Legislature(2017 - 2018)GRUENBERG 120

03/07/2017 03:00 PM STATE AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 127 CRIM. CONV. OVERTURNED: RECEIVE PAST PFD TELECONFERENCED
Moved HB 127 Out of Committee
-- Public Testimony --
*+ HB 112 SEXUAL ASSAULT BY PEACE OFFICERS TELECONFERENCED
Heard & Held
+= HB 1 ELECTION REGISTRATION AND VOTING TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
            HB 112-SEXUAL ASSAULT BY PEACE OFFICERS                                                                         
                                                                                                                                
3:54:30 PM                                                                                                                    
                                                                                                                                
CHAIR KREISS-TOMKINS  announced that  the next order  of business                                                               
would be HOUSE  BILL NO. 112, "An Act relating  to sexual assault                                                               
by a peace officer against a  person who is a victim, witness, or                                                               
perpetrator of a crime."                                                                                                        
                                                                                                                                
3:54:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MATT  CLAMAN, Alaska  State Legislature,  as prime                                                               
sponsor of HB 112, paraphrased  from paragraph one of the sponsor                                                               
statement,   which   read   as  follows   [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     House Bill  112 adds specific language  to AS 11.41.425                                                                    
     and AS  11.41.427 criminalizing sexual  penetration and                                                                    
     sexual contact  with victims, witnesses,  or defendants                                                                    
     under  active   investigation  by  a   law  enforcement                                                                    
     officer,  effectively clearing  up a  gray area  in the                                                                    
     law. Current law  criminalizes police sexual misconduct                                                                    
     through two  mechanisms: 1. coercion- it  is considered                                                                    
     sexual assault if an individual  is coerced into sexual                                                                    
     contact or intercourse  by threat of arrest,  or, 2. in                                                                    
     custody-it  is   considered  sexual  assault   for  law                                                                    
     enforcement to  have sexual contact  with a  person who                                                                    
     is  in their  custody or  apparent custody.  Neither of                                                                    
     these instances addresses the use  of sexual contact as                                                                    
     an investigative  tool. There have been  reports of law                                                                    
     enforcement officers  engaging in sexual  contact prior                                                                    
     to  arrest,   especially  in  instance   of  undercover                                                                    
     operations, without repercussion.                                                                                          
                                                                                                                                
REPRESENTATIVE  CLAMAN concluded  by saying  that passing  HB 112                                                               
would clarify  a gray area  regarding misconduct to  protect both                                                               
law enforcement officers and the public.                                                                                        
                                                                                                                                
3:55:57 PM                                                                                                                    
                                                                                                                                
OWEN PHILLIPS,  Staff, Representative  Matt Claman,  Alaska State                                                               
Legislature, on  behalf of  Representative Claman,  prime sponsor                                                               
of  HB  112,  paraphrased  from paragraph  four  of  the  sponsor                                                               
statement,   which   read   as  follows   [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     The  goal in  passing House  Bill 112  is clarifying  a                                                                    
     gray   area  regarding   misconduct   to  protect   law                                                                    
     enforcement and  the public alike. This  bill serves to                                                                    
     protect  potential  victims   of  sexual  assault,  and                                                                    
     provide clear  guidelines to law enforcement  to ensure                                                                    
     integrity and public confidence.                                                                                           
                                                                                                                                
MR. PHILLIPS  went on to say  that currently Alaska law  does not                                                               
explicitly   prohibit   the  use   of   sexual   contact  as   an                                                               
investigative  tool.   He stated  that  a research  study at  the                                                               
University of Alaska Fairbanks (UAF)  demonstrated that a quarter                                                               
of the study's  40 participants, comprised of  current and former                                                               
sex  workers,  had been  sexually  assaulted  by law  enforcement                                                               
officers.   He referred  to the Community  United for  Safety and                                                               
Protection  (CUSP)  report,   titled  "Expanding  Protection  for                                                               
Sexual Assault Victims  A Report in Support of AK  House Bill 112                                                               
2/23/17," which details some of those assaults.                                                                                 
                                                                                                                                
