from committee members.
10:58:40 AM
REPRESENTATIVE VANCE referenced the cultural perception that
"silence is consent." She shared an example and pondered how to
convey that silence is no longer consent. She asked, "Which
comes first, society or the law?"
CHAIR CLAMAN asked whether Representative Vance was suggesting
that the second phrase of the consent definition went too far by
defining ["freely given"] as affirmative consent.
REPRESENTATIVE TARR defined the "FRIES" acronym as freely given,
reversible, informed, enthusiastic, specific. She said she
believed that the phrase "positively expressed through word or
action" captured the FRIES concept.
11:03:31 AM
REPRESENTATIVE KURKA considered a scenario in which a claim of
rape was manufactured against a former romantic partner after
the relationship soured. He asked how that situation would be
resolved.
REPRESENTATIVE TARR pointed out that the prosecution was tasked
with evaluating whether the crime could be proved beyond a
reasonable doubt. The process, she said, was effectually a
layer of protection against frivolous crimes and misapplication
of the law.
CHAIR CLAMAN invited Ms. Schroeder to comment on the impact of
deleting the phrase "'freely given' means agreement to cooperate
in the act was positively expressed by word or action."
11:08:37 AM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law (DOL), said the definition of "freely given"
provided further guidance and clarity to the prosecutor. The
importance of including "word or action," she added, was to
capture normal behavior in healthy relationships. She noted
that the descriptors in Section 4 added further context on how
it would be applied. She referred the committee to page 4, line
10 and addressed the totality of the circumstances. She
continued to explain that the prosecutor must prove that the
defendant was reckless as to the lack of consent. She read the
legal definition of "reckless."
11:12:10 AM
REPRESENTATIVE EASTMAN proposed Conceptual Amendment 1 to
Amendment 2 to SSHB 5, Version R, such that the phrase "specific
to the conduct at issue" would be deleted on page 1, lines 3-4.
REPRESENTATIVE DRUMMOND objected for the purpose of discussion.
11:12:42 AM
REPRESENTATIVE EASTMAN opined that Amendment 2 was "doing too
much" by effectively introducing chronology into the definition
of consent with the phrase "specific to the conduct at issue".
He opined that the language drew a distinction between
consenting to previous conduct and consenting to the conduct at
issue, which effectively criminalized activity that was
consensual. He provided an example.
MS. SCHROEDER contended that Amendment 2 captured the concern
described by Representative Eastman. She explained that as
drafted, Amendment 2 provided that the conduct must be consented
to at the time and must be a type of conduct that the individual
wants to engage in. She argued that the example provided by
Representative Eastman would support a reckless mental state.
Ultimately, she believed that the language in Amendment 2 was
appropriate as drafted.
11:16:39 AM
REPRESENTATIVE DRUMMOND spoke in opposition to Conceptual
Amendment 1 to Amendment 2 based on invited testimony from the
previous bill hearing. She opined that "specific to the conduct
at issue" should be retained.
CHAIR CLAMAN opined that removing the phrase "specific to the
conduct at issue" would invite additional problems in terms of
the timing of consent and whether it could be revoked at a later
time. He shared an example.
REPRESENTATIVE EASTMAN shared his belief that individuals could
get "caught up" in the legal definition [of consent]. He opined
that the committee was unnecessarily focused on prosecutions and
convictions while overlooking other implications.
11:21:24 AM
A roll call vote was taken. Representatives Kurka and Eastman
voted in favor of Conceptual Amendment 1 to Amendment 2.
Representatives Vance, Drummond, Snyder, Kreiss-Tomkins, and
Claman voted against it. Therefore, Conceptual Amendment 1 to
Amendment 2 failed by a vote of 2-5.
11:22:13 AM
REPRESENTATIVE EASTMAN moved to adopt Conceptual Amendment 2 to
Amendment 2, which would replace the semi-colon [on page 1, line
4] with a period and delete the words that followed [on lines 4-
5].
CHAIR CLAMAN sought to confirm that the proposed conceptual
amendment would remove the definition of "freely given".
REPRESENTATIVE EASTMAN answered yes.
REPRESENTATIVE DRUMMOND objected.
REPRESENTATIVE EASTMAN observed that the committee was focusing
all of its attention on current victims. He argued that
Conceptual Amendment 2 to Amendment 2 would expand the focus to
those "who were not yet victims," meaning people who believe
that the absence of an expressed positive action does not mean a
failure of consent. He argued that there were many
circumstances where consent was not positively expressed by word
or action and expressed concern that the definition of consent
in Amendment 2 could be used as leverage.
REPRESENTATIVE DRUMMOND maintained her objection.
11:26:18 AM
A roll call vote was taken. Representatives Kurka and Eastman
voted in favor of Conceptual Amendment 2 to Amendment 2.
Representatives Vance, Drummond, Snyder, Kreiss-Tomkins, and
Claman voted against it. Therefore, Conceptual Amendment 2 to
Amendment 2 failed by a vote of 2-5.
CHAIR CLAMAN sought final comment from committee members on
Amendment 2.
11:27:17 AM
REPRESENTATIVE DRUMMOND pointed out that the committee had not
addressed Amendment 2 in its entirety. She inquired about the
language following lines 1-5.
MS. POTTER said the rest of the proposed amendment provided
conforming changes to implement the new definition of consent.
