Legislature(2019 - 2020)GRUENBERG 120
02/20/2020 03:00 PM STATE AFFAIRS
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HB 225-PROSTITUTION/TRAFFICKING; VACATE CONVICT. 4:03:37 PM CO-CHAIR KREISS-TOMKINS announced that the final order of business would be HOUSE BILL NO. 225, "An Act relating to sex trafficking; establishing the crime of patron of a victim of sex trafficking; relating to the crime of human trafficking; relating to sentencing for sex trafficking and patron of a victim of sex trafficking; establishing the process for a vacation of judgment for a conviction of prostitution; and providing for an effective date." 4:03:49 PM JOHN SKIDMORE, Deputy Attorney General, Department of Law (DOL), on behalf of the House Rules Committee by request of the governor, stated that human trafficking is "forced labor"; over 1 million people per year are forced into labor trafficking - or human trafficking - and 25 million currently are victims of human trafficking globally. He mentioned a USA Today article [2/20/20] discussing Airbnb's commitment to fight human trafficking. He said that there are approximately 20,000-50,000 individuals in the U.S. who are victims of human trafficking; and according to [Encyclopedia] Britannica, the U.S. is one of the most significant destinations for victims of sex trafficking. Sex trafficking is the third most profitable business for organized crime, following drug trafficking and arms trades. Organized crime is making $32 billion per year from human trafficking and sex trafficking. He offered that there are federal laws addressing the issue and several states have begun to adjust their laws to align with those of the federal government to ensure that they can appropriately respond to these issues. He cited a 1/30/18 USA Today article which stated that every year 10,000 minors become victims of sex trafficking in the U.S. A 2016 study from the Center for Court Innovation, [entitled "Youth Involvement in the Sex Trade"], reported 8,900-10,500 victims of sex trafficking between the ages of 13-17. He mentioned that the number of women in Alaska domestic violence shelters who are victims of sex trafficking or human trafficking increased 115 percent from 2016 and 2019. He acknowledged that the number is not large - in 2019 only 42 people - but it is increasing. The Alaska Native Justice Center worked with 126 victims in 2018; Priceless Alaska - an anti-sex trafficking organization in Anchorage - is working with 150 survivors of sex trafficking and 16 are in shelter currently. MR. SKIDMORE maintained that human and sex trafficking are issues that impact the state, and Alaska must be prepared to respond appropriately. He said that the goal of HB 225 is to bring Alaska closer in line with the federal government and other states in classifying and in responding to sex trafficking and human trafficking. Under HB 225, Alaska will look at best practices. The effort will take coordination with police departments, the Department of Public Safety (DPS), and the Department of Law (DOL). He asked the committee to assist in ensuring that law enforcement and prosecutors have the tools necessary to participate in this effort effectively. He said that most of the cases in Alaska have been referred to the Federal Bureau of Investigation (FBI) because law enforcement personnel do not believe that Alaska statutes are adequate. 4:10:07 PM MR. SKIDMORE reviewed the sectional analysis, which read: Section 1 is conforming changes to the amendments made in section 2. Section 2 enacts a new offense series; sex trafficking in the first, second, and third degrees. In essence a person is guilty of sex trafficking in the first degree (unclassified sex felony) if the person traffics a person under the age of 20, uses force when trafficking a person, or manages a place of prostitution. A person is guilty of sex trafficking in the second degree (class A sex felony) if the person recruits, entices, or otherwise induces or causes a person to engage in commercial sexual conduct. Sex trafficking in the first and second degrees would be sentenced under the enhanced penalties for sexual felonies and the person would be required to register as a sex offender. 4:14:41 PM A person is guilty of sex trafficking in the third degree if the person provides resources in furtherance of the commission of sex trafficking. Sex trafficking in the third degree is a class B felony if the value of the resources is $200 or more and a class C felony if the value of the resources is less than $200. A person who commits sex trafficking in the third degree would be sentenced under the enhanced sexual felony sentences but would not be required to register as a sex offender. This section also enacts the new crime of "patron of a victim of sex trafficking." A person is guilty of being a patron of a victim of sex trafficking if the person solicits sexual conduct with reckless disregard that the person they are soliciting is a victim of sex trafficking. If the person solicited is under 18 years of age this offense will be a B sex felony. If the person solicited is an adult, this offense will be a C sex felony. This crime would be sentenced under