Legislature(2023 - 2024)GRUENBERG 120
01/27/2023 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB38 | |
| HB11 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 38 | TELECONFERENCED | |
| *+ | HB 11 | TELECONFERENCED | |
HB 11-CRIME: ASSAULT IN THE PRESENCE OF A CHILD
1:49:09 PM
CHAIR VANCE announced that the next order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 11, "An Act establishing
the crime of assault in the presence of a child."
1:51:13 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, prime
sponsor, introduced SSHB 11. He contextualized the bill and
paraphrased the sponsor statement [included in the committee
packet], which read as follows [original punctuation provided]:
HB 11 seeks to make the act of assault in the presence
of a child a class A misdemeanor under Alaska law,
following suit with Anchorage Municipal Code 8.10.050,
Family Violence. Committing the crime of assault with
the reckless disregard for the presence of a child or
children can have a long lasting, negative impact. A
child's involvement can range from overhearing or
witnessing confrontations, to being physically injured
during the course of an altercation.
A 2022 report by the Alaska Criminal Justice
Commission shows 48% of adult women in Alaska have
experienced intimate partner violence in their
lifetime, an increase from the rates reported in 2010
and 2015. While it's hard to quantify how many
children are exposed to abuse, a 2020 report shows
that five percent of mothers of three-year-old
children reported that their child was present during
a domestic violence assault. HB 11 addresses the
critical need to protect children from the effects of
heinous crimes which can influence all domains of
child functioning, including social emotional,
physical, cognitive, and behavioral health.
Under current law, domestic violence committed in the
physical presence or hearing of a child under 16 years
of age may result in a sentence above the presumptive
range as provided for in AS 12.55.155(c)(18)(C). HB 11
adds an additional charge in hopes of deterring acts
of violence, but specifically in the presence of a
child or children. This bill is crucial for preventing
and mitigating the trauma experienced by a child who
witnesses assaultive behaviors. I urge you to support
HB 11.
REPRESENTATIVE JOSEPHSON indicated that the proposed legislation
would provide protection to children who had been traumatized by
living with an abusive person and witnessed violence perpetrated
against a parent or caretaker. He noted that the bill would not
fix the problem of domestic violence in Alaska; nonetheless, he
hoped it would send a serious public service announcement to
those engaging in domestic violence. He discussed the felony
sentencing code provided under AS 12.55.155 [Factors in
aggravation and mitigation], explaining that the aggravator
would be broadened under SSHB 11. He provided an example.
1:58:29 PM
REPRESENTATIVE JOSEPHSON reiterated that the bill was inclusive
of domestic violence crimes but was not a domestic violence
bill. He referenced mandatory arrests for crimes involving
domestic violence, specifically the four-part test that the
arresting officer must comply with. He said he had considered
putting the four-pronged test into this legislation to guide
overzealous officers on who to arrest in these circumstances.
This idea stemmed from a concern about women - who appear to be
the culprit but are actually the victim that may, out of an
eagerness to move on with their lives, take a no contest plea.
Ultimately, he said, putting the four-part test into SSHB 11
would be redundant, as it already existed under Title 18
[Health, Safety, Housing, Human Rights, and Public Defender].
He discussed another issue regarding situations in which
juveniles were charged. His response was that smart prosecutors
and smart police officers would be reasonable regarding the
application of the law.
2:09:16 PM
REPRESENTATIVE JOSEPHSON concluded by discussing the decision
made in Linden v. Municipality of Anchorage. Ultimately, he
said, it was about recognizing the emotional harm caused to
children who witness such offenses.
