Legislature(2019 - 2020)GRUENBERG 120

04/25/2019 05:15 PM House JUDICIARY

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05:15:56 PM Start
05:17:35 PM HB145
05:52:56 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
-- Public Testimony --
        HB 145-PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS                                                                    
5:17:35 PM                                                                                                                    
CHAIR CLAMAN announced  that the only order of  business would be                                                               
HOUSE  BILL NO.  145,  "An  Act relating  to  crime and  criminal                                                               
procedure; establishing the crime  of possession of motor vehicle                                                               
theft  tools;  relating  to controlled  substances;  relating  to                                                               
credit   toward  a   sentence   of   imprisonment;  relating   to                                                               
sentencing; relating  to registration of sex  offenders; relating                                                               
to the definition of 'sex  offender or child kidnapper'; relating                                                               
to operating under  the influence; relating to  refusal to submit                                                               
to a  chemical test; relating  to the duties of  the commissioner                                                               
of  corrections;   relating  to   the  Alaska   Criminal  Justice                                                               
Commission; relating  to the duties  of the attorney  general and                                                               
the  Department of  Law; requiring  law  enforcement agencies  to                                                               
test sexual  assault examination kits; requiring  notification of                                                               
completion  of testing;  relating to  reports on  untested sexual                                                               
assault examination  kits; and relating  to public  disclosure of                                                               
information relating to certain minors."                                                                                        
5:18:32 PM                                                                                                                    
CHAIR  CLAMAN  noted that,  at  the  previous bill  hearing,  the                                                               
committee  raised  questions  related to  indecent  pictures  and                                                               
parental consent.  He asked  about the statutory history relating                                                               
to age  of consent.   He also asked  for the Department  of Law's                                                               
(DOL) perspective on the matter.                                                                                                
KACI  SCHROEDER, Assistant  Attorney General,  Criminal Division,                                                               
Department  of  Law,  confirmed  that  the  sections  in  HB  145                                                               
relating  to indecent  viewing and  production of  a picture  are                                                               
identical to  sections found in  SB 35, sponsored by  [the Senate                                                               
Rules  Standing  Committee  on behalf  of]  Governor  Michael  J.                                                               
Dunleavy.   She recalled testifying  that the  underlying statute                                                               
is "quite  messy  and confusing  to practitioners.  She  said DOL                                                               
has  recently  discovered that  the  underlying  statute is  even                                                               
messier  than  anticipated  and  that  some  sections  appear  to                                                               
conflict with  each other.  She  noted that some sections  of the                                                               
statute deal with  knowledge and consent -  particularly the ages                                                               
at  which  people  must  give  consent -  but  there  is  also  a                                                               
definition of "private exposure"  that requires "circumstances in                                                               
which [one] would  not expect the defendant to  be seeing [one's]                                                               
body."  She  said this raises the question of  how consent can be                                                               
given.   She said these  issues came to  light in the  Senate and                                                               
that they are being addressed, but  DOL does not currently have a                                                               
resolution  to rectify  the potential  conflicts.   She said  she                                                               
researched  the  legislative  history and  described  discussions                                                               
therein related  to consent.   But, she noted, the  definition of                                                               
"private  exposure"   appears  to  override   statutory  language                                                               
relating to consent.                                                                                                            
CHAIR CLAMAN asked a question about  age of consent.  He remarked                                                               
that the current age at which one  may consent on one's own is 13                                                               
and that HB 145 would change it  to 16.  He asked for information                                                               
about the issues that arise "with 13 versus 16."                                                                                
MS. SCHROEDER  said the law  currently reads that a  person under                                                               
the age of  13 needs parental consent, a person  between the ages                                                               
of  13  and  16  needs  both parental  consent  and  his/her  own                                                               
consent, and  a person 16  or older  can consent on  his/her own.                                                               
She said the  Senate "found that disturbing" and did  not want to                                                               
permit a  parent to consent to  the private exposure of  an older                                                               
child, so it  removed parental consent entirely and made  it so a                                                               
person under the age of 16  could not consent to having a private                                                               
picture taken  of themselves.  She  noted that there has  been no                                                               
adjustment  to  the  definition  of  "private  exposure"  so  the                                                               
conflict still exists.                                                                                                          
5:22:02 PM                                                                                                                    
REPRESENTATIVE KOPP referenced AS  11.41.455(a), which covers the                                                               
