Legislature(2013 - 2014)CAPITOL 120

04/14/2014 01:00 PM House JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
--Delayed to 1:30 p.m. Today--
Heard & Held
Heard & Held
Moved CSHB 370(L&C) Out of Committee
Heard & Held
Moved HCS CSSB 128(JUD) Out of Committee
Scheduled But Not Heard
<Bill Hearing Canceled>
+ Bills Previously Heard/Scheduled TELECONFERENCED
           SB 170-AFFIRMATIVE DEFENSE TO PROSTITUTION                                                                       
3:39:18 PM                                                                                                                    
CHAIR KELLER announced  that the next order of  business would be                                                               
SENATE BILL NO.  170, "An Act relating to a  defense to the crime                                                               
of prostitution for victims of sex trafficking."                                                                                
3:39:27 PM                                                                                                                    
SENATOR BERTA  GARDNER, Alaska State Legislator,  speaking as the                                                               
prime sponsor  informed the committee  that SB  170 is part  of a                                                               
national effort  to provide as  a defense against  a prostitution                                                               
charge, the chance to demonstrate  to the prosecutor that one has                                                               
been  "trafficked" and  forced  into  prostitution against  their                                                               
will.   The  bill also  allows  the prosecutor  to prosecute  the                                                               
3:40:43 PM                                                                                                                    
STEVEN  HANDY,   Staff,  Senator  Berta  Gardner,   Alaska  State                                                               
Legislature, in response  to Representative Lynn, said  a pimp is                                                               
one who  traffics the  prostitute and is  actually the  target of                                                               
the bill.   The purpose is  to not "double victimize"  the person                                                               
who  is  being  trafficked,  first  by  the  situation  and  also                                                               
arrested for prostitution.                                                                                                      
REPRESENTATIVE LYNN noted that those  prostituting do so for many                                                               
different  reasons, and  pimps may  be coercive,  cooperative, or                                                               
MR. HANDY said  if the prostitute - hereafter referred  to as the                                                               
sex traffic  victim - evokes  the affirmative  defense authorized                                                               
by the  bill, the sex  traffic victim  is obligated to  work with                                                               
the  prosecutor   and  law  enforcement   to  identify   the  sex                                                               
trafficker.    The affirmative  defense  would  not get  the  sex                                                               
traffic victim "off  the hook" as the  decision regarding charges                                                               
against the  sex traffic victim occurs  in court, and not  in the                                                               
REPRESENTATIVE PRUITT  stated that  prostitution takes  place for                                                               
several  different reasons,  and  questioned how  the bill  would                                                               
only apply  to those who are  sex traffic victims.   He said, "If                                                               
there's  an individual  that's in  that, they're  just trying  to                                                               
make money ... it's a different scenario ...."                                                                                  
MR. HANDY  explained the prosecution would  determine whether the                                                               
affirmative defense is valid.   The sex traffic victim evoking an                                                               
affirmative defense  would have  to identify the  sex trafficker,                                                               
and there would follow an investigation by law enforcement.                                                                     
3:45:16 PM                                                                                                                    
REPRESENTATIVE  PRUITT asked  for  clarification  on whether  any                                                               
instance  of prostitution  would garner  an affirmative  defense,                                                               
which is the "lowest level of  challenge ... on a conviction from                                                               
prosecution to address."                                                                                                        
MR. HANDY  said, "That's  a definite  no, it  would not  apply to                                                               
somebody who was doing this because that's their choice."                                                                       
REPRESENTATIVE  LEDOUX pointed  out that  a prosecutor  in a  sex                                                               
trafficking case can choose whether  or not to prosecute someone;                                                               
therefore, an affirmative defense  leaves the decision ultimately                                                               
up to a jury.                                                                                                                   
MR.  HANDY  explained  that  the  definition  of  an  affirmative                                                               
defense is that there are  situations outside of the charges that                                                               
could  excuse the  defendant  from the  charges.   The  situation                                                               
arises  after  a   person  is  arrested  and   charged,  and  the                                                               
affirmative defense is a tool to get out of the charge.                                                                         
3:48:21 PM                                                                                                                    
CHAIR KELLER opened public testimony.                                                                                           
3:48:44 PM                                                                                                                    
SARALYN  TABACHNICK, Executive  Director, Aiding  Women in  Abuse                                                               
and Rape  Emergencies, Inc. (AWARE), informed  the committee that                                                               