2:09:30 PM
ANNELIESE ROBERTS, Staff, Representative Any Josephson, provided
a PowerPoint presentation, titled "House Bill 11, 'An Act
establishing the crime of assault in the presence of a child,'"
on behalf of Representative Josephson, prime sponsor. Beginning
on slide 2, she stated that the bill would establish a class A
misdemeanor for assault in the presence of a child, similar to
Municipal Code 8.10.050 Family Violence. She noted that the
existing aggravator was only applicable to a felony under
current statute, whereas the aggravator in SSHB 11 would be
applicable to either, as an additional charge. She continued to
slide 3, which featured bar graphs showing domestic violence
cases filed statewide. She highlighted the peak in domestic
violence (DV) cases in FY 19. She explained that assault and DV
often go hand-in-hand, as nearly 70 percent of assault cases
include at least one DV charge. She discussed details of family
violence on slide 4, which read as follows [original punctuation
provided]:
A 2020 report showed 19.1% of adults being exposed to
intimate partner violence of a parent when they were a
child.
In a 2020 survey conducted with approximately 1,000
mothers, five percent reported that their three-year-
old child saw violence or physical abuse.
From 2016 through 2018 the number of intimate partner
violence victimizations in the United State increased
42%.
2:11:43 PM
MS. ROBERTS cited AS 47.17.290 on slide 5, noting that 43
states, including Alaska, included exposure to DV in the
definition of maltreatment. Proceeding to slide 6, she reported
that nine states consider DV in the presence of a child an
"aggravating circumstance" in sentencing guidelines.
"Aggravating circumstances" referred to the factors that
increase the severity or culpability of a criminal act.
Continuing to slide 7, she noted that six other states filed
separate charges when a child witnesses DV or assault, similar
to the intent of SSHB 11. She outlined the immediate reactions
to intimate partner violence on slide 9, which read as follows
[original punctuation provided]:
• Generalized anxiety
• Sleeplessness
• Nightmares
• Difficulty concentrating
• High activity levels
• Increased aggression
• Increased anxiety about being separated from
a parent
• Intense worry about their safety or the
safety of a parent
2:12:15 PM
MS. ROBERTS highlighted the long-term effects of intimate
partner violence on slide 10, which read as follows [original
punctuation provided]:
Physical health problems
Behavior problems in adolescence (e.g., delinquency,
alcohol or substance abuse)
Emotional difficulties in adulthood (e.g., depression,
anxiety, PTSD)
MS. ROBERTS proceeded to slide 11 and listed various reactions
[to witnessing DV or assault] according to age. She concluded
on slide 8, which outlined the following prosecutorial
discretion [original punctuation provided]:
Can be charged with a felony or misdemeanor
Can be charged with multiple counts
Can be charged in lieu of aggravator
(12.55.155(c)(18)(C))
Applies to any type of assault under 11.41, not just
domestic violence
Can be charged in any location if the crime of assault
is committed in the presence of a child (in a park,
for example)
2:13:42 PM
CHAIR VANCE asked whether data showed that engaging in DV or
assault in the presence of a child would likely progress into
victimizing that child with physical harm.
MS. ROBERTS answered not that she was aware of; however, she
offered to analyze that question in further detail.
2:14:39 PM
REPRESENTATIVE CARPENTER inquired about the penalty for a first-
time offender of a class A misdemeanor.
REPRESENTATIVE JOSEPHSON shared his understanding that a
misdemeanor carried a maximum penalty of one year. He noted
that it would also depend on the criminal history of the
defendant.
REPRESENTATIVE CARPENTER inquired about the effect of excluding
minors from the applicability of the proposed legislation.
REPRESENTATIVE JOSEPHSON said, in some respects, it wouldn't be
that substantial.
2:18:27 PM
CHAIR VANCE asked how "presence" was defined. She considered a
scenario in which a wall was separating the domestic violence
from the child, or the child witnessed an assault on FaceTime.
REPRESENTATIVE JOSEPHSON said he had consulted with a former
municipal prosecutor, in addition to DOL and Legislative Legal
Services, on this question. He concluded that "presence" should
be defined as physically present or within hearing.
CHAIR VANCE asked why the bill sponsor had taken a broader
approach to that definition.