crime of  unlawful exploitation  of a  minor.   He noted  that it                                                               
sets "the bright line" at 18  years of age for matters related to                                                               
the  production  of pornographic  content  or  inducement of  sex                                                               
acts.  He  added that the provision relating  to parental consent                                                               
contains  language  about  the guardian  knowingly  allowing  the                                                               
exploitation to  happen when the child  is under 18.   He said he                                                               
is  trying to  reconcile the  language  in that  statute and  the                                                               
language  in the  statute  relating to  the  indecent viewing  or                                                               
production of  an image.   He  asked if  it is  just a  matter of                                                               
legislative policy.                                                                                                             
MS. SCHROEDER  said it is,  to some  degree.  She  clarified that                                                               
"unlawful  exploitation" relates  to the  lewd exhibition  of the                                                               
child, which means  the child is doing something lewd.   She said                                                               
the indecent viewing  or production of a  picture statute relates                                                               
only to  the exposure of the  child, so no lewd  act is depicted.                                                               
Thus, she explained, it is different conduct.                                                                                   
5:24:10 PM                                                                                                                    
CHAIR CLAMAN noted  that there are provisions in  HB 145 relating                                                               
to third-time  drug offenses  that were  pulled from  HB 10.   He                                                               
said  the  committee might  consider  an  amendment installing  a                                                               
lookback period  for prior  convictions that  might bump  a third                                                               
offense  to  the felony  level.    He  asked  whether DOL  has  a                                                               
perspective on the matter.                                                                                                      
MS. SCHROEDER said she and  Deputy Attorney General Rob Henderson                                                               
decided  10 years  would be  an appropriate  lookback period  for                                                               
cases in  which an  offense would  trigger a  felony.   She added                                                               
that the lookback period for misdemeanors is 5 years.                                                                           
CHAIR CLAMAN asked  a question about the  interplay between state                                                               
and federal  prosecutors regarding  larger quantity  drug dealing                                                               
MS. SCHROEDER  said state prosecutors  work closely  with federal                                                               
prosecutors when  determining when it  is appropriate for  a case                                                               
to be  federally prosecuted.   She said  the decision to  "kick a                                                               
case up"  to the federal  prosecutors is made after  weighing the                                                               
totality of  circumstances, including the quantity  of the drugs,                                                               
whether  the  offender  has  copious  weapons  and/or  cash,  and                                                               
whether  the  trafficking  occurred  across  state  lines.    She                                                               
explained that a  decision is made regarding  which punishment is                                                               
most appropriate  and that  determines who takes  the case.   She                                                               
noted that the  federal government has fewer  than 15 prosecutors                                                               
in Alaska  and they operate on  limited resources, so that  is an                                                               
additional factor they consider.                                                                                                
5:26:54 PM                                                                                                                    
REPRESENTATIVE WOOL raised  the topic of sexting.   He noted that                                                               
sexting would not be directly  targeted by the proposed statutory                                                               
changes but could be affected by them.                                                                                          
MS. SCHROEDER clarified that DOL  does not charge individuals for                                                               
sharing photos  if they  are in a  relationship or  sexting under                                                               
the "indecent  viewing" statute.   She explained  that it  is for                                                               
situations akin to a person setting  up a camera in a bathroom to                                                               
capture private exposure without the victim's awareness.                                                                        
5:28:34 PM                                                                                                                    
REPRESENTATIVE  EASTMAN  asked  what  statute would  be  used  to                                                               
address a  situation in which  a person in a  relationship shares                                                               
private content to people outside the relationship.                                                                             
MS.  SCHROEDER said  various statutes  could be  used to  address                                                               
that type of conduct.  She  said the crime of sending an explicit                                                               
image  of a  minor involves  sending or  posting a  photo of  the                                                               
genitals, anus,  or breast of  someone under  the age of  16 with                                                               
intent to  annoy or humiliate.   She  clarified that to  post the                                                               
photo on a website would be a  class A misdemeanor and to send it                                                               
to another  person would  be a  class B  misdemeanor.   She added                                                               
that  harassment  in  the  second  degree  includes  a  provision                                                               
relating to the sending of images.                                                                                              
5:29:46 PM                                                                                                                    
CHAIR CLAMAN asked for additional  information about the proposed                                                               