11:29:32 AM
REPRESENTATIVE VANCE expressed her hope that the new definition
of consent would better balance "the scales of justice," help
prosecutors clearly articulate the conduct, and bring justice to
both parties involved in these cases.
11:31:04 AM
REPRESENTATIVE EASTMAN expressed his strong opposition to
Amendment 2 due to his belief that it would introduce a coercive
element into relationships. He opined that the proposed
definition of consent could be used as leverage against the
individual who initiated the sexual act and be used as a tool of
discord. Further, he suggested that redefining the word
"consent" would not offer a solution to the problem with rape in
Alaska, as it was not the cause of the issue to begin with.
CHAIR CLAMAN stated his belief that implementing an affirmative
consent model would place more focus on the victim and less
focus on the defendant while giving additional tools to the
defense team. Ultimately, he opined that the new definition
would provide a basis upon which victims of crime could come
forward with their claim.
11:34:57 AM
A roll call vote was taken. Representatives Vance, Drummond,
Snyder, Kreiss-Tomkins, and Claman voted in favor of Amendment
2. Representatives Kurka and Eastman voted against it.
Therefore, Amendment 2 was adopted by a vote of 5-2.
11:35:38 AM
CHAIR CLAMAN moved to adopt Amendment 3 to SSHB 5, Version R,
labeled 32-LS0065\R.2, Radford, 5/5/22, which read:
Page 4, line 16:
Delete ";"
Insert "."
Page 4, line 17:
Delete all material.
REPRESENTATIVE DRUMMOND objected for the purpose of discussion.
11:36:01 AM
MS. POTTER indicated that Amendment 3 would delete [paragraph]
(5) on page 4, line 15 of Version R, which stated that consent
is ineffective if induced by force, duress, or deception.
REPRESENTATIVE DRUMMOND removed her objection. There being no
further objection, Amendment 3 was adopted.
CHAIR CLAMAN sought final comment from committee members on SSHB
5, Version R, as amended.
11:37:13 AM
REPRESENTATIVE KREISS-TOMKINS said he felt much more comfortable
with the proposed legislation, as amended.
REPRESENTATIVE SNYDER remarked that she was glad for the
evolution of the bill and happy for the opportunity to move it
forward.
REPRESENTATIVE DRUMMOND stated that she was more comfortable
with the proposed legislation, as amended.
REPRESENTATIVE VANCE said she would let her previous comments
stand.
REPRESENTATIVE EASTMAN expounded on his objection to the bill,
citing "a crucial area" of conflict that had yet to be resolved.
He opined that the committee was "equivocating" by attempting to
change society by redefining the fundamental definition of
consent and thereby the definition of rape. He further believed
that the bill criminalized conduct that was not criminal at
present. He reiterated his belief that changing the definition
of consent would be felt across "the spectrum" and impact
relationships both positively and negatively.
REPRESENTATIVE KURKA said he would be objecting to the bill
moving forward, citing "conflict" in the legislation.
11:41:39 AM
REPRESENTATIVE TARR, in response to Representative Eastman's
comments, pointed out that the bill was attempting to more
effectively define the standard for acceptable behavior. She
highlighted the prevention and education opportunities that
could come from the bill and expressed her hope that the end
goal would be a reduction of incidents of sexual violence in
Alaska.
11:43:39 AM
REPRESENTATIVE DRUMMOND moved to report CSSSHB 5, Version 32-
LS0065\R, Radford, 5/2/22, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
REPRESENTATIVE EASTMAN objected.
11:44:03 AM
A roll call vote was taken. Representatives Vance, Drummond,
and Claman voted in favor of the motion. Representative Eastman
voted against it. Therefore, CSSSHB 5(JUD) was reported out of
the House Judiciary Standing Committee by a vote of 3-1.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 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 DOA-PDA 5.3.2022.pdf |
HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Fiscal Note DOA-OPA 5.3.2022.pdf |
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 |
| 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 DPS-SCDL 2.26.2022.pdf |
HJUD 3/4/2022 1:00:00 PM HJUD 3/9/2022 1:00:00 PM HJUD 3/30/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Fiscal Note LAW-CRIM 5.5.2022.pdf |
HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 Fiscal Note JUD-ACS 5.6.2022.pdf |
HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 5 v. R Amendments #1-3 HJUD 5.6.2022.pdf |
HJUD 5/6/2022 10:30:00 AM |
HB 5 |
| HB 325 v. A 2.16.2022.PDF |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 325 |
| HB 325 Sponsor Statement v. A 2.17.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM SJUD 5/16/2022 1:30:00 PM |
HB 325 |
| HB 325 Supporting Documents 2.17.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM SJUD 5/16/2022 1:30:00 PM |
HB 325 |
| HB 325 Supporting Document - ANDVSA Letter 5.3.2022.pdf |
HJUD 5/6/2022 10:30:00 AM SJUD 5/16/2022 1:30:00 PM |
HB 325 |
| HB 325 Fiscal Note DPS-DET 2.19.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 325 |
| HB 325 Fiscal Note DOC-IDO 2.25.2022.pdf |
HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 325 |
| HB 325 Fiscal Note LAW-CRIM 2.18.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 325 |
| HB 5 v. R Amendments #1-3 HJUD Final Votes 5.6.2022.pdf |
HJUD 5/6/2022 10:30:00 AM |
HB 5 |