REPRESENTATIVE JOSEPHSON, referring to Municipal Code 8.10.050,
argued that the proposed legislation more adequately framed the
word "presence" in comparison.
2:22:21 PM
REPRESENTATIVE ALLARD recalled that Representative Josephson had
stated that the crime did not have to take place at the home of
the victim or the perpetrator. She asked whether that was
accurate.
JOSEPHSON confirmed.
REPRESENTATIVE ALLARD considered several examples involving
pornography and asked how they related to the bill.
REPRESENTATIVE JOSEPHSON pointed out that Representative Allard
was describing pornography whereas the bill addressed the
witnessing of an assault. He clarified that viewing pornography
was not the same as witnessing an assault.
REPRESENTATIVE ALLARD considered an example in which two parents
were arguing in front of a child. She asked whether that would
be considered an [assault].
REPRESENTATIVE JOSEPHSON discussed "imminent physical threat of
injury," explaining that the threat of violence could be
considered an assault. He emphasized that that an individual
could be assaulted without being touched; however, the scenario
posed by Representative Allard did not sound like an assault, he
opined.
REPRESENTATIVE ALLARD considered an example in which an
altercation arose in the Municipality of Anchorage (MOA)
Assembly chamber while children were present. She asked whether
this scenario would fall underneath the behavior captured in
SSHB 11.
REPRESENTATIVE JOSEPHSON reiterated that it could if one of the
individuals involved in the altercation was charged with
assault.
2:26:04 PM
RESPRESENTATIVE GRAY inquired about the typical sentencing
ranges for assault in the first degree, second degree, third
degree, and fourth degree. Additionally, he asked whether the
sentences would be extended, and by how much, if SSHB 11 were to
pass.
2:27:26 PM
CHAIR VANCE noted that the [degree of sentencing] would be
addressed in a forthcoming hearing. She directed Representative
Josephson to speak specifically to the purpose of criminalizing
assault in the presence of a child and adding it to AS 11.41.
REPRESENTATIVE JOSEPHSON stated that the purpose of the law was
to recognize the separate experience of children who witness
assault. He added that the emphasis was on the protection of
children. In response to Representative Gray, he clarified that
the bill would not be adding to the underlying assault charge or
increasing that in any way, as it existed in its own silo;
however, the offender would face a secondary charge for acting
on that behavior in front of a child. He reported that assault
in the fourth degree resulted in a misdemeanor and no more than
one year [in prison]; assault in the third degree resulted in a
class C felony and no more than five years [in prison]; assault
two resulted in a class B felony and not more than 10 years [in
prison]; and assault in the first degree resulted in excess of
50 years.
2:30:36 PM
REPRESENTATIVE GRAY expressed concern about charging minors. He
suggested that removing minors from the applicability could be a
solution; nevertheless, he would still have concerns about two
18-year-olds who got into a fight in front of classmates.
REPRESENTATIVE JOSEPHSON pointed out that, legally, 18-year-olds
were treated as adults. He reminded the committee that, as a
matter of policy, under AS 12.55.155 [Factors in aggravation and
mitigation], the law was concerned with children up to age 16
being exposed to crime. Further, he emphasized that the
criminal code remained the same when applied to a child, adding
"there's no 'murder in the first degree by a child,' there's
just 'murder in the first degree.'" He said the differing
factor in juvenile matters was how the cases were processed.
2:33:04 PM
REPRESENTATIVE C. JOHNSON shared his understanding that [assault
in the presence of a child] could only be triggered if an
underlying assault charge was brough against the offender. He
pointed out that, absent charges being filed, children were
still experiencing trauma. He suggested that the bill did
nothing to address the trauma and asked whether the bill sponsor
would consider making assault in the presence of a child
independent of the underlying assault charges. He asked, "Why
couldn't it be a crime if some charges aren't filed, but its in
the presence of a child?"
REPRESENTATIVE JOSEPHSON indicated that effectually, the
proposed legislation was criminalizing the existing behavior
outlined in Title 47 [Welfare, Social Services, and
Institutions], the maltreatment code. He pointed out that
theoretically, the situation expressed by Representative C.