changes  to  the indecent  production  of  a picture  statute  as                                                               
relates to the age of a victim.                                                                                                 
5:30:17 PM                                                                                                                    
BETH GOLDSTEIN,  Interim Public Defender, Alaska  Public Defender                                                               
Agency, said  the agency has  reviewed the  proposed legislation,                                                               
particularly  the  section raising  the  age  of consent  to  16,                                                               
thereby doing  away with  the means  of a  13- to  15-year-old to                                                               
consent  to  be  photographed  or, as  is  currently  written  in                                                               
statute, even  to be viewed in  person.  She said  it appears the                                                               
proposed  change  would  cause  significant  tension  with  other                                                               
existing  statutes,  specifically the  sexual  abuse  of a  minor                                                               
statute.   She explained  that, while  consent at  the age  of 16                                                               
comports with  the age of  consent to  engage in sex,  the sexual                                                               
abuse  of  a  minor  statute      AS  11.41.436(a)(1)     permits                                                               
teenagers aged 13, 14, and 15  to engage in sex where the partner                                                               
is at least 17  years old and as long as  their age difference is                                                               
no more  than 4  years.   She explained that  her reading  of the                                                               
proposed legislation is that, under  AS 11.41.436(a)(1), it would                                                               
not be illegal for a 17-year-old  to have sex with a 15-year-old,                                                               
but it would  be a violation of the indecent  viewing statute for                                                               
the 17-year-old  to view  the private  exposure of  the genitals,                                                               
anus, or female breast of  the 15-year-old without the consent of                                                               
the 15-year-old's parent  or guardian.  "They can  have sex," she                                                               
clarified, "but they can't look at each other."                                                                                 
MS. GOLDSTEIN stated that the  current law also requires parental                                                               
consent, but the 17-year-old is not  at risk because the state of                                                               
Alaska  (SOA) is  not  required to  prove both  the  lack of  the                                                               
parent's consent  and the 15-year-old's  consent.   She clarified                                                               
that,  as long  as the  15-year-old is  engaging in  a consensual                                                               
relationship  with the  17-year-old,  SOA would  not  be able  to                                                               
convict  the latter  under the  current statute.   She  said this                                                               
offers protection to the 17-year-old  if the 15-year-old's parent                                                               
does  not  approve of  the  relationship  and seeks  prosecution.                                                               
But, she said, under the  proposed legislation, the 15-year-old's                                                               
consent would  be irrelevant, thus  resulting in  the 17-year-old                                                               
being guilty of a  class C felony.  She added  that, were the two                                                               
teenagers to  engage in consensual sexting  where the 17-year-old                                                               
takes a  picture of the  15-year-old's breasts with  the 15-year-                                                               
old's  consent, the  17-year-old would  be  guilty of  a class  B                                                               
felony.   She  noted that  the 17-year-old  in this  hypothetical                                                               
would  be tried  in juvenile  court, however  SOA would  have the                                                               
option to  seek a waiver of  the juvenile into adult  court.  She                                                               
explained  that, as  a  juvenile, the  17-year-old  would not  be                                                               
subject  to  the  sentencing statutes  regarding  sexual  assault                                                               
sexual felonies.   But,  she said, an  18-year-old engaging  in a                                                               
legal relationship with a 15-year-old  would not have the benefit                                                               
of juvenile court  and would be subject to  the presumptive terms                                                               
of 5 to 15  years in prison for production of a  picture and 2 to                                                               
12 years in prison for viewing a picture.                                                                                       
5:34:10 PM                                                                                                                    
MS. GOLDSTEIN noted  that the HB 145  sectional analysis document                                                               
[included  in the  committee  packet] states  that  the crime  of                                                               
indecent viewing or  production of a picture where  the victim is                                                               
16 or younger  would be a registerable sex offense.   She pointed                                                               
out that the bill does not  amend the definition of  sex offense                                                                
so as to subject convicted offenders  to a duty to register.  She                                                               
explained  that the  duty to  register comes  from AS  12.63.010.                                                               
She  said   the  definition  of   "sex  offender   found   in  AS                                                               
12.63.100(6) does not include any  aspect of the indecent viewing                                                               
statute and HB  145 does not amend the definition  to include the                                                               
[indisc.] involving minor victims.   However, she noted, there is                                                               
a  potential  that  a  juvenile adjudicated  of  the  offense  in                                                               
Alaska's  juvenile  system  would  nevertheless  be  required  to                                                               
register  upon moving  to another  state,  such as  to attend  to                                                               