often  women who  are  involved in  prostitution  are victims  of                                                               
domestic violence and  sexual assault who have  been coerced into                                                               
sex trafficking.   Senate Bill 170 creates an  avenue for victims                                                               
to come forward, to be believed, and treated with respect.                                                                      
3:49:49 PM                                                                                                                    
TARA RUPANI, Member, Community United  for Safety and Protection,                                                               
representing  herself, said  she  is a  graduate  student at  the                                                               
University of  Alaska Fairbanks  (UAF).   Ms. Rupani  stated that                                                               
her research  into sex trafficking  legislation [House  Bill 359]                                                               
[passed] in 2012, has only  been used against alleged prostitutes                                                               
who  were  charged  with  prostitution  in  connection  with  sex                                                               
trafficking cases.   For example, in a case  with sex trafficking                                                               
victims,   the  victims   were   arrested   and  prosecuted   for                                                               
prostitution,  and  during  2012  or 2013,  all  those  who  were                                                               
charged  in  Alaska  under  state  law  were  also  charged  with                                                               
trafficking.  Ms. Rupani said  she was disappointed to learn that                                                               
the proposed  legislation would not  help any of the  victims who                                                               
have  been charged  under state  law, including  Keyana Marshall,                                                               
who  was charged  with  federal counts  of  sex trafficking,  and                                                               
would  not  have  been  able to  access  an  affirmative  defense                                                               
because  multiple sex  traffickers were  involved.   Furthermore,                                                               
the bill  is not intended to  help those who have  ever willingly                                                               
engaged  in the  sex industry,  but only  those who  were induced                                                               
into  prostitution, which  creates a  fourth legal  definition of                                                               
sex trafficking  and a distinction  between some victims  who are                                                               
deserving of  protection, and  others who are  not; in  fact, all                                                               
sex  trafficking   victims  in  Alaska  should   have  access  to                                                               
protection  without  being  arrested.   Ms.  Rupani  opined  that                                                               
allowing victims of  sex trafficking access to  protection is the                                                               
first step to putting sex  traffickers in jail, however, "if only                                                               
good victims can call the police  it's actually going to make sex                                                               
trafficking worse.... ... [Because]  they target people that they                                                               
know  who ...  already believe  that  they don't  have access  to                                                               
protection  from the  police."   She stated  that those  who have                                                               
worked in the  sex industry should be able  to access protection.                                                               
She referred to "safe harbor"  laws that have been implemented in                                                               
California and New York, and  stressed that criminalizing victims                                                               
is  a huge  human rights  issue that  has been  addressed by  the                                                               
United  Nations.    Ms.  Rupani said  arresting  victims  of  sex                                                               
trafficking violates the Trafficking  Victims Protection Act, and                                                               
the proposed bill is not the  solution to the situation in Alaska                                                               
where law enforcement continues to  defend its decision to arrest                                                               
and charge sex  trafficking victims.  She concluded  that, "A law                                                               
that condemns  most victims  while purporting  to protect  only a                                                               
few victims who  are seen as worthy or good  is going to increase                                                               
sex trafficking rather than decrease it in Alaska."                                                                             
3:55:23 PM                                                                                                                    
REPRESENTATIVE LEDOUX asked whether Ms. Rupani's position is                                                                    
that any prostitute is coerced into prostitution and should not                                                                 
be prosecuted.                                                                                                                  
MS. RUPANI said absolutely not.                                                                                                 
3:55:51 PM                                                                                                                    
KAYT SUNWOOD, read Keyana Marshall's statement as follows:                                                                      
     The trauma  of being forced, coerced  into prostitution                                                                    
     is  a  scary shameful  situation.    This can  leave  a                                                                    
     victim emotionally,  mentally, and  physically scarred.                                                                    
     To criminalize  a victim  is extremely  cruel, however,                                                                    
     with   no    protective   laws   in   place.       Such                                                                    
     criminalization  and  punishment  is of  unethical  and                                                                    
     immoral proportions.  I am  familiar with this scenario                                                                    
     because it happened  to me.  It wounded  me deeply when                                                                    
