Legislature(2017 - 2018)GRUENBERG 120
03/07/2017 03:00 PM STATE AFFAIRS
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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.]