college.   She said there  are more  than 30 states  that require                                                               
registration  for  juvenile offenses  if  an  offense similar  to                                                               
indecent viewing  or production of  a picture is  included within                                                               
the [state's] lists of registerable offenses.                                                                                   
5:35:42 PM                                                                                                                    
REPRESENTATIVE LEDOUX asked for  confirmation that, under current                                                               
law, the  hypothetical juveniles  can have  sex with  each other,                                                               
but under  the proposed law, it  would be a felony  for the older                                                               
juvenile to take a picture of the younger one.                                                                                  
MS. GOLDSTEIN  said the age of  consent would be raised  to 16 so                                                               
it could be  a felony unless both the parent  and the 15-year-old                                                               
are consenting.                                                                                                                 
REPRESENTATIVE  LEDOUX  asked if  the  age  of consent  would  be                                                               
raised for sex as well as the pictures.                                                                                         
MS. GOLDSTEIN said  it does not appear that the  bill would amend                                                               
the sexual abuse of a minor statute.                                                                                            
REPRESENTATIVE LEDOUX  asked for verification that  the juveniles                                                               
would not  have to ask permission  to have sex but  would have to                                                               
ask permission to take pictures.                                                                                                
MS.  GOLDSTEIN clarified  that it  would not  just be  for taking                                                               
pictures, but even to view body parts.                                                                                          
REPRESENTATIVE LEDOUX said, "That's ridiculous."                                                                                
5:37:10 PM                                                                                                                    
REPRESENTATIVE  WOOL raised  the topic  of  age of  consent.   He                                                               
asked  if a  person has  to be  16 years  old to  consent to  sex                                                               
unless the partner is within three years of age or is under 18.                                                                 
MS. GOLDSTEIN answered yes.   She explained that the sexual abuse                                                               
of a minor statute specifically reads  that a teenager who is 13,                                                               
14, or 15 can  engage in sex where the partner is  17 or older as                                                               
long as there is no more than 4 years of age difference.                                                                        
REPRESENTATIVE WOOL established a  hypothetical scenario in which                                                               
two teenagers    ages 17 and  15   are  dating.  He said  the 17-                                                               
year-old then turns  18.  He asked if the  now-18-year-old is now                                                               
breaking the law.                                                                                                               
MS. GOLDSTEIN  said a relationship  between an 18-year-old  and a                                                               
15-year-old is fine.   She said it would be  a legal relationship                                                               
under the  sexual abuse of  a minor statute  as long as  there is                                                               
not more than four years in  age difference and the older partner                                                               
is 17-year-old or older.                                                                                                        
REPRESENTATIVE WOOL asked  if it is correct that  they would just                                                               
not be able to take a photo of the younger teen and look at it.                                                                 
MS. GOLDSTEIN  said they  could not  take a  picture and,  as the                                                               
legislation is written,  they could not look at each  other.  She                                                               
clarified that the older one could not look at the younger one.                                                                 
5:40:04 PM                                                                                                                    
CHAIR CLAMAN opened public testimony on HB 145.                                                                                 
5:40:33 PM                                                                                                                    
DON  HABEGER,  Community  Coordinator, Juneau  Reentry  Coalition                                                               
(JREC), said the  mission of JREC is to  promote community safety                                                               
by identifying and implementing  strategies that increase reentry                                                               
success for those  returning to the community  after release from                                                               
incarceration.   He  said JREC  recognizes  that "smart  justice"                                                               
requires  a balance  of accountability  to  the community,  laws,                                                               
rules, and  regulations.  He  added that  appropriate enforcement                                                               
and sanctions  are part of  that accountability.  He  said "smart                                                               
justice"  also  includes  appropriate and  functioning  community                                                               
services  and  treatment  options,  such  as  behavioral  health,                                                               
access  to  affordable  housing,  and employment  training.    He                                                               
explained  that those  services are  necessary to  aid successful                                                               
reentry and sustained  recovery.  He said HB 145  seems to strike                                                               
an appropriate  balance by providing enforcement  tools while not                                                               
undoing   rehabilitative  gains   achieved  through   changes  in                                                               
Alaska's criminal laws since 2016.   He said JREC is thankful for                                                               
attempts to  strike that balance.   He stated that  JREC approves                                                               
of HB 145.                                                                                                                      