     members of  the APD  vice unit  ridiculed me  for being                                                                    
     pimped.    As they  arrested  me  and  placed me  in  a                                                                    
     vehicle, they  said something  to the  effect of:   Our                                                                    
     car  isn't  as nice  as  the  Mercedes Benz  your  pimp                                                                    
     drives.  Or  things like:  I know he  wonders where you                                                                    
     are, or,  Get back to him.   I was a  human trafficking                                                                    
     victim  from  ages 15  through  21.    I have  had  two                                                                    
     abusers  take advantage  of me.   I  am now  stuck with                                                                    
     mental memories  of their abusive  actions and  if that                                                                    
     didn't make  me feel like I  had just no say  in my own                                                                    
     actions,  prison   did.    Being  a   victim  of  abuse                                                                    
     shouldn't be a crime.   Anyone who is being forced into                                                                    
     any prostitution-related activities  should not be held                                                                    
     liable   for   crimes   committed   in   reference   to                                                                    
     prostitution    or   conspiracy,    charges   involving                                                                    
     prostitution.   When  we define  the word  "victim" the                                                                    
     definitions  are:    (1)   an  unfortunate  person  who                                                                    
     suffers from  some adverse  circumstance; (2)  a person                                                                    
     who  is  tricked or  swindled.    Unfortunately, I  can                                                                    
     easily  apply  these  definitions  to myself.    I  was                                                                    
     trafficked  by a  woman  whom I  used  to babysit  for.                                                                    
     When  she  disappeared and  went  to  prison, the  next                                                                    
     perpetrator was  an abusive, angry, violent,  male.  He                                                                    
     tore  down  my   spirit  and  I  went   to  prison  for                                                                    
     prostitution.  These incidents  would have not happened                                                                    
     had I not been trafficked,  drugged, and abused by this                                                                    
     man.   I  spent nearly  three years  in prison  after I                                                                    
     agreed to  turn state's  evidence.   I did  that hoping                                                                    
     someone would  identify the problem.   Instead  I heard                                                                    
     things like:   Crazy,  or Sorry  that happened  to you.                                                                    
     No  victims' services  were  offered to  me.   I  think                                                                    
     passing  a bill  where  victims  are protected,  rather                                                                    
     than  criminalized  and re-victimized,  is  desperately                                                                    
     needed.    Please  make  sure  SB  170  truly  protects                                                                    
     victims,  rather   than  setting  up   good  victim/bad                                                                    
     victim, and criminalizing some.   As is this bill falls                                                                    
     short.   If  the  intent  of this  bill  is to  address                                                                    
     trafficking,  make  it  safe  for  those  who  are  sex                                                                    
     trafficked, to help end sex trafficking.                                                                                   
3:59:44 PM                                                                                                                    
JON DUKE, Professor, Department  of Justice, University of Alaska                                                               
Fairbanks,  informed the  committee  he was  a  retired chief  of                                                               
police from California and a  consultant to Senator Gardner on SB
170.  Mr. Duke urged the  committee to support SB 170 for several                                                               
reasons.  The  bill changes the way justice  is delivered without                                                               
weakening  tools  to control  vice.    Justice professionals  are                                                               
bound to  enforce the law,  and even  when aware that  victims of                                                               
sex trafficking are often forced to  break the law, agents of the                                                               
state may not  be able to exercise leniency.   Proposed SB 170 is                                                               
needed  to enrich  justice by  increasing the  options available.                                                               
In  addition, SB  170 would  raise awareness,  reduce stigma  and                                                               
self-recrimination,  reduce victims'  shame, and  empower victims                                                               
to ask  for help  to escape their  plight, and  utilize community                                                               
resources  to   heal.    Ultimately,   victims  will   feel  more                                                               
comfortable  cooperating with  police  to prosecute  traffickers.                                                               
Mr. Duke urged the committee to support SB 170.                                                                                 
4:02:26 PM                                                                                                                    
MAXINE   DOOGAN,  Member,   Community  United   for  Safety   and                                                               
Protection,  informed  the  committee the  Community  United  for                                                               
Safety  and Protection  is a  group of  sex trafficking  victims,                                                               
current  and retired  sex workers,  and their  allies in  Alaska.                                                               
She  said  she  was  born   and  raised  in  Fairbanks,  and  her                                                               