MR. PHILLIPS  expressed his belief  that there is  strong support                                                               
for HB  112 and paraphrased  from paragraph three of  the sponsor                                                               
statement,   which   read   as  follows   [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     In  addition,  a  Hays Research  Group  survey  of  900                                                                    
     Alaskans  showed that  92.9% were  unaware that  police                                                                    
     were  allowed to  have sex  during prostitution  stings                                                                    
     and 90.2%  felt that it  should be against the  law for                                                                    
     law  enforcement to  have  sexual  contact with  people                                                                    
     they are investigating.                                                                                                    
                                                                                                                                
4:00:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX referred  to the results of  the UAF survey                                                               
described in paragraph  two of the sponsor  statement, which read                                                               
as follows [original punctuation provided]:                                                                                     
                                                                                                                                
     A research study at the  University of Alaska Fairbanks                                                                    
     surveyed a  diverse group 40  people who had  worked in                                                                    
     Alaska's  sex trade.  Of  those  individuals, 26%  said                                                                    
     they had  been sexually assaulted by  a law enforcement                                                                    
     officer.  60%   of  those  who  had   been  coerced  or                                                                    
     manipulated, and 50%  of those who had  been forced had                                                                    
     been sexually assaulted by an officer.                                                                                     
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked if  those  who  have been  sexually                                                               
assaulted  by  a  law enforcement  officer  are  "covered"  under                                                               
current law.                                                                                                                    
                                                                                                                                
4:01:50 PM                                                                                                                    
                                                                                                                                
HILARY MARTIN,  Attorney, Legislative Legal  Counsel, Legislative                                                               
Legal Services,  Legislative Affairs  Agency, answered  that past                                                               
instances of sexual assault are covered  under the law as it read                                                               
when the acts were committed.   She added that HB 112 would apply                                                               
to offenses that  occurred on or after the effective  date of the                                                               
proposed legislation.                                                                                                           
                                                                                                                                
REPRESENTATIVE LEDOUX requested an  explanation of the statistics                                                               
in paragraph  two of the sponsor  statement and asked if  all the                                                               
individuals  represented by  the  percentages  are covered  under                                                               
current law.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CLAMAN  responded  that  it  is  a  challenge  to                                                               
determine  consensual versus  coercive  conduct in  a sex  worker                                                               
population.  He  offered that the intent of HB  112 is to provide                                                               
protection  in  instances where  consent  is  a more  complicated                                                               
issue, rather than to address more violent sexual assaults.                                                                     
                                                                                                                                
REPRESENTATIVE LEDOUX  offered that she does  not understand what                                                               
paragraph  two [of  the sponsor  statement]  has to  do with  the                                                               
proposed legislation.                                                                                                           
                                                                                                                                
4:04:08 PM                                                                                                                    
                                                                                                                                
TERRA  BURNS,  Community  United for  Safety  Protection  (CUSP),                                                               
stated that she  conducted the UAF research cited  in the sponsor                                                               
statement.   She  relayed that  a quarter  of those  surveyed had                                                               
been sexually assaulted  by a police officer,  and those surveyed                                                               
used their own  definition of sexual assault rather  than a legal                                                               
definition.   She said that about  30 percent of the  sex workers                                                               
surveyed met  the legal  definition of  a sex  trafficking victim                                                               
due  to being  victims of  force, fraud,  or coercion  within the                                                               
industry.    Of  those  30 percent,  60  percent  reported  being                                                               
sexually assaulted by a peace officer.                                                                                          
                                                                                                                                
REPRESENTATIVE  LEDOUX asked  what definition  of sexual  assault                                                               
the survey used.                                                                                                                
                                                                                                                                
MS. BURNS  answered that  the survey  respondents used  their own                                                               
definition,  and no  legal definition  was  given to  them.   She                                                               
relayed two  of the questions  asked:   "Have you had  an officer                                                               
collect  a   freebie  from  you   during  a   prostitution  sting                                                               
operation?"  and "Have  you been  sexually assaulted  by a  peace                                                               
officer?"   She  asserted  that there  was  a strong  correlation                                                               
between the two questions regarding the answers given.                                                                          
                                                                                                                                
4:05:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KNOPP  referred to paragraph three  in the sponsor                                                               
statement and asked  for verification that 10 percent  of the 900                                                               
people  surveyed thought  it was  acceptable for  law enforcement                                                               
officers   to  have   sexual  contact   with  individuals   under                                                               
investigation.                                                                                                                  
                                                                                                                                