then enhanced penalties for sexual felonies and the person would be required to register as a sex offender. While there are sex trafficking crimes already in statute, these new crimes are broader and have updated language to capture the ways in which sex trafficking actually occurs. The sex trafficking statutes in current law are repealed as that offense will now appear in AS 11.41 as specified in this section. MR. SKIDMORE added that AS 11.41 is traditionally the location of all statutes that represent crimes against persons. He also discussed "a place of prostitution" as not being clearly defined in the proposed legislation: it is not a residence someone is using for himself or herself, but one that the person is allowing someone else to lease for sex trafficking. He acknowledged that the definition needs adjustment. He also explained the justification for the $200 threshold in third degree sex trafficking in terms of the cost of moving victims around Alaska. 4:18:07 PM MR. SKIDMORE continued to review the sectional analysis, which read: Section 3 amends the crime of human trafficking in the first degree to be an unclassified felony when the person uses force against the victim or the victim is under the age of 20. Section 4 denotes that human trafficking in the first degree is an unclassified felony. Section 5 amends human trafficking in the second degree to include situations in which the perpetrator (1) exposes or threatens to expose confidential information or a secret, whether true or false, tending to subject a person to hatred, contempt, or ridicule; (2) destroys, conceals, or threatens to destroy or conceal an actual or purported passport or immigration document or another actual or purported identification document of any person; (3) threatens to report a person to a government agency for the purpose of arrest or deportation; (4) threatens to collect a debt; (5) instills in another person a fear that the person will withhold from any person lodging, food, clothing, or medication; (6) provides or withholds controlled substances from the person; or (7) deceives the victim. Section 6 denotes that human trafficking in the second degree is a class A felony. Section 7 Enacts the new crime of human trafficking in the third degree. A person is guilty of human trafficking in the third degree if the person provides resources in furtherance of human trafficking. Human trafficking in the third degree is a class B felony if the value of the resources is $200 or more and a class C felony if the value of the resources is less than $200. This section also clarifies that corroboration of a victim's testimony is not necessary. This codifies current law in that a jury has the ability to convict based on a victim's testimony alone. This section is in current law and is simply relocated to AS 11.41 along with the rest of the sex trafficking statutes. This section also makes clear that any property used to commit sex or human trafficking may be forfeited. Section 8 is the definition section for sex trafficking and human trafficking. Section 9 clarifies that the crime of coercion is only to be used if the sex trafficking or human trafficking elements are not present. Section 10 cleans up the references to sex trafficking in the prostitution statute. Section 11 makes a conforming change to a provision that is repealed in the repealer section (being a patron of a prostitute under the age of 18). Sections 13 19 make conforming changes to sex trafficking and human trafficking references that appear in those statutes. Section 20 establishes that human trafficking in the first degree, as an unclassified felony, will be sentenced between five and 99 years. Section 21 makes conforming amendments to AS 12.55.125(i), the sex offense sentencing statutes, incorporating the new sex trafficking statutes and patron of a victim of sex trafficking statute. This ensures that these offenses will be subject to the higher sentences associated with sex offenses. 4:25:37 PM Section 22 makes conforming changes to the statutory definition of "most serious felony," by removing sex trafficking in the first degree, which is then added to the statutory definition of "sexual felony" in section 23. Section 23 adds sex trafficking and patron of a victim of sex trafficking to the definition of "sexual felony." Section 24 makes changes to the definition of "serious offense" reflecting the changes made to the sex trafficking and human trafficking statutes. Section 25 adds sex trafficking in the first and second degree and patron of a victim of sex trafficking to the list of registerable sex offenses. Section 26 establishes a process whereby people who have been convicted of prostitution can get that conviction vacated if they are able to show that they were a victim of sex trafficking at the time that they committed the prostitution offense. If the conviction is vacated the court system may not publish records relating to the conviction on CourtView nor may the Department of Public Safety release that information as part of an employment background check. CO-CHAIR KREISS-TOMKINS asked whether the provision described in Section 26 exists in other states. MR. SKIDMORE responded that some states have provisions under which the conviction can be removed; some states mandate that a person under the age of 18 cannot be convicted for prostitution. He added that such modifications could be made to the proposed legislation; he is open to suggestion. 