organization opposes SB [170] because  it is overbroad in that it                                                               
puts the burden of proof on the  victim who is the defendant in a                                                               
criminal  proceeding.    The  bill also  creates  a  loophole  of                                                               
arbitrary enforcement  which allows  the prosecutor  to reinstate                                                               
charges  against   the  sex  trafficking  victim   following  the                                                               
unsuccessful  prosecution of  sex traffickers.   In  addition, SB
170 does not  offer immunity from prosecution,  and she cautioned                                                               
that  there   may  be  the   unintended  consequences   of  false                                                               
accusations.    Ms.  Doogan  said   prostitution  should  not  be                                                               
illegal, and the bill does not  provide a way for sex trafficking                                                               
victims to have their convictions  vacated.  Finally, SB 170 does                                                               
not provide  any identity protection for  sex trafficking victims                                                               
who are  being prosecuted  for prostitution.   She urged  for the                                                               
removal  of  the  criminalization  of prostitution  in  order  to                                                               
provide access  to equal  protection under  the law,  and thereby                                                               
reduce incidents of exploitation in  Alaska.  Ms. Doogan said she                                                               
opposes SB 170.                                                                                                                 
4:05:14 PM                                                                                                                    
CHAIR  KELLER, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony.                                                                                               
REPRESENTATIVE  GRUENBERG  asked  Mr. Svobodny  to  describe  the                                                               
quantity  of  proof  required  from   a  defendant  to  prove  an                                                               
affirmative defense in a criminal case.                                                                                         
4:06:00 PM                                                                                                                    
RICHARD  SVOBODNY,  Deputy   Attorney  General,  Central  Office,                                                               
Criminal  Division,   Department  of   Law,  recalled   that  the                                                               
requirement is a preponderance of  evidence, and is not "beyond a                                                               
reasonable doubt."  He said  he would confirm his recollection as                                                               
soon as possible.                                                                                                               
REPRESENTATIVE GRUENBERG  cautioned that  the bill is  written so                                                               
that the  burden of proof  will shift  to the defendant  to prove                                                               
that  they are  a sex  trafficking victim  by a  preponderance of                                                               
evidence -  or a level  higher -  which would be  very difficult.                                                               
He  encouraged  the sponsor  to  consider  that  that may  be  an                                                               
insurmountable burden in many cases.                                                                                            
REPRESENTATIVE PRUITT agreed  that the defendants would  be "in a                                                               
very difficult  spot," and  may already  have concerns  that they                                                               
cannot trust  the police or the  authorities.  He said  he agreed                                                               
with the intent of the legislation,  but the bill may put more of                                                               
a burden on the victims.                                                                                                        
REPRESENTATIVE LEDOUX disagreed.   She suggested that the sponsor                                                               
and DOL consider  adding an element of proof  that the prosecutor                                                               
needs to prove beyond a  reasonable doubt that the defendants are                                                               
not sex trafficking victims.                                                                                                    
REPRESENTATIVE GRUENBERG reminded the  committee of a previously-                                                               
heard bill  related to  an affirmative defense  for the  crime of                                                               
someone  who  encounters  a  victim  of a  drug  overdose.    The                                                               
language used in that bill was  that the defendant had to produce                                                               
some  evidence,  and the  prosecutor  had  to disprove  beyond  a                                                               
reasonable doubt.                                                                                                               
MR.  SVOBODNY interjected  that  it is  a  "preponderance of  the                                                               
[SB 170 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB 315 Opposition Letter~ANDVSA.pdf HJUD 4/14/2014 1:00:00 PM
HB 315
HB 315 Support Letter~Lance Roberts.pdf HJUD 4/14/2014 1:00:00 PM
HB 315
HB 315 Support Letter~Mike Prax.pdf HJUD 4/14/2014 1:00:00 PM
HB 315
HB370 Sectional Analysis.pdf HJUD 4/14/2014 1:00:00 PM
HB 370
HB370 Supporting Documents-Health Partners Opiate Drug Screens.pdf HJUD 4/14/2014 1:00:00 PM
HB 370
HB 370 Support Document~National Council on Compensation Insurance.pdf HJUD 4/14/2014 1:00:00 PM
HB 370
SCR 2 Questions and Answers Posed by (S) Judiciary.PDF HJUD 4/14/2014 1:00:00 PM
SCR 2 Support Document~Report by Alaska Timber Jobs Task Force.PDF HJUD 4/14/2014 1:00:00 PM
SCR 2 Support-Opposition.pdf HJUD 4/14/2014 1:00:00 PM
SCR 2 Opposition Letter~Eric Lee.pdf HJUD 4/14/2014 1:00:00 PM
HCSCSSB 128 (JUD) ver. H Draft.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Leg. Legal Memo~Harassment of vulnerable adults.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Leg. Legal Memo~Legal Issues.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Support Document~Cyberbullying Fact Sheet.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Support Document~Misc. News Articles.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Support Letter~AK Nurses Association.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
CSSB 173 Fiscal Note~PDA Updated.pdf HJUD 4/14/2014 1:00:00 PM
SB 173