5:42:25 PM                                                                                                                    
NORIA CLARK  expressed her frustration  that the  opportunity for                                                               
the public  to testify on  HB 145  was not well-publicized.   She                                                               
characterized HB  145 as "a  watered-down bill."  She  noted that                                                               
the  public has  replaced and  will continue  to replace  elected                                                               
officials who  do not "stand  up for  us."  She  criticized Chair                                                               
Claman for his role in introducing HB 145.                                                                                      
CHAIR CLAMAN advised  Ms. Clark that she may testify  on the bill                                                               
but may not  use this time to criticize legislators.   He invited                                                               
her to direct criticism to his office.                                                                                          
MS. CLARK  said she thinks the  bill is "garbage."   She stressed                                                               
that  the  First Amendment  of  the  Constitution of  the  United                                                               
States  gives her  the  right to  say whatever  she  wants.   She                                                               
referenced the arrest of a man  earlier in the day after "hurting                                                               
other people."   She expressed her disapproval of  Senate Bill 91                                                               
[Passed  in the  Twenty-Ninth Alaska  State Legislature]  and her                                                               
doubts about HB  145.  She stated that this  is a terrifying time                                                               
in Alaska.   She stressed that testimony  opportunities should be                                                               
better publicized so the public can participate.                                                                                
5:45:34 PM                                                                                                                    
KATIE BOTZ  relayed that she has  testified on a number  of crime                                                               
bills during  the current session.   She identified herself  as a                                                               
victim  of sexual  abuse and  expressed displeasure  that HB  145                                                               
does not include provisions relating  to strangulation and sexual                                                               
abuse.   She added  that HB  145 does not  address the  issues of                                                               
pornography,  sexual  abuse of  a  minor,  the use  of  dangerous                                                               
instruments, the  definition of "sexual contact,"  longer periods                                                               
of incarceration  for convicts,  sexual contact  without consent,                                                               
sexual penetration without consent,  exploitation of a child, sex                                                               
trafficking,  prior convictions  both in  and out  of state,  the                                                               
employment   of   law   enforcement  officers,   harassment,   or                                                               
possession of  firearms.   She said  there is  nothing in  HB 145                                                               
that  is "victim-oriented"  or that  supports  victims of  sexual                                                               
abuse.  She called HB 145 a good starting point.                                                                                
5:48:18 PM                                                                                                                    
BERT HOUGHTALING  expressed his displeasure with  the timeline of                                                               
the   bill's  introduction   and  the   opportunity  for   public                                                               
testimony.   He called the  bill flawed.   He said  the committee                                                               
should instead take up  HB 49, HB 50, HB 51, and HB  52.  He said                                                               
those  bills would  fix Alaska's  crime problem.   He  referenced                                                               
data from  the Pew Research  Center presented to  the legislature                                                               
in 2014  and called the  data "flawed."   He referenced  a recent                                                               
presentation  offered   to  a  Senate  committee   that  he  said                                                               
presented "the  actual numbers."   He argued that  recidivism had                                                               
already dropped 32 percent before Senate  Bill 91 was passed.  He                                                               
argued that  recidivism has climbed  because criminals  are being                                                               
24 hours  after arrest.  He  said the numbers show  that crime is                                                               
getting worse.   He opined  that HB 145  would do nothing  to fix                                                               
the crime problem.                                                                                                              
5:50:25 PM                                                                                                                    
SALLY JOHNSON  called HB  145 "junk" and  asked the  committee to                                                               
consider Governor Dunleavy's  crime bills.  She  said Senate Bill                                                               
91 resulted in  increased crime rates.  She stated  that she does                                                               
not feel safe in  Palmer and that she is not  the only person who                                                               
feels  that  way.    She  called  the  Matanuska-Susitna  Valley,                                                               
Anchorage,  and  Fairbanks dangerous  and  noted  that Alaska  is                                                               
currently the most  dangerous state in the nation.   She repeated                                                               
that she wants the committee to  take up the governor's bills and                                                               
fix the problem.                                                                                                                
5:51:38 PM                                                                                                                    
CHAIR  CLAMAN closed  public  testimony.   HB  145  was held  for                                                               
further review.                                                                                                                 

Document Name Date/Time Subjects
HB145 ver U 4.24.19.PDF HJUD 4/24/2019 1:00:00 PM
HJUD 4/25/2019 5:15:00 PM
HJUD 4/26/2019 1:00:00 PM
HB 145
HB145 Sponsor Statement ver U 4.24.19.pdf HJUD 4/24/2019 1:00:00 PM
HJUD 4/25/2019 5:15:00 PM
HJUD 4/26/2019 1:00:00 PM
HB 145
HB145 Sectional Analysis ver U 4.24.19.pdf HJUD 4/24/2019 1:00:00 PM
HJUD 4/25/2019 5:15:00 PM
HJUD 4/26/2019 1:00:00 PM
HB 145