4:30:04 PM REPRESENTATIVE HOPKINS asked why, under the proposed legislation, the victim in a class B misdemeanor would be defined as a criminal. MR. SKIDMORE answered that sex trafficking can victimize anyone of any age; therefore, Section 26 provides that anyone who is a victim could have the conviction removed. He relayed that the focus of many other states is on minors; federal law automatically considers a person under the age of 18 involved with sex trafficking a victim. He maintained that HB 225 is trying to achieve this "best practice"; however, for someone who is age 18 or older, engaging in prostitution is still a class B misdemeanor with a penalty of up to 90 days in jail. For people who are trafficked, the state would still pursue the traffickers while providing the trafficked person a means to maintain that he/she was a victim and should not have the conviction on his/her record. REPRESENTATIVE HOPKINS referred to paragraph four of the 1/24/20 transmittal letter from Governor Michael J. Dunleavy, included in the committee packet, which read: The threat of being charged with a crime is often a tactic that traffickers will use to continue to control their victims. It is important for society to recognize that these victims often have no other choice, and they should not be treated as criminals when they are, in fact, victims themselves. REPRESENTATIVE HOPKINS stated that under Alaska law all the trafficked victims are being criminalized and the burden of proof is on them to have the conviction vacated. He described a scenario of a shipload or a truckload of trafficked victims brought into Alaska from a foreign country or a 20-year-old who has been sex trafficked for the past ten years. The victim would be required to produce evidence and navigate the Alaska Court System. He asked why HB 225 is not written so that these victims would not have to go to court. MR. SKIDMORE responded that individuals in those circumstances would not be prosecuted for prostitution; the state would have no interest in prosecuting them. Law enforcement would ask their cooperation and work with them to build a case for prosecution [of the traffickers]. In answer to Representative Hopkins's question, he offered that the legislature could make the law specific to prevent them from being prosecuted. REPRESENTATIVE HOPKINS asked why that specific law was not included in the proposed legislation. MR. SKIDMORE replied that the approach of the administration was to correct past harms that occurred. The past harm involves people who have already been prosecuted; the proposed legislation was drafted to help those people vacate their convictions. He stated that in the scenario described, prosecutors would not pursue those victims for prosecution; therefore, it was not addressed in HB 225; however, the legislature could prevent it from ever happening through legislation. REPRESENTATIVE HOPKINS expressed his interest in incorporating that provision into the proposed legislation. 4:35:50 PM REPRESENTATIVE VANCE asked whether the wording in the proposed legislation is to distinguish between someone who chooses prostitution and someone who is a victim of sex trafficking. MR. SKIDMORE restated the question: How would we differentiate between those who are victims and those who are not? He maintained that it is an important challenge - how to differentiate and who makes that determination. He offered that other states have focused on minors; he hasn't seen a provision that addresses adults. MR. SKIDMORE continued to review the sectional analysis, which read: Sections 27 29 make conforming changes to the changes made to the sex trafficking statutes. Section 30 clarifies that if a person's prostitution conviction made them ineligible for a permanent fund dividend and that conviction was vacated under section 26 of the bill, the person would be eligible for a permeant fund dividend from the date of the vacation forward. Sections 31-34 make conforming changes to the changes made to the sex trafficking statutes. Section 35 is the repealer section. Section 36 is the applicability section. The majority of this bill will apply to offenses occurring on or after the effective date. Section 37 establishes the effective date as July 1, 2020. 4:39:55 PM REPRESENTATIVE HOPKINS asked whether a victim working to vacate a class B misdemeanor crime would have access to a public defender or would have to hire an attorney. 4:40:57 PM SAMANTHA CHEROT, Public Defender, Public Defender Agency, answered that under HB 225, there would not be a mechanism for the victim to have an appointed counsel in that type of situation. REPRESENTATIVE STORY relayed that she has heard that for people engaged in prostitution, it is not a choice; it has more to do with the economic system, a limited income, and the need to provide for a family. CO-CHAIR KREISS-TOMKINS stated HB 225 would be held over.