MS. BURNS  replied that 6.4  percent of those surveyed  said that                                                               
[sexual contact  in these instances]  should not be  illegal, and                                                               
3.5 percent said they did not know or refused to answer.                                                                        
                                                                                                                                
4:07:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL referred  to the  title of  the bill,  which                                                               
read,  "An Act  relating to  sexual  assault by  a peace  officer                                                               
against a  person who is a  victim, witness, or perpetrator  of a                                                               
crime."   He asked  if HB  112 refers  to any  crime or  just sex                                                               
crimes.                                                                                                                         
                                                                                                                                
REPRESENTATIVE CLAMAN answered  that HB 112 refers  to any crime.                                                               
He  gave as  an example  the Alaska  Supreme Court  case of  2014                                                               
[State of  Alaska v. Public Safety  Employees Association], which                                                             
is  described  in  the  Alaska   Dispatch  News  article,  titled                                                             
"Supreme Court:  Trooper shouldn't have  been fired for  sex with                                                               
domestic violence  victim" and included in  the committee packet.                                                               
He explained that  this case involved a trooper  who responded to                                                               
a  domestic violence  incident.   The trooper  returned the  next                                                               
morning,  out of  uniform,  to talk  to the  victim,  and he  had                                                               
sexual intercourse with her at that time.                                                                                       
                                                                                                                                
REPRESENTATIVE WOOL  posed the hypothetical situation:   A liquor                                                               
store is robbed,  and the clerk is  a witness to the  crime.  The                                                               
police officer investigating the  crime takes the clerk's witness                                                               
account.   The investigation  is open for  six months  or longer.                                                               
The officer happens to go into  the liquor store six months later                                                               
and  strikes up  a conversation  with the  witness of  the crime.                                                               
The case is still unresolved.   He decides to date the witness as                                                               
a private  citizen.  Representative  Wool asked if under  HB 112,                                                               
it  would  be   illegal  for  that  police  officer   to  have  a                                                               
relationship with the witness.                                                                                                  
                                                                                                                                
REPRESENTATIVE CLAMAN  said that he  and his staff  are exploring                                                               
options   for  addressing   situations  such   as  presented   by                                                               
Representative  Wool, both  regarding  active investigations  and                                                               
dormant investigations.  He expressed  his belief that there is a                                                               
gray  area  regarding the  point  at  which an  investigation  is                                                               
dormant.  He  said that the concern is  regarding police officers                                                               
using their positions of influence  to engage in sexual relations                                                               
at  a  time  when  they   are  still  actively  involved  in  the                                                               
investigation.                                                                                                                  
                                                                                                                                
4:10:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   LEDOUX  asked   if   HB  112   would  apply   to                                                               
investigations of traffic accidents.                                                                                            
                                                                                                                                
REPRESENTATIVE CLAMAN  pointed out that  Section 1 and  Section 2                                                               
of HB 112 reference "a  crime under investigation," and he stated                                                               
that a traffic accident is not a crime.                                                                                         
                                                                                                                                
REPRESENTATIVE  LEDOUX mentioned  that  "reckless  driving" is  a                                                               
crime.  She  expressed her concern that  the proposed legislation                                                               
be  limited to  truly  egregious situations  as  opposed to  more                                                               
routine situations.                                                                                                             
                                                                                                                                
REPRESENTATIVE CLAMAN  responded that it  was for that  reason HB
112 specifically  refers to criminal  situations in  which police                                                               
are involved, as opposed to civil situations.                                                                                   
                                                                                                                                
REPRESENTATIVE  LEDOUX offered  the situation  in which  a police                                                               
officer  was investigating  a vehicular  assault.   She  conceded                                                               
that while a police officer asking  for a "freebie" was "a pretty                                                               
tacky  thing to  be doing,"  asking a  witness for  a date  weeks                                                               
after the event "doesn't sound all that awful."                                                                                 
                                                                                                                                