Johnson could result in a call to the Office of Children's
Services (OCS), Department of Family and Community Services
(DFCS). However, he acknowledged that sometimes, offenses were
unreported for a variety of reasons. He reiterated his belief
that the MOA Assembly was correct in 2000 when they deemed
assault in the presence of a child as a separate offense. He
confirmed that the defendant was protected in that, to be
convicted of assault in the presence of a child, there must be
an underlying assault charge to begin with.
2:35:59 PM
REPRESENTATIVE GROH asked whether the new crime established
under SSHB 11 would essentially be "trade bait" in discussions
between prosecutors and defense attorneys for a charge to be
dropped in exchange for a plea of guilty or no contest.
REPRESENTATIVE JOSEPHSON said that could be the effect; however,
the intent of the bill was to protect children from exposure to
the event.
REPRESENTATIVE CARPENTER agreed with the concern expressed by
Representative Groh. He recommended drafting the bill so that
the class A misdemeanor [assault in the presence of a child]
would be independent of the underlying assault charge to
emphasize that the behavior was unacceptable.
REPRESENTATIVE JOSEPHSON contended that the charge would not
exist without a predicate assault. He said he liked the
sentiment shared by Representative Carpenter; however, he was
unsure about the practicability of the suggestion.
2:42:14 PM
CHAIR VANCE asked why the new crime was classified as a class A
misdemeanor.
REPRESENTATIVE JOSEPHSON opined that it would be unusual to
classify the ancillary charge more severely than the underlying
charge.
REPRESENTATIVE CARPENTER opined that two people fighting in the
presence of a child was worse than if they were fighting alone
or in front of adults and should be penalized as such. He
suggested that the new crime should be classified as a felony to
emphasize the value placed on children.
REPRESENTATIVE JOSEPHSON indicated that the decision would be a
policy call. He theorized that if four children witnessed the
assault, the offender could be charged with 5 counts: one count
for the underlying assault and four additional counts for each
child present.
2:45:02 PM
CHAIR VANCE requested additional information to be shared at the
next bill hearing regarding the penalization for assaulting a
child in comparison to assault in the presence of a child. She
thanked the bill sponsor for his presentation.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 38 - Sponsor Statement.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 38 |
| HB 38 - v.A.PDF |
HJUD 1/27/2023 1:00:00 PM |
HB 38 |
| HB 38 - Sectional Analysis.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 38 |
| HB 38 - HJR 2 Presentation 1.25.23.pdf |
HJUD 1/27/2023 1:00:00 PM HJUD 2/15/2023 1:00:00 PM |
HB 38 HJR 2 |
| HB 38 - HJR 2 Research Appropriation Limit Data.pdf |
HJUD 1/27/2023 1:00:00 PM HJUD 2/15/2023 1:00:00 PM |
HB 38 HJR 2 |
| HB 38 - HJR 2 Research GDP information 1.25.23.pdf |
HJUD 1/27/2023 1:00:00 PM HJUD 2/15/2023 1:00:00 PM |
HB 38 HJR 2 |
| HB 38 - HJR 2 Reserach AG Opinion from 1983 1.25.23.pdf |
HJUD 1/27/2023 1:00:00 PM HJUD 2/15/2023 1:00:00 PM |
HB 38 HJR 2 |
| HB 11 - Sponsor Statement- Family Violence.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - v.S (01-25-23).PDF |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Sectional Analysis- Family Violence.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Family Violence Presentation.pptx |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Alaska Family Services Letter of Support.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Letter of Support WISH.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Alaska State Troopers Fiscal Note.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Department of Administration Fiscal Note.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Department of Corrections Fiscal Note.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Department of Law Fiscal Note.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |
| HB 11 - Public Defender Fiscal Note.pdf |
HJUD 1/27/2023 1:00:00 PM |
HB 11 |