REPRESENTATIVE  CLAMAN   responded  that   Representative  LeDoux                                                               
raised  good  points.    He  said  that  there  are  many  issues                                                               
regarding employment  place conduct and using  positions of power                                                               
and authority  inappropriately.  He  opined that in  the scenario                                                               
described by Representative LeDoux,  most people would agree that                                                               
a public safety officer asking a  witness out two weeks after the                                                               
investigation would be  too soon and would be  considered using a                                                               
position of authority inappropriately.   He added that he did not                                                               
know police departments' views on this.                                                                                         
                                                                                                                                
4:14:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL asked  if  it is  appropriate  for a  police                                                               
officer, in  the course of an  investigation, to have sex  with a                                                               
prostitute to prove that he/she is a prostitute.                                                                                
                                                                                                                                
REPRESENTATIVE CLAMAN  answered that this  is a gray area  in the                                                               
statute  as it  is currently  written, and  he attested  that the                                                               
intent  of  the proposed  legislation  is  to make  this  clearly                                                               
illegal.                                                                                                                        
                                                                                                                                
REPRESENTATIVE WOOL asked if it is  legal for a police officer to                                                               
use drugs  in the  course of  a drug sting  operation.   He added                                                               
that he was not  aware that it was legal for  a police officer to                                                               
engage in  sex with  a prostitute  in the  interest of  making an                                                               
arrest.                                                                                                                         
                                                                                                                                
REPRESENTATIVE CLAMAN said  that his office has yet  to receive a                                                               
clear answer regarding  the use of drugs  by undercover officers.                                                               
He maintained  that the intent of  HB 112 is to  address just the                                                               
one issue - sexual assault by a peace officer.                                                                                  
                                                                                                                                
4:17:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   KNOPP   referred  to   Representative   LeDoux's                                                               
question  about a  car  accident, and  he  maintained that  until                                                               
charges are actually filed, there  is no crime, only a suspicion.                                                               
He  opined  that  a police  officer  should  exercise  discretion                                                               
regarding relationships with anyone  involved in the accident, if                                                               
it  is  still  being  actively  investigated.   He  asked  if  an                                                               
incident is a crime, if charges have not yet been filed.                                                                        
                                                                                                                                
REPRESENTATIVE CLAMAN  maintained that  the existence of  a crime                                                               
is not  dependent on charges  filed.   He offered that  there are                                                               
many  incidents that  everyone  would consider  a  crime and  for                                                               
which no charges have been filed.                                                                                               
                                                                                                                                
4:19:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL  referred  to  his  scenario  regarding  the                                                               
liquor store  robbery.  He suggested  that over the course  of an                                                               
investigation, a  relationship could  develop between  the police                                                               
officer and the witness that  is not exploitive or coercive, like                                                               
a patient  developing a relationship with  his/her caregiver over                                                               
time.  He  stated that under HB 112, the  police officer would be                                                               
committing a crime.  He commented  that although the intent of HB
112 is to  prevent crimes against sex workers, it  could apply to                                                               
situations that are "more nuanced."                                                                                             
                                                                                                                                
REPRESENTATIVE   CLAMAN   suggested   that   the   liquor   store                                                               
investigation might conclude quickly.                                                                                           
                                                                                                                                
REPRESENTATIVE WOOL agreed, but he  suggested that it "seems kind                                                               
of silly" for  the police officer to have to  wait for someone to                                                               
be arrested to ask the witness out.                                                                                             
                                                                                                                                
REPRESENTATIVE  CLAMAN  responded  that his  staff  is  reviewing                                                               
issues such as have been presented.                                                                                             
                                                                                                                                
4:21:48 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  asked for  someone from  Legislative Legal                                                               
and  Research Services  to give  an  opinion on  whether a  "gray                                                               
area"  exists in  current statute  [relating to  the legality  of                                                               
sexual  contact by  a law  enforcement officer  with the  victim,                                                               
witness,  or  defendant under  active  investigation  by the  law                                                               
enforcement officer].                                                                                                           
                                                                                                                                
4:22:23 PM                                                                                                                    
                                                                                                                                
MS.  MARTIN  answered  that she  believes  there  are  unanswered                                                               
questions  regarding active  sting operations.   She  referred to                                                               
the example of  an undercover drug sting operation  and said that                                                               
law  enforcement officers  are  not usually  arrested for  buying                                                               
drugs during the  operations.   She maintained that  the crime of                                                               
prostitution does not  require the act to be  committed, but only                                                               
the offering of [prostitution] services.                                                                                        
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked why  HB  112  would apply  only  to                                                               
police officers and  not district attorneys.   She suggested that                                                               
district attorneys could conceivably date witnesses.                                                                            
                                                                                                                                
REPRESENTATIVE CLAMAN replied  that the concerns that  led to the                                                               
introduction of HB 112 involved  police officers.  He stated that                                                               
his office  has not received  any reports of similar  issues with                                                               
prosecutors.   He added  that if  his staff  receives information                                                               
suggesting a  similar problem regarding prosecutors,  it could be                                                               
added to the proposed legislation.                                                                                              
                                                                                                                                
4:25:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked why  HB  112  would be  limited  to                                                               
investigations.   She added that  when someone has  been charged,                                                               
the investigation is  theoretically over, but a  trial could last                                                               
a long time.                                                                                                                    
                                                                                                                                
REPRESENTATIVE CLAMAN responded that  limiting the application of                                                               
HB  112  to investigations  was  an  attempt to  exclude  dormant                                                               
investigations.                                                                                                                 
                                                                                                                                
4:26:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   TUCK   asked   if   HB  112   would   apply   to                                                               
Transportation Security Administration (TSA) agents.                                                                            
                                                                                                                                
REPRESENTATIVE CLAMAN answered  that it is not  entirely clear if                                                               
TSA officers would be investigating crimes.                                                                                     
                                                                                                                                
4:27:42 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  BIRCH  expressed his  support  for  HB 112.    He                                                               
related  an incident  occurring  in Anchorage  involving a  rogue                                                               
police  officer,  Anthony  Rollins,  which cost  the  city  $5-10                                                               
million in  legal fees.   Representative  Birch relayed  that the                                                               
officer  was  found  in  a  compromising  position  in  a  police                                                               
facility by  a supervisor, who then  walked out.  He  asked if HB
112 would make that kind of engagement clearly illegal.                                                                         
                                                                                                                                
REPRESENTATIVE CLAMAN mentioned that  Mr. Rollins was charged and                                                               
convicted  with first  degree and  possibly second  degree sexual                                                               
assault, which are  crimes under current statutes.   He said that                                                               
HB 112 would  address third and fourth degree  sexual assaults so                                                               
would   not  have   affected   that  case.      He  agreed   with                                                               
Representative Birch  that HB 112 would  provide additional tools                                                               
for sexual assault convictions.                                                                                                 
                                                                                                                                
4:30:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KNOPP  stated  that  he  supports  HB  112.    He                                                               
asserted that  HB 112 would  make the  law "black and  white" for                                                               
police officers  regarding contact  with a  witness, perpetrator,                                                               
or victim during the active investigation of a crime.                                                                           
                                                                                                                                
4:30:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHNSON stated  that  she  supports the  proposed                                                               
legislation as  it relates  to sex workers.   She  suggested that                                                               
committee  discussion  has  identified the  need  for  additional                                                               
language  to  clarify  the  statutes  as  they  relate  to  other                                                               
situations.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CLAMAN agreed  and suggested  that perhaps  using                                                               
the phrase "active investigation" would  narrow down the scope of                                                               
the  proposed  legislation  so   that  it  better  addresses  the                                                               
scenarios presented by committee members.                                                                                       
                                                                                                                                
4:33:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX stated  that she supports the  intent of HB
112.    She   said  that  she  has  a  problem   with  "just  the                                                               
investigation" portion  of it.   She said, "I can't  imagine that                                                               
it  would be  okay for  a law  enforcement officer  to have  sex,                                                               
consensual or not, with somebody  who's actually been charged and                                                               
is on trial."   She added, "Maybe the investigation  is over, but                                                               
there's  a  trial  ...."   She  suggested  that  situation  might                                                               
constitute an unintended loophole.                                                                                              
                                                                                                                                
REPRESENTATIVE CLAMAN conceded that  the committee has posed good                                                               
questions,  and  he  said  his  staff  will  be  consulting  with                                                               
Legislative Legal and Research Services on the issues raised.                                                                   
                                                                                                                                
[HB 